General (scope, time limits)
As already mentioned, the BFA is a specific department of the Ministry of interior, dealing with asylum matters. In 2014, the tasks of the BAF were further extended to cover some immigration law procedures.
According to the General Administrative Procedures Act (AVG), decisions have to be taken within 6 months after the application for international protection has been lodged. Within 20 calendar days, the BFA has to decide whether it intends to reject the application as inadmissible due to the responsibility of another Member State under the Dublin Regulation, the application of the safe third country concept or in case of subsequent asylum applications, or to dismiss the application for other reasons. Since 2018, the admissibility procedure may be prolonged by lifting the 20 days deadline in manifestly unfounded cases. However, if no information about the intention to reject the application is issued within 20 calendar days, the application is automatically admitted into the regular procedure. Thus, the asylum-seeker should receive the preliminary residence permit as asylum seeker and be allocated to the reception system of a federal province. On the contrary, if the asylum application is deemed inadmissible the asylum-seeker receives legal assistance and has to be heard in presence of his/her lawyer. There is no legal remedy against this procedural order.
If no procedural order is notified to the asylum seeker within 20 days, the asylum application is admitted to the regular procedure – except in Dublin cases if requests to other Member States to take charge or take back the asylum seeker are made within this time frame. An amendment to Article 22 AsylG, which entered into force on 1 June 2016, allowed for the extension of the duration of procedures at first instance up to 15 months. This exceptional prolongation is no longer applicable since 1 June 2018, however.
In case of delay from the BFA, the asylum seeker may request that the case be referred to the Federal Administrative Court for a decision (Säumnisbeschwerde). However, in practice asylum seekers do not frequently make such requests, as they miss a chance of receiving a positive decision at first instance (by the BFA).
In case of delay from the Federal Administrative Court, a request for the establishment of a deadline may be addressed to the Administrative High Court.
In 2021, the average duration of the asylum procedure at first instance amounted to 3.2 months, compared to 3.9 months in 2020  and to 2.3 months in 2019, 6.6 months at the beginning of 2018 and 14 months at the beginning of 2017.  While the average time in 2019 and 2020 refers to all asylum procedures at first instance, the Ministry of Interior stated that the average duration was 6 months for regular procedures and 27 days for fast track procedures (which concerned 750 cases) in 2018. In 2020, 807 applications were fast tracked, out of which 405 were rejected within 72 hours by the BFA. In 27 cases the decision was appealed but the rejection was then upheld by the BVwG. The average length of the fast track procedure was 22,7 days in 2020.
In 2021, the number of decisions taken in the fast track procedure increased significantly. 2,581 decisions were taken in the fast track procedures (compared to 524 in 2020) and an additional 1,100 cases were channeled into the so called accelerated procedure (compared to 293 in 2020). The average length of the fast track procedure was 28.2 days. In the accelerated procedure which mostly applies to persons from countries listed as safe countries of origin and manifestly ill-founded applications (Morocco: 1,014; Pakistan: 621; Egypt: 567), a decision is usually taken within 72 hours. In 68% of the cases the decisions were taken within this time frame as well. Only one decision of the accelerated procedure cases was lifted up by the BVwG.
|Year||Fast-track procedure||Accelerated procedure||Total|
Source: Ministry of Interior, Answer to parliamentary request 9531/AB XXVII. GP, 11 April 2022
The increase of the average length of the procedure in 2020 and 2021 is due inter alia to the impact of COVID-19. As mentioned above, the BFA did not completely suspend its activities in 2020 but only conducted interviews in cases where a convicted person was involved or when the application was manifestly ill founded. The BFA issued asylum decisions but the interim legal measures taken foresaw that, when a negative decision was issued and delivered between 21 March and 1 May 2020, the appeal period did not start running before 1 May 2020. This means that during this period, personal interviews were only conducted at a very small scale and fewer decisions were issued.
At the end of 2021, a total of 27,880 cases were pending, out of which 19,529 at first instance and 8,351 at second instance. This shows that the second instance managed to reduce the backlog of the years before: At the end of 2020, a total of 21,217 cases were pending, out of which 5,700 at first instance and 15,147 cases at second instance. The number of pending cases at second instance decreased compared to 2019 (23,142), but increased at first instance (4,014 in 2019). In comparison, there were 7,535 cases pending at first instance in 2018; 32,241 cases in 2017 and 63,912 in 2016.
|Backlog of pending cases at first and second instance: 2021|
Source: Ministry of Interior, Annual statistics 2021, available in German at: https://bit.ly/3reCMJW.
Prioritised examination and fast-track processing
The time limit for decisions for the BFA and the Federal Administrative Court are reduced to 3 months in case the asylum seeker is detained pending deportation. The same maximum time limit applies to the “procedure for the initiation of a measure terminating residence” (see Accelerated Procedure).
