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. 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.
Detention is ordered by the BFA. The BFA has to review the lawfulness of detention every 4 weeks. After 4 months, the Federal Administrative Court (BVwG) must review the lawfulness of detention ex officio.
There is 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. 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.
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).
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. 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.
Since the implementation of the Return Directive, legal safeguards for persons in detention have improved. Nevertheless, judicial review ex officio after 4 months does not seem to be systematic in practice. NGOs also consider that one of the organisations contracted by the Ministry of Interior for providing free legal assistance, VMÖ, is not qualified for challenging the legality of detention regularly. The organisation has contracts with the Ministry of Interior for advice on voluntary return and for Dublin returns as well, which seems to be in conflict with the task of legal advisers. Information provided in the federal digital information service (RIS) show that in 2019, around 200 appeals were lodged by ARGE Rechtsberatung compared to only 34 appeals lodged by VMÖ. This being said, a few lawyers have successfully challenged detention orders. More recent statistics are not available.
 Article 76(3) FPG.
 Article 22a(3) BFA-VG.
 VfGH, Decision E4/2014-11, 26 June 2014.