The last version of this report was previously updated in April 2021.
- Access to the territory: Pushback allegations and summary returns at the southern border of Austria with Slovenia have increased in 2021. Several cases have been brought to Court leading to a landmark decision in July 2021 in which the Regional Administrative Court of Styria came to the conclusion that “‘summary returns („push-backs“) are partly applied as a method in Austria.” The decision also confirmed that asylum applications are “overheard”, i.e. applicants are not properly interviewed, and that certain police measures taken resulted in a degrading treatment of the applicants. However, the Federal Minister of the Interior firmly denied allegations of a ‘partial methodical use of illegal pushbacks’ at the Austrian southern border in November 2021. No misconduct on the part of police officers could be ascertained by an internal investigation, according to the Minister. The Regional Police Directorate of Styria appealed against the decision of the Regional Administrative Court of Styria. The appeal is currently pending.
- Key asylum statistics: After three years of record low numbers, Austria has seen an increase in applications for international applications by 160% in 2021 compared to 2020, reaching 38,638 at the end of the year. The low numbers in previous years were largely due to COVID-19, however. In 2021, almost 2/3 of all applications were lodged by Syrians (15,796 applicants) and Afghans (8,641 applicants). The total backlog of pending cases also increased from 20,739 in 2020 to 27,953 at the end of 2021. While the second instance Court managed to decrease the number of pending cases to 8,422 (compared to 14,886 in 2020), the number of pending cases at first instance significantly increased to 18,534 (compared to 5,853 in 2020). It should also be noted that the number of asylum seekers receiving basic care has remained at the same level as in previous years, thereby indicating that many asylum seekers move to other countries after lodging an application for international protection.
- First instance procedure: In 2021, there was a sharp increase in decisions taken in the fast track procedure (3,681 cases), focusing in particular on persons originating from countries listed as countries of safe origin. Moreover, almost 8,000 cases were discontinued, most probably because the applicants moved to other countries. This was particularly visible for Afghan nationals which left Austria after August 2021 inter alia due to the anti-Afghan-refugee rhetoric of the Minister of Interior even after the take over of the Taliban. Practice further suggests that subsequent applications lodged by Afghan nationals were not prioritised in 2021.
- Second instance procedure: The Federal Administrative Court (BVwG) managed to reduce the number of pending cases at second instance from 14,886 in 2020 to 8,351 at the end of 2021. A total of 17,100 cases could be concluded through the 26,650 single decisions taken. In 13,040 cases, the first instance decision was overturned or amended at second instance, while 10,300 first instance decisions were This means that 62% of the cases examined by the Court at second instance modified the first instance decision, demonstrating the poor quality of the work of the determining authority.
- Legal assistance: Since January 2021, the state-run agency BBU GmbH took over the legal assistance system from NGOs in asylum procedures. The structure of the state-run agency remains disputed as the risk of influence by the Minister of Interior on the operational level of the agency is high. Nevertheless, despite a difficult start, the agency seems to have consolidated its legal counselling service and there is a regular exchange taking place with NGOs working in the field. The first experiences show that the quality of legal assistance has not deteriorated. There are no reports indicating that the Ministry of Interior has exercised any influence on the work of the counselling department of the agency so far.
- Best interest of the child: The removal of under aged children with their respective mothers to Georgia and Armenia in January 2021 caused a medial uproar and protests. Some of the children were born in Austria and do not speak their mother’s language. Their application for a status on humanitarian grounds were rejected due to the fact that the parents had remained in the country despite having received return decisions and had lodged subsequent applications. One of the subsequent applications for a humanitarian status that was lodged in May 2020 has still not being processed by the authority thereby exceeding the deadline. After having been deported, the protests of the classmates of the children persisted and the Ministry of Justice decided to introduce a commission of experts to assess the respect of the best interest of the child in asylum and removal The commission presented a report in July 2021 with several recommendations such as the importance to carry out a mandatory hearing of under age children in asylum procedures or providing guardians to unaccompanied minors at an earlier stage of the procedure. Since then, one girl has returned without her family to Austria and has been granted a student’s visa. It should further be noted that, in 2021, 4,489 minors have gone missing after applying for asylum in Austria. This represents 78% of all applications of minors in 2021.
- Afghan applicants: Afghan applicants remained the second main nationality of asylum seekers after Syrian nationals in 2021. In July 2021, a sexually assaulted girl was found dead in Vienna (“Causa Leonie”). Four Afghan nationals were identified as suspects, sparking a public debate on the high crime rate among Afghan asylum seekers in Austria and on the efficiency of the Austrian asylum system. The debate along with the decreasing recognition rates stopped shortly after the take over of the Taliban in August 2021. Due to the “Causa Leonie” case, the Ministry of Interior refused to suspend removals to Afghanistan up until 4 August 2021, when the Taliban had already reached major cities in Afghanistan. The last deportation planned on 4 August 2021 was stopped by an interim measure granted by the In September 2021, a decision by the Constitutional Court was issued stating that deportations that had taken place since 20 July 2021 violated Article 3 ECHR. As a result of the takeover of Afghanistan by the Taliban, recognition rates as well as the number of subsequent applications reached a record at the end of the year. Between October and December 2021, only 18 cases of Afghan nationals were rejected on the merits at first instance, but the BVwG overturned all these negative decisions. In a few cases seen as a test ballon, the Constitutional Court overturned the negative Court decisions in December 2021 stating that a deportation to Afghanistan would lead to a violation of Article 3 of the European Convention on Human Rights (ECHR).
- Response to the situation in Ukraine as of 14 April 2022: Following the decision of the EU to trigger the Temporary Protection Directive (TPD), the Austrian government decided to issue a regulation based on §62 AsylG. It implements the decision of the Justice and Home Affairs (JHA) Council into national law and defines the scope of the temporary protection as well as its duration. Additionally to the council decision, Ukrainian nationals who were reisiding legally in Austria before 24 February 2022 have the right to receive protection under the TPD. Ukrainians will receive basic care and have access to the labour market. Working permits have to be issued but will be granted without further examination. There is still no agreement as to whether Ukrainians will have access to other state subsidies such as family or childcare allowances and, if so, under which conditions. A major point of debate is whether Ukrainians will be allowed to earn € 110,00 in addition to basic care as is currently the case for other asylum seekers, or if this limit will be extended. Ukrainians generally have access to the asylum system and can apply for asylum. However, their application will not be examined as long as the regulation based on § 62 AsylG is in force.
The public response to the situation in Ukraine has been welcoming. The government emphasises that Ukrainians are different from other refugees which causes unrest in the refugee community. Third country nationals that resided in Ukraine before 24 February 2022 are allowed to enter Austrian territory legally and can plan their onward travel or regularisation where the conditions of Settlement and Residency Act have to be met. Reports show however, that the authorities are confiscating documents from third country nationals as they do not fall under the scope of the TPD and regularisation under the ordinary migration scheme is almost impossible in practice due to the high conditions to be met when applying for it. As of April 2022, 56,000 Ukrainians have been registered in Austria. The Ministry of Interior estimates that up to 200,000 Ukrainians will come to Austria in 2022.
- Malfunctioning distribution system: Since December 2020, the BBU GmbH is responsible for providing food and shelter for asylum seekers during the admissibility After the admissibility procedure is concluded, the law foresees that the responsibility shifts to the provences. However, due to the non-adjustement of reimbursement of costs for accommodation of asylum seekers by the federal state to the provinces, in 2021 the provinces did not take responsibility for applicants for international protection. As a result, reception centres were overcrowded and the BBU GmbH was forced to open all remaining facilities available. Due to the increase of applications and necessary COVID-19 measures, inadequate facilities such as garages and ware houses were also used to accommodate applicants. This created an image of a high influx of applicants in the public eye, even though the numbers of beneficiaries of basic care remained stable over the last 2 years as many applicants moved onward to other countries.
Detention of asylum seekers
- Interim measure of ECHR concerning returns to Afghanistan: The Vienna based NGO “Deserteurs- und Flüchtlingsberatung” supported an Afghan national whose removal was planned at the beginning of August 2021 and who had applied for an interim measure. The interim measure was granted by the ECHR which caused a medial uproar and put an end to all deportation efforts in Europe as this occurred at the time when the Taliban took over the power in Kabul in mid-August.
- Upholding unlawful detention : Despite the interim measure granted by the ECHR and a halt on removals, the Ministery of Interior did not immediately release all Afghan citizens and, on the contrary, publicly announced that it will continue to return Afghan citizens. The Afghan Ambassador in Vienna, who had asked the Austrian government for a moratorium on returns following the takeover of Kabul by the Taliban, was ordered to come to the Ministry of Foreign Affairs to clarify diplomatic discrepancies. Afghan nationals detained in removal centres were only released following rulings from the Constitutional Court which concluded on 17 August 2021 that deportations within the maximum time limits for deportations are not possible. In another ruling from 30 September 2021, the VfGH concluded that all removals carried out after 20 July 2021 would pose a risk of violation of Article 3 ECtHR for the returnees and return decisions are not permissible.
Content of international protection
- Access to labour market: Since 2004, an internal decree of the Ministry of labor called “Bartenstein-Erlass” resulted in a practice whereby the authority would deny working permits to asylum seekers. The decree obliged the Ministry’s members in the ‘Regionalbeirat’, a committee that decides on whether working permits should be granted to certain group of foreigners, to vote against the granting of working permits for asylum seekers in any case except for harvest and tourism jobs. In a groundbreaking decision, the Constitutional Court ruled in July 2021 that the internal decree was unlawful as it should have been issued as a regulation and published accordingly. Following this decision, the Ministry decided that it would not introduce the same rule as a regulation, but stated that it will only grant working permits to asylum seekers if no other European citizen would be able to take the job. Overall, the ruling has facilitated the access to employment for asylum seekers.
- Cessation/withdrawal procedures: Austria continues to initiate a large number of cessation and withdrawal procedures against beneficiaries of international protection. In 2021, a total of 5,924 cessation/withdrawal procedures were initiated. However, only a total of 1,304 asylum statuses