In 2021, he practice of fast-track processing focused on applicants coming from countries listed as “safe countries of origin” and on applicants who have already been sentenced by a criminal court. The great majority of fast track processing deals with cases from applicants originating from so called safe countries of origin. This is due to the fact that the list of safe countries of origin has been extended to countries such as Algeria, Tunisia, Morocco, Georgia and Ghana (see Safe Country of Origin).
All asylum seekers must undergo a personal interview, provided that they have legal capacity to do so. At the start of each interview, asylum seekers are asked whether they feel physically and psychologically fit for the interview. If not, the interview will be postponed. In practice, however, interviews are rarely postponed, as asylum seekers fear that it would have negative consequences on their case, and because interviewers’ have little knowledge on the potential consequences of health issues on the interview.
During the first months of COVID-19 in 2020, applications for international protection had to be lodged in person and the interview on travel routes was also conducted in person. All further steps were suspended in most cases as more that 50% of the personnel of the BFA was working remotely from home on decisions where interviews had already been conducted or cases of prolongation of subsidiary protection (when a personal interview was not necessary). All other submissions had to be brought in by electronic communication by the asylum seekers during the first months and overall the BFA prioritised electronical communication as COVID-19 measures. Applications for humanitarian status (Article 57 AsylG) could be submitted in in written form. Interviews were conducted in cases where persons had committed a criminal offense at all times since the start of the pandemic. In 2021, most routines concerning interviews from pre-Covid-19 were re-established.
Asylum seekers are further subject to an interrogation by security services shortly after lodging the application for the purposes of the Dublin and Admissibility Procedure. These interrogations are carried out with a view to establish the identity and the travel route of the asylum seeker. They should not, however, refer to the merits of the application such as specific reasons for fleeing and lodging an asylum application. Despite the fact that the interrogation is conducted by the police and not by caseworkers of the BFA, the statements made by the asylum seeker at this stage of the admissibility procedure have an important impact on the asylum procedure as they are accorded particular importance by the BFA. The Constitutional Court confirmed in a judgement of 2012 that reasons for applying for international protection shall not be in the focus of the first interview conducted by police services.
Asylum seekers may be accompanied by a person they trust (i.e. person of confidence) and unaccompanied children can not be interviewed without the presence of their legal representative.
The law further provides for a choice of interviewer according to gender considerations in cases where the asylum seeker’s fear of persecution is related to sexual self-determination. The authorities must demonstrate that they have informed the asylum applicant of the possibility to be interviewed by an official of the same sex. In practice, however, this is not consistently applied with regard to interpreters. In the appeal procedure, infringements of the right to sexual self-determination have to be expressed in the written appeal in order to have the hearing at the Court held by a judge of the same sex. The Constitutional Court ruled that UNHCR guidelines have to be applied to male asylum seekers accordingly.
Interpreters are provided by the BFA and cover most of the languages, but interviews may also be conducted in a language the asylum seeker is deemed to understand sufficiently. The provision of interpreters has been reported as not satisfactory with regard to certain languages, even in cases where a significant number of asylum seekers may be concerned (e.g. Chechen refugees are often interviewed in Russian). Asylum seekers from African countries are often interviewed in English or French, languages that they are “supposed” to understand. Asylum seekers are asked at the beginning of the interview if they understand the interpreter. There are no standards for the qualification of interpreters in asylum procedures. Interpretation is often not done by accredited interpreters; usually persons with the requested language knowledge are contracted on a case-by-case basis. UNHCR has published a training manual for interpreters in asylum procedures.
The Federal Law on the Establishment of the Federal Agency for Care and Support Services Limited Liability Company (BBU-G) passed in June 2019 foresees that a federal agency annexed to the Ministry of Interior should be responsible for the provision of interpreters for the purpose of asylum procedures as of 1 January 2021. This includes the provision of interpreters both at first and second instance, but also in case of oral hearings in front of the BVwG as well as in procedures concerning basic support. The law lists a wide range of areas in which interpreters should be provided by the federal agency, inter alia for interviews related to the making of an application for international protection; for measures relating to the termination of the right to stay as well as for the granting or limitation of basic services. As of January 2021, nine interpreters (five full time equivalent) were employed by the BBU GmbH. In practice, the service provided by internal interpreters were not of great relevance but is to be seen as a test phase for a possible expansion of the department in future. The state-run agency took over the existing system established by the NGOs. In most cases, external interpreters were hired throughout 2021.
Videoconferencing, recording and transcript
Article 19(3) AsylG allows for tape recording of the interview, which is, however, rarely used in practice. Video conferencing was introduced in 2018. The BFA in Burgenland held interviews to assist the BFA in Vienna and in Vorarlberg in this context. This new practice is based on Art. 51a of the General Administrative Act, which allows the use of technical facilities for word and image transmission – unless a personal interview is necessary for economical or personal reasons.
