Subsequent applications

Austria

Country Report: Subsequent applications Last updated: 30/11/20

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Asylkoordination Österreich Visit Website

The AsylG defines subsequent applications as further applications after a final decision was taken on a previous asylum application.[1] If a further application is submitted while an appeal is still pending, the new application is considered as an addition to the appeal. Different legal safeguards apply depending on the previous procedure (in-merit or Dublin procedure) and the time of submitting the application. Usually, a subsequent application is not admitted to the regular procedure and is rejected as inadmissible.[2]

The Federal Administrative Court (BVwG) can either refuse the appeal or decide to revert it back to the BFA with the binding instruction to examine the subsequent asylum application either in a regular procedure or by conducting more detailed investigations.

An interview has to take place within the admissibility procedure, except in the case where the previous asylum application was rejected due to the responsibility of another Member State. Such interviews are shorter than in the first application and focus on changed circumstances or new grounds for the application. The law does not define new elements, but there are several judgments of the Administrative High Court that are used as guidance for assessing new elements.[3]

Reduced legal safeguards apply in case an inadmissibility decision was taken within the previous 18 months (i.e. if the rejection is connected to an expulsion order and a re-entry ban of 18 months). In this case, there is generally no suspensive effect for the appeal nor for the application itself. In many cases the asylum applicant does not even undergo a personal interview except for the preliminary interrogation conducted by the police.[4]

Suspensive effect may be granted for an application following a rejection of the application on the merits or a safe third country decision, if the execution of the expulsion order of the previous asylum procedure could violate the non-refoulement principle. If suspensive effect is not granted, the file has to be forwarded to the BVwG for review and the Court has to decide within 8 weeks on the lawfulness of the decision.[5] The expulsion may be effective 3 days after the Court has received the file.

It might sometimes be necessary for the person concerned to lodge a subsequent asylum application, due to the inactivity of the authorities or the lack of another possibility to get a legal residence. Family and civil status may have changed since the final decision on the first asylum application (e.g. marriage or birth of a child) and – due to the expulsion order issued as a result of that negative decision – it is not possible for the person concerned to apply for a residence permit as family member of a legally residing person or of a person with protection status in Austria. A subsequent application for international protection would then include the question of a possible violation of Art. 8 ECHR.

Moreover, in Dublin cases, if the asylum seeker has not been transferred to the responsible Member State after the rejection of his or her first application, he or she will have to submit a new asylum application in Austria, which will be considered as a subsequent asylum application. Where it becomes clear that the situation has changed or the requested Member State does not accept the request for transfer, a regular procedure is initiated to assess the case on the merits.

Asylum seekers sent back to Austria by other Member States two years after their file has been closed due to their absence have to submit a subsequent application as well. The same applies to cases in which the decision has become final while the asylum seeker was staying in another Member State.

There is no limit on the number of subsequent applications that can be submitted. Different rules apply to subsequent applications with regard to suspensive effect of the application, which depends on whether the expulsion order will be executed within the following 18 days or whether the date is not yet fixed.  In cases of rejection of subsequent asylum application, the same rules regarding free legal assistance during the regular procedure apply: the BFA assigns the responsibility to one of the organisations (either VMÖ or ARGE) to appeal the negative decision.

Asylum seekers who submit a subsequent application within 6 months after the previous application has been rejected are not entitled to Basic Care provisions; nevertheless they may receive Basic Care during the admissibility procedure of the subsequent application (see section on Reception Conditions: Criteria and Restrictions to Access Reception Conditions).[6] If Basic Care is not granted, detention or a less coercive measure such as a designated place of living and reporting duties is ordered.[7]

 

Subsequent applicants in 2019

Country

Number

 Afghanistan

338

 Russian Federation

169

 Nigeria

167

 Somalia

138

 Iraq

117

 India

76

Other

714

Total

1,719

 

Source: Ministry of Interior, Annual Statistics 2019, available in German at: https://bit.ly/2THx7vK

 


[1] Article 2(1)(23) AsylG.

[2]  Article 68 AVG.

[3] See AsylGH 09.04.2013, C6 408.412-2/2013; VwGH v. 20.03.2003, Zl. 99/20/0480, AsylGH 10.04.2013, B10 305.993-2/2013.

[4]           Article 12a(1) AsylG.

[5]           Article 22(1) BFA-VG.

[6]           Article 3(1)(3) Basic Care Act (GVG-B).

[7]           Articles 76(3)(4) and 77 FPG.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation