Author
Article 19 BFA-VG provides for a list of safe countries of origin. The Governmental order listing safe countries of origin must take into account primarily the existence or absence of state persecution, protection from persecution by non-state actors and legal protection against human rights violations. The COI department of the BFA has to take various state and non-state sources into account, e.g. reports from human rights bodies, media articles, governmental reports etc. The COI department’s methodology in this regard is accessible online.[1]
In asylum cases relating to applicants originating from a safe country of origin, the BFA can withdraw suspensive effect of the appeal in case of a negative decision.[2] The Federal Government may issue a decree ordering that the suspensive effect of an appeal against a negative decision must not be withdrawn, which is binding both for the BFA and the Courts.[3] The examination of the list of safe countries of origin by the Ministry of Interior is also based on previous COI reports produced by the (former) Federal Asylum Agency.
This list of article 19 BFA-VG includes all EU Member States,[4] although there is a mechanism that allows to take Member States off the list in case Article 7 of the Treaty on European Union (TEU) is applicable; i.e. Article 7 TEU provides for suspension of certain rights deriving from the application of the Treaties in case of serious breach of the values on which the EU is based, as laid down in Article 2 TEU. As a consequence, suspensive effect must be granted for appeals in asylum procedures of nationals of these EU Member States. Other safe countries of origin mentioned in the Asylum Act are: Switzerland, Liechtenstein, Norway, Iceland, Australia and Canada. In 2023, 24 (2022: 26) EU-nationals originating from 10 Member States applied for asylum in Austria.[5]
Further states are defined as safe countries of origin by Governmental order (Herkunftsstaaten-Verordnung, HStV). As of December 2023, the list was last amended in March 2022, and included the following states:[6]
- Albania;
- Bosnia-Herzegovina;
- The Republic of North Macedonia;
- Serbia;
- Montenegro;
- Kosovo;
- Benin;
- Mongolia;
- Morocco;
- Algeria;
- Tunisia;
- Georgia;
- Armenia;
- Ghana;
- Senegal;
- Namibia;
- South Korea;
- Uruguay
The 2019 amendment took Sri Lanka, which had been added in June 2018,[7] off the list.[8] In March 2022, Ukraine was taken off the list.[9]
The Accelerated Procedure is applied in cases where the safe country of origin concept is applicable, and the Federal Administrative Court (BVwG) has to decide within 7 calendar days on the suspensive effect of appeals against negative decisions. In such procedures, asylum seekers have access to free legal assistance where applications are rejected. Legal advisers have to organise interpreters. As of 2021, the Federal Agency (BBU-GmbH) will be in charge of providing legal assistance in these cases, as already mentioned above. The procedure may be accelerated, but there are no exceptional time limits for deciding such applications.
In 2023 8,533 (2022: 22,520; 2021: 3,495) applications were submitted by applicants originating from 16 different “safe countries of origins”, which represents 14% (compared to 21% in 2022) of the total numbers of applications for international protection. The largest numbers of applications were lodged by the following nationalities: Morocco (6,948), Tunisia (437) and Georgia (367).[10]
[1] BFA, Methodology of the COI Department, available in German at: https://bit.ly/2Sype9Q, 52.
[2] Art 18 AsylG.
[3] Art 19 (5) AsylG.
[4] Defined as states party to the EU Treaties: Article 2(1)(18) AsylG.
[5] Ministry of Interior, Annual statistics 2023, available in German at: https://shorturl.at/jrHS8.
[6] Verordnung der Bundesregierung, mit der Staaten als sichere Herkunftsstaaten festgelegt werden (Herkunftsstaaten-Verordnung – HStV), as amended on 14 February 2018, available at: http://bit.ly/2ji71tR.
[7] BGBl. II Nr. 130/2018, available in German at: https://bit.ly/2Gl2XJ2.
[8] Modification of the regulation on countries of origin, 5 June 2019, available in German at: https://bit.ly/2H5wZz4.
[9] Modification of the regulation on countries of origin, 30 March 2022, available in German at: https://bit.ly/3vxezQf.
[10] Ministry of Interior, Annual Statistics 2023, available in German at: https://shorturl.at/tuzT1.