There are concerns about the practice of conducting interviews through video conferencing as there is no standard procedure to handle these new tools and they raise issues of confidentiality and procedural rights. Lawyers have reported that there has been an increase of videoconferencing by the BFA and BVwGH during 2020. In most cases, it is up to the applicant and the legal representative to arrange the necessary technical equipment. Issues reported in certain cases include: a judge turning off the video during a court session; the impossibility to see the translator on video; the fact that in certain cases the judges did not allow the legal representative to sit in the room as the applicant; or the fact that in certain cases a protocol was sent without encryption.
It should be noted that, as part of its BRIDGE project, UNHCR has produced a checklist “Self-check for interviews and negotiations using technical equipment for word and image transmission in the asylum procedure” for videoconferences in asylum procedures.
The transcript is more or less verbatim. Its content may depend on the caseworkers’ and interpreter’s summarising the answers, choosing expressions that fit the transcript or translating each sentence of the asylum seeker. Immediately after the interview, the transcript is translated by the same interpreter in a language the asylum seeker understands and the asylum seeker has the possibility to ask for corrections and completion immediately after the interview. By signing the transcript, they agree with its content. If asylum seekers find something incorrect in the transcript after having signed it at the end of the interview, they should send a written statement to the BFA as soon as possible. In practice, asylum seekers do not frequently ask immediately after the interview for correction of the report. Some asylum seekers explain that they were too tired to be able to follow the translation of the transcript. The OHCHR stated in its report on the mission to Austria from October 2018 that many caseworkers of the BFA are not adequately trained in using techniques that fit the needs of asylum applicants. In a number of cases monitored by the OHCHR, negative decisions of the BFA were based on personal views and involved biased questioning during interviews as well as stereotypes on gender and race. NGOs providing legal advice continued to report to asylkoordination, including in 2021, that asylum seekers often realise that mistakes in the translation or the transcript were made when they receive a negative first instance decision and a legal adviser explains them the details of the transcript.
Appeal before the BVwG
Appeals against a negative first instance decision have to be submitted within 4 weeks of the receipt of the decision and the whole asylum file is forwarded by the BFA to the Federal Administrative Court (BVwG). However, following an amendment that came into effect on 1 September 2018, the time limit has been set at 2 weeks for appeals in inadmissibility procedures and in cases of status withdrawals that were initiated along with a return decision.
Within 2 months following the lodging of an appeal, the BFA may decide to modify the decision that is being challenged. This means that it can decide either to annul, reject or change its initial decision. However, where the BFA refrains from modifying its decision, it forwards the appeal to the Court.
In case refugee status or subsidiary protection status is not granted by the BFA, the asylum applicant will be assigned a free legal adviser provided by the state at the time of notification of the first instance decision. Since January 2021, legal assistance is provided by a new federal agency, however.
Article 18(1) BFA-VG provides that the suspensive effect of the appeal may be withdrawn by the BFA where the application is manifestly unfounded, i.e. where:
- The applicant comes from a safe country of origin;
- Has already been resident in Austria for at least 3 months prior to the lodging of the application;
- The applicant has attempted to deceive the BFA concerning their true identity or nationality or the authenticity of their documents;
- The asylum seeker has not adduced any reasons for persecution;
- The allegations made by the asylum seeker concerning the danger they face clearly do not correspond with reality;
- An enforceable deportation order or an enforceable entry ban was issued against the asylum seeker prior to the lodging of the application for international protection; or
- The asylum seeker refuses to give fingerprints.
Moreover, the BFA must withdraw the suspensive effect of an appeal where:
- The immediate departure of the third-country national is required for reasons of public policy or public security;
- The third-country national has violated an entry ban and has returned to Austrian territory; or
- There is a risk of absconding.
The BVwG must grant automatic suspensive effect within 1 week from the lodging of the appeal, where it assumes that return would expose the concerned person to a real risk of a violation of Articles 2, 3, 8 and 13 ECHR or Protocols 6; or to a serious threat to life or person by reason of indiscriminate violence in situations of conflict in line with Article 15(c) of the recast Qualification Directive. The reasons must be set out in the main complaint.
Appeals against the rejection of an application with suspensive effect have to be ruled by the Court within 8 weeks. The asylum appeal has suspensive effect as long as the case is pending in court.
The BVwG is organised in chambers, each of which is responsible for certain groups of countries. In recent years, the Court processed appeals on asylum cases as follows:
|Processed Appeals at the BVwG: 2016-2021|
|Number of processed cases||18,760||20,000||24,000||20,000||17,900||17,100|
|Number of pending cases||12,497||24,063||30,168||22,842||15,147||8,351|
Source: Ministry of Justice, answer to parliamentary request 9532/AB XXVII GP, 11 April 2022, available in German at: https://bit.ly/3O7TwfH.
Following the increase of appeals and backlog of cases at second instance, judges from different fields of law have gradually been assigned to decide upon asylum procedures since 2017; despite their lack of expertise on asylum-related matters. In 2020, the BVwG concluded 17,900 procedures in which 21,500 decisions were taken. 9,730 decisions of the BFA were dismissed or amended by the BVwG, while 9,400 decisions of the BFA were confirmed. For the year 2022, 120 out of 218 judges of the BVwG will be assigned to take decision in asylum and alien’s law cases.
The BVwG can request another hearing and additional examinations if necessary. Reversely, the BFA-VG also allows for exceptions to a personal hearing on an appeal; i.e. an appeal must not be held if the facts seem to be established from the case file or if it is established that the submission of the applicant does not correspond to the facts. This provision must be read in light of the restrictions on the submission of new facts in the appeal procedure.
During the first months of the COVID-19 (until Mid-April 2020), all court hearings were suspended. Court hearings started to resume in the second half of April in some cases and continuously increased in the following months. Due to the fact COVID-19 measures were considered as an interference with the independence of judges, there were no mandatory COVID-19 rules inside the Court rooms. Some judges asked persons present in the room to wear a mask and opened windows, whereas in other cases there were hardly any measures applied. In cases involving vulnerable persons, the legal representation tried to postpone the Court hearing, which often was respected in practice. In many cases, the access of the general public to court hearings was restricted in light of COVID-19. These restrictions were applied by some judges until March 2021. It should be further noted that video conferencing tools are available at a small scale at the Courts, but they are used very rarely.
The question whether a personal hearing before the BVwG has to take place or not has been brought before the Constitutional Court (VfGH). The Court ruled that not holding a personal hearing in the appeal procedure does not violate Article 47(2) of the EU Charter of Fundamental Rights. Charter rights may be pleaded before the Constitutional Court. The Court stated that Article 41(7) AsylG, is in line with Article 47(2) of the EU Charter if the applicant was heard in the administrative procedure. However, subsequent rulings of the Administrative High Court and the Constitutional Court have conversely specified the obligation of the Administrative Court to conduct a personal hearing. In the case of an Afghan asylum seeker, the Administrative Court had confirmed the first instance decision which found the asylum seeker’s application to be lacking credibility due to discrepancies in statements about his age. The Constitutional Court ruled that, by deciding without a personal hearing, the Administrative Court had violated the right laid down in Article 47(2) of the EU Charter. Two rulings to the same effect were delivered by the Constitutional Court in September 2014.
The Administrative High Court has specified that all relevant facts have to be assessed by the determining authority and have to be up to date at the time of the decision of the court. It further stated that it was not necessary to explicitly request an oral hearing if the facts were not sufficiently clear or if the statements of the applicant in his or her appeal contradicted the statements taken by the first instance authority.
The possible outcome of an appeal can be the granting of a status, the refusal of a status, or a referral by the BVwG back to the BFA for further investigations and a re-examination of the case. Hearings at the Court are public, but the public may be excluded on certain grounds. Decisions of the BVwG are published on the legal information website of the Federal Chancellery.
As regards the average processing time for the appeal body to make a decision, the Ministry of Justice indicated that 22.4% of appeals challenging decisions of the BFA in asylum procedures were concluded within 6 months in 2020, while 17.4% took longer than 3 years. 409 Dublin cases were decided in 2020, of which 353 were decided within 6 months (86%). Disaggregated data on the average processing time at second instance were shared in 2020 as follows:
|Average processing time at second instance:2020-2021|
|Up to 6 months||3,550||3,575|
|Between 6 months and 1 year||1,354||954|
|Between 1 and 2 year||3,382||1,566|
|Between 2 and 3 years||4,803||3,597|
|More than 3 years||2,763||5,712|
Onward appeal before the VwGH
Decisions of the BVwG may be appealed before the VwGH. The eligibility to appeal to the VwGH is determined by the BVwG, but in case the Administrative Court declares a regular revision as inadmissible, the asylum seeker may lodge an “extraordinary” revision. For that purpose, the applicant may submit a request for free legal assistance as well as for the suspensive effect of the complaint.
Out of 2,130 (2020: 1,633) revisions conducted in 2021, 18 (2020: 35) were regular revisions and 2,112 (2020: 1,598) were extraordinary revisions. In 2020, out of the 35 regular revisions, 11 were requested by the determining authority and 24 by applicants. Out of the 1,598 extraordinary revisions, 172 were requested the determining authority and 1,426 by applicants. Corresponding data for 2021 is not available. In 2021, 268 revisions were granted and the decision of the BVwG has been lifted up.
In case the asylum applicant seeks to challenge the decision in front of the BVwG and if he or she claims it is violating a constitutional right, he or she can lodge an within 6 weeks, after the ruling of the Federal Administrative Court has become final. Asylum seekers are informed of the possibility to address a complaint to the Constitutional Court in writing and this information is translated in a language the asylum seeker understands. In that context, it has to be mentioned that the ECHR is part of Austria’s constitutional law. Therefore the risk of violation of Articles 2, 3 or 8 ECHR can be challenged in front of the Constitutional Court, while the rejection of an application for international protection does not fall under the Court’s competence. The appeal does not have automatic suspensive effect, however. Around 97 decisions of the BVwG, in which the decision was considered arbitrary, have been ruled unlawful by the Constitutional Court in 2019. In 2020, 107 decisions have been considered arbitrary and ruled unlawful by the Constitutional Court. No data was available in 2021 at the time of writing.
Asylum seekers face difficulties to access constitutional appeals as the payment of a fee of €240 is required to that end. Furthermore, asylum seekers are not heard in person before the Constitutional Court, which rather requests written statements from the BVwG.
Legal assistance at first instance
In June 2019, the Austrian Parliament adopted a law establishing a Federal Agency for Care and Support Services (Bundesagentur für Betreuungs- und Unterstützungsleistungen, BBU GmbH) which is in charge inter alia of providing legal assistance to asylum seekers at first and second instance since 1 January 2021. The new law has been criticised by several organisations, as it raises concerns over the risk of arbitrary access to free legal assistance. In its Legal note on the Austrian law, ECRE demonstrated that while access to legal assistance at first instance was the general rule under the previous Article 49(1) BFA-VG, it becomes the exception under the new law. With the exception of unaccompanied minors, legal assistance at first instance shall now only be provided according to the “available possibilities”, and does not constitute a right, except in specific cases listed in the Asylum Act. In other words, access to free legal assistance at first instance is only granted when existing resources are available (e.g. staff and funding), and is not a right for all.
Moreover, the reform introduces a new threshold which grants the asylum applicant the right to free legal assistance by the Agency only if an appointment – during which the applicant exercises his or her right to be heard – is scheduled within 72 hours (3 days) after having been notified by the BFA of the intention to reject the asylum application. This means that, if the BFA grants the asylum applicant the right to be heard at a later stage (e.g. in 4 or 5 days), free legal assistance by the Agency will only be available if resources so allow. Consequently, there is a risk of arbitrary access to free legal assistance at first instance which will largely depend on the BFA’s goodwill allowing the asylum applicant to be heard in due time.
The Government officially cancelled on 28 February 2020 the extension of the contracts with the NGOs
previously providing legal assistance. As of 2021, these organisations will thus no longer receive funding for the purpose of legal assistance, which has been heavily criticised by civil society organisations.
The BBU GmbH started providing legal counselling and representation on 1 January 2021. Caritas (Styria) and VMÖ offered counselling services at first instance until the end of 2020 which was funded by the Asylum, Migration and Integratoin Fund (AMIF). The BBU GmbH also has some AMIF funded capacities in first instance and provides open counselling in first instance as long as “possibilities are available”. The counselling services are provided at the buildings of the regional directorates of the BFA. There is no funding for transportation costs for persons willing to receive counselling at this stage. At first instance, the BBU GmbH has the legal obligation to provide legal counselling in all procedures where the first interview by the BFA is conducted within 72 hours. In these procedures, the counsellors of the BBU also have to take part in the interviews carried out with the BFA. At the time of writing, this concerned mainly subsequent applications, fast track procedures and procedures at the airport. The BBU GmbH is not being appointed in Dublin cases by the BFA and therefore is not involved in interviews in these procedures in general in first instance.
It should be noted, however, that the previous legal aid-system in place until the end of 2020 did also not meet the needs of asylum seekers. VMÖ, which received most of the funding for legal assistance in the first instance procedure, was criticised for not being very helpful nor committed to the protection of the rights of asylum seekers due to its cooperation with the Ministry of Interior.
The new head of the legal counselling of the BBU GmbH is the former head of the legal counselling unit at Diakonie Flüchtlingsdienst, which formed part of ARGE Rechtsberatung. While the BBU GmbH is a federal agency owned by the Ministry of Interior, the head of legal counselling (and the counsellors themselves) are not bound by directives of the CEO of the BBU GmbH. The head of legal counselling is appointed by the Ministry of Justice and has the technical supervision, while administrative/disciplinary supervision lies under the responsibility of the CEO of BBU GmbH. This fairly complex construction should prevent pressure and interference from the Ministry of Interior (which is also the head of the BFA) on the legal counselling unit.
The BBU GmbH provides legal counselling in the framework of a AMIF funded counselling project. The legal counselling takes place in the facilities of the first instance authority which creates a lack of trust. The counselling can be accessed during working hours without appointment. There is no representation offered by the BBU GmbH and the service offered is not oriented on the actual needs but on the limits of the AMIF funding.
Legal assistance in appeals
Legal aid provided by external service providers up until 2020
From 1 October 2011 up until the end of 2020, the mandatory access to free legal aid at appeal stage was provided by external service providers, i.e. ARGE Rechtsberatung (Diakonie Flüchtlingsdienst and Volkshilfe OÖ). In this system, when an application for international protection was rejected, a legal adviser was automatically assigned to the asylum applicant by the determining authority. Asylum applicants could also decide to contact an NGO offering free legal advice to asylum applicants, however. There was no cooperation among NGOs with VMÖ as the latter seemed to be very close to the authorities and demonstrated a poor quality of legal counselling services. There was however a cooperation with ARGE Rechtsberatung and other organisations working in the field.
The tasks of these organisations were laid down in law and entailed the obligation to provide advice in case of dismissal of the application. Legal advisers were to be present at hearings before the Administrative Court if the asylum seeker so requested. Asylum seekers should be able to make effective use of their right to legal advice, in accordance with procedural guarantees, EU law and in line with the jurisprudence of the Higher Administrative Court.
Although the role of the legal adviser in such a hearing was unclear following the 2015 amendment, the Constitutional Court clarified on 9 March 2016 that legal advisers who are summoned to the hearing at the Court have to represent the asylum seekers before the Court, if applicants so requests. Since 1 October 2016, the wording of Article 52 BFA-VG is as follows: “at their request, they shall also represent the foreigners or asylum seekers concerned in the proceedings, including at a hearing.”
Financial compensation for legal assistance ordered by decree was insufficient. The NGO Diakonie Flüchtlingsdienst as part of ARGE Rechtsberatung (one of two legal counselling providers contracted by the Ministry of Interior) reported in April 2019 that – due to the low refunding rates – it had to add in around €860.000 from its own budget. This problem continued: Diakonie hat to contribute around €600.000 from its own donations to finance adequate counselling services.
Legal aid provided by the new BBU GmbH since 2021
The BBU GmbH counselling unit is now composed of former employees of Diakonie Flüchtlingsdienst and VMÖ. The BBU GmbH was obliged to offer jobs to all employees of the latter organisations. As of January 2021, a total of 120 counsellors were working in 12 different offices throughout the country. While in the past legal advisers did not have to meet specific qualifications or training standards, all future advisors must hold a degree in law from an Austrian University and have completed a compulsory internship at a court. These requirements do not apply, however, to all previous staff already employed at VMÖ and ARGE organisations.
As opposed to the previous legal aid system where the contract between the service providers and the government did not foresee quality standards for the provision legal aid; the new contract between the BBU GmBH and the government has improved this aspect. A particular concern was the fact that the quality of legal aid provided by VMÖ largely depended on the individual counsellor. It is questionable whether this will improve in practice given that the same staff has been employed by the new BBU GmBH. Nevertheless, the head of the counselling unit of the BBU GmbH, Stephan Klammer, announced that future training activities will be standardised and that every advisor will undergo basic trainings on asylum and procedural law. Every counsellor must also take exams with the aim to ensure common quality standards.
The future tasks of the BBU GmbH include counselling, representation and explanation of judgement. The law requires counselling to be ‘objective’. The advisors will have to explain the perspective the applicants have. If the applicants request representation, the advisors have to act in favour of partisan interests. The main tasks will consist in writing appeals as legal representatives and representation in court sessions. The mandate prescribed by law ends upon receipt of the final decision of the Court, although the BBU GmbH must then still explain the content of the judgement and explain the perspectives. As the provision of legal aid must also meet the conditions of Article 47 of the EU Charter, it must ensure an effective access to the High Courts. Upon request by the applicants in cases where the judgement has chances to be lifted up by the High Courts, the BBU GmbH must support the applicants in obtaining free legal aid from the normal legal aid system.
The start of the activities of the BBU GmbH in January 2021 was described as chaotic and not very well organised due to a lack of interest of the Ministry of Interior which does not seem eager to invest in a working legal representation system. Nevertheless, within three weeks, the BBU GmbH had already taken over representation in almost 3,000 cases and over 180 court sessions.
One project run by Caritas Austria offers assistance during the hearing before the Federal Administrative Court, but this resource is limited and therefore only a certain number of cases can be assisted. AMIF funding is no longer guaranteed but the project continues on a smaller scale with alternative funding. It will work at a very small scale also during 2021.
Besides this free legal advice funded by the state, NGOs help asylum seekers lodging appeals and submitting written statements, accompany them to personal hearings at the Federal Administrative Court and may act as legal representatives. NGOs cannot represent asylum seekers before the Constitutional Court or the Administrative High Court, as this can only be done by an attorney-at-law.
Legal assistance free of charge is provided in case of the rejection of a subsequent asylum application on res judicata grounds too. The Constitutional Court and the Administrative High Court apply a merits test and tend to refuse free legal aid, if the case has little chance of succeeding. The BBU-G introduces a worrying change in this regard. The law only includes an obligation to inform applicants of the prospects of success of their appeal without stipulating any consequences. However, the approach suggested by the impact assessment of the law, if applied in practice by the Federal Agency, is extremely problematic. Whereas the recast APD does not specify which other authorities could be considered competent to apply a merits test, entrusting the Federal Agency with that task will create an obvious conflict of interest. Moreover, where another authority than a court or tribunal carries out a merits test, the applicant must have the right to an effective remedy before a court or tribunal against that decision, according to Article 20(3) recast Asylum Procedures Directive. If in practice the Federal Agency were to refuse free legal assistance and representation on that basis without the applicant having an effective opportunity to challenge that decision before a court or tribunal, there would be a clear breach of the recast Asylum Procedures Directive.
Overall, the Austrian law of June 2019 introduced drastic changes with regard to the provision of legal assistance at second instance. As explained by several commentators, the establishment of the Federal Agency raises concerns with regard to the right to an effective remedy because one of its key components – namely the access to free legal assistance – could be affected by the potential conflict between the appointed legal advisers’ and asylum seekers’ interests. Similarly, the significant influence granted to the Ministry of Interior over the functioning and the role of the BBU GmbH (e.g. appointing the CEO of the BBU GmbH or designing the work plan and guidelines of the BBU GmbH etc.) raises serious concerns over lack of independence, subsequently raising a risk of violation of the right to an effective remedy. Moreover, there are no provisions in the law which allow or indicate the contribution of non-governmental actors, external service providers or welfare organisations which could supplement, monitor or intervene in the role and the powers of the Agency. The Austrian Government has therefore created what has been described by both UNHCR and Diakonie Austria as a “black box”, which is steered mainly by the Ministry of Interior. All external actors are prevented from intervening to potentially correct mistakes or erroneous decisions, subsequently creating an Agency that is fully self-sufficient and non-transparent.
Even though some improvements were achieved in comparison to the previous dysfunctional legal aid system (e.g. trainings of legal advisors, legal aid in front of the High Courts, setting up quality standards), the centralised legal aid system under the BBU GmbH is very fragile from a fundamental rights perspective. The Ministry of Interior still has the right to nominate half of the members of the supervisory board, even if it only appointed two external experts in 2020. An expert board was founded to establish counselling standards.
Moreover, the centralisation of legal aid and founding of the BBU GmbH significantly restricts the potential role for and funding of civil society organisations. At the beginning of 2021, only 10% of the staff of Diakonie Flüchtlingsdienst were still employed as a result of the contract cancellation in 2020. The lack of funding will thus inevitably affect the activities of the relevant NGOs and raises serious concerns as regards the quality of legal assistance that will be provided to asylum seekers as of 2021.
In 2019, a well-known lawyer specialised in the field of asylum and aliens’ police law, Ronald Frühwirth, decided to stop working as a lawyer due to grave deficits and inconsistencies in the judicial system. This caused public uproar as he argued publicly that the jurisdiction of the High Administrative Court is inconsistent and hinders him from offering adequate counselling and representation of his clients in Court. “The jurisdiction does not follow the rule of law anymore but can only understood as “doing politics”, he stated. Frühwirth’s resignation resulted in a significant gap as he was recognised as one of the best experts in the field and represented many asylum seekers, especially in Styria.
The first year of operation of the BBU GmbH has been turbulent. The start of the legal counselling department in January 2021 was just one month after the take over of the whole area of federal basic care. Two out of the three heads of the departments (i.e. the return department and basic care) have been replaced. The independent head of the counselling department remained and focused on providing to the legal counsellors in the first year. The director’s contract was renewed in May 2021. Surprisingly he announced his resignation in October 2021, but then withdrew his resignation in December 2021. The official reasons for this turmoil has not been made public but there seems to be a connection timewise regarding issues in the distribution system of asylum seekers from federal to province basic care, and a lack of capacity in the federal facilities in fall 2021.
There is no evaluation yet on how many appeals have been lodged with the support of the BBU GmbH but the data of the BVwG show that over 60% of the first instance decisions were overturned or amended in 2021. This is one of the reasons why the BBU GmbH has not experienced a backlash compared to its predecessors which used to be responsible for state-provided legal assistance.
In practice, there is a constant exchange on general topics between the BBU GmbH with NGOs working in the field. However, this positive development does not change the criticism relating to the structure of the legal counselling implemented by the state led BBU Gmbh. Even the so-called ‘Qualitätsbeirat’, a group responsible for evaluating, observing and providing recommendations to the legal counselling department, stated in its report 2021 that the current positive development is strongly related to the personalities of the director of the institution and the head of legal counselling, who values and forsters independence in the provision of legal counselling. Nevertheless, the Qualitätsbeirat recommends to take further legislative measures to strengthen the independence of the legal counselling department.
 Article 73 (1) AVG.
 Ministry of Interior, Answer to parliamentary request 9531/AB XXVII. GP, 11 April 2022.
 Information provided by the Ministry of Interior, 26 January 2018. See also Der Standard, ‘Asyl: Freiwillige Rückkehr ging um ein Drittel zurück’, 11 July 2017, available in German at: http://bit.ly/2D3nDiK.
 Orf.at, ‚„Trendumkehr“ Kickl präsentiert Bilanz zu Asylzahlen‘, 24 January 2019, available in German at: https://bit.ly/2NVl4pY.
 Ministry of Interior, Answer to parliamentary request 4887/AB, XXVII. GP, 12 March 2021, availabe in German at: https://bit.ly/3s0YBLx
 Ministry of Interior, Answer to parliamentary request 9531/AB XXVII. GP, 11 April 2022
 Ministry of Interior, Reply to parliamentary question 11560/J (XXV.GP), 31 March 2017, available in German at: http://bit.ly/2o1os5Z. According to the Ministry, the average processing times for asylum applications made after 1 July 2016 was 6.6 months: Information provided by the Ministry of Interior, 26 January 2018.
 Art 22(6) AsylG.
 However, the official conducting the interview is no longer responsible for the decision.
 Article 20 (1) AsylG foresees that an asylum seeker whose fear of persecution is founded on violations of sexual self-determination is to be questioned by an officer of the same sex unless the asylum seekers requests the opposite. In general, requests can be made but there is no legal right to get an interviewer and interpreter of a specific gender. The requests in other cases than Article 20 (1) are usually not respected by the BFA.
 Article 19 AsylG.
 VfGH, Decision U 98/12, 27 June 2012.
 Article 20 AsylG.
 Article 20 Austrian Asylum Act.
 VfGH, Decision U 1674/12, 12 March 2013 mentions Conclusions Nr. 64 (XLI) and Nr. 73 (XLIV) of the Executive Committee of UNHCR. The Asylum Court decided by a male and female judge and its decision was thus unlawful.
 UNHCR,’Training manual for translators in asylum procedures”, 2015, available in German at: https://bit.ly/2XYPzQC.
 Information provided by the RD Burgenland.
 Article 16(1) BFA-VG.
 Article 16 (1) BFA-VG.
 Article 14(1) Administrative Court Procedures Act (VwG-VG).
 Article 18(2) BFA-VG.
 Articles 17(1) and 18(5) BFA-VG.
 Article 17(2) BFA-VG.
 Article 21(7) BFA-VG.
 Article 41(7) AsylG corresponds with Article 21(7) BFA-VG.
 VfGH, Decision U 610/2013, 19 September 2014, available at: http://bit.ly/1RIQrPN; U 2529/2013, 22 September 2014, available at: http://bit.ly/1G4KDfF. See also K Kessler, ‘The right to an oral hearing in Austrian asylum appeal procedures in the light of Article 47(2) of the Charter of Fundamental Rights of the European Union’, EDAL, 14 January 2015, available at: http://bit.ly/1CGfjzK.
 VwGH, Ra 2014/20/0017, 28 May 2014.
 VwGH Ro 2014/21/0047, 22 May 2014.
 Decisions of the Federal Administrative Court are available at: http://www.ris.bka.gv.at/Bvwg/. However, according to the General Administrative Procedures Act, decisions may not be made public if it is necessary for reasons of public order or national security, morality, the protection of children or the private life of the asylum seeker or for the protection of a witness.
 Ministry of Interior, AMIF List of selected projects 2015/2016 (Asylum & Return), available in German at: http://bit.ly/1OqSfsR; Reply to parliamentary request 14100/J (XXV.GP), 8 November 2017, available in German at: http://bit.ly/2EiMLDx.
 BGBl I Nr. 38/2011.
 Article 52(2) BFA-VG.
 VwGH, Decision Ro 2016/18/0001, 3 May 2016.
 ECRE, Reforming legal assistance in Austria : an end to independent provision ?, June 2019, 5, available at: https://bit.ly/2NHkaB0 ; UNCHR, Analysis of the law establishing a Federal Agency for Supervision and Support Services, April 2019, 1, available in German at: https://bit.ly/2W8c1Fx; Diakonie Austria, Position statement on the Federal law amending the BFA Procedures Act (BFA-VG), the Asylum Act and the Basic care act, April 2019, 3, available in German at: https://bit.ly/2W4cAAb.
 UNCHR, Analysis of the law establishing a Federal Agency for Supervision and Support Services, April 2019, 1, available in German at: https://bit.ly/2W8c1Fx; Diakonie Austria, Position statement on the Federal law amending the BFA Procedures Act (BFA-VG), the Asylum Act and the Basic care act, April 2019, 3, available in German at: https://bit.ly/2W4cAAb.
 Qualitätsbeirat BBU GmbH, Jahresbericht 2021, available in German at: https://bit.ly/38FyDbr