Author
When a person is placed in detention, they must receive a written decision relating to their individual situation and circumstances and the grounds for detention.[1] The main parts of such a decision, which are the decision of detention and the information on the right to appeal, have to be in a language the asylum applicant is able to understand. In each case, the detained asylum applicant is appointed a legal adviser provided by the state.
An appeal against detention in the context of the border procedure is not possible as asylum seekers are de facto detained and therefore do not obtain a detention order that can be appealed.
Detention is ordered by the BFA. The BFA has to review the lawfulness of detention every 4 weeks.[2] After 4 months, the Federal Administrative Court (BVwG) must review the lawfulness of detention ex officio.[3]
There is further a possibility to submit an appeal to the BVwG against a detention order, which is not subject to any time limits. The BVwG has to decide on the lawfulness of the detention order on the basis of the appeal of the asylum seeker and must determine whether reasons for continuation of detention existed at the time of the decision.[4]
The Court must decide within 7 calendar days in cases where a person is still detained, and within 6 months in cases where the person is no longer detained (which is the general time limit for decisions in administrative procedures).[5]
If the detention or its duration are recognised as unlawful, the asylum applicant is entitled to a financial compensation of € 100 for each unlawful day in detention.[6] In case the appeal is rejected, there is a possibility to submit an appeal to the VwGH and to the VfGH. However, if the Federal Administrative Court (BVwG) rules on an appeal and finds that the detention order was lawful and that, at the time of the decision of the court, there is still the need to continue detention, the detained person lacks any possibility to contest this decision as unlawful.[7] In 2022, the Republic of Austria acknowledged 79 (2021: 75) compensation claims and paid a total compensation of € 185,819 (2021: € 132,287) for unlawful detention.[8] As of September 2023, in 50 cases compensations claims amounting to a total compensation of € 121,219 were accepted.[9]
Since the implementation of the Return Directive, legal safeguards for persons in detention have improved. The state led agency BBU GmbH has taken over counselling in detention centres since 31 December 2020. The contracts between the Ministry of Interior and NGOs have not been prolonged, leading to a blackbox-situation with no civil society oversight in detention centres. There has been an exchange between NGOs offering free legal counselling and BBU GmbH in 2021 on general matters. There are no reports that the counselling service by BBU GmbH has deteriorated yet. In 2022, several NGOs reported that there is an obvious need for social counselling in the deportation centres as the BBU GmbH has a very limited scope of counselling by law.
[1] Article 76(3) FPG.
[2] Article 80 (6) FPG.
[3] Article 22a (4) BFA-VG.
[4] Article 22a (1) BFA-VG.
[5] Article 22a(3) BFA-VG.
[6] There is no legal provision that regulates the amount of compensation; in the past, there were some civil court cases in which an amount of € 100,00 were found to be justified (e.g. 25.03.2003 – LG f ZRS Wien 32 Cg 13/01v).
[7] VfGH, Decision E4/2014-11, 26 June 2014.
[8] Ministry of Interior, answer to parliamentary request 13976/AB XXVII. GP, 28 April 2023, available in German at https://bit.ly/425y8xW.
[9] Ministry of Interior, Answer to parliamentary request 15846/AB, XXVII. GP, 21 November 2024, available in German at: https://shorturl.at/Ng89b.