Author
Detention should be as short as possible,[1] and cannot exceed 6 months for adults,[2] and 3 months for children over the age of 14.[3] Prior to November 2017, these maximum time limits were 4 months and 2 months respectively. There is also a possibility to exceptionally extend these periods for up to 18 months, e.g. when the identity or citizenship cannot be verified or when the foreigner resisted against police force in the context of deportation.[4] As regards asylum seekers, detention should generally not last longer than 4 weeks following the final decision on the application.[5
Figures on the average duration of detention of asylum seekers in general are not available. In 2019, however, the average time of a person kept in detention centre was 28.9 days.[6] This average time increased significantly in 2020, when asylum seekers who were detained on the ground of Article 76 (2) (1) FPG (i.e. the person has violated a travel ban) were detained for 83.3 days.[7] In 2021, the average time overall was 35.4 days, while specific data on the average detention time of asylum seekers is not available.[8] During the first lockdown, a number of detainees were released as they could not be deported as a result of travel restrictions. However, in certain cases such as persons who have committed a criminal offenses, detention continued to be applied despite the fact that deportation could not be carried out. In many cases, the maximum detention time limit of 18 months was applied on the basis that a deportation within the maximum time limit might still be possible. By way of illustration, in periodic court reviews foreseen by law, the BFA repeatedly argued from May 2020 onwards that deportations to Afghanistan would be feasible “in the following month”; while in reality not a single deportation to Afghanistan took place until December 2020. The last deportation flight to Afghanistan took place in June 2021. Following a BVwG judgement from August 2021, the BFA itself noted that there is no realistic forecast for next possible deportations flights.[9]
As regards, asylum seekers falling under the Dublin procedure, they are often detained immediately after lodging their application and may be kept in detention until they are transferred to the responsible Member State. In Dublin cases, detention may last for some weeks, as suspensive effect of the appeal is hardly ever granted and the transfer can be affected while their appeal is still pending. At the de facto detention facility at the airport Vienna Schwechat, 97 persons were accommodated in 2020. As regards the average length of de facto detention at the airport, there is no available information and the procedure continues to lack transparency.
[1] Article 80(1) FPG.
[2] Article 80(2)(2) FPG.
[3] Article 80(2)(1) FPG.
[4] Article 80(4) FPG.
[5] Article 80(5) FPG.
[6] Ministry of Interior, Answer to a parliamentary request 4023/AB XXVI GP, 16 August 2019, available in German at: https://bit.ly/39jKNlW.
[7] Ministry of Interior, Answer to a parliamentary request, 4901/AB XXVII. GP, 12 March 2021, available in German at: https://bit.ly/2P4ioeu
[8] Ministry of Interior, Answer to a parliamentary request, 9405/AB, XXVII. GP, 28 March 2021, available in German at: https://bit.ly/3KbaS9k.
[9] BVwG, GZ W282 2242837, 19 August 2021, available in German at: https://bit.ly/3jq4IX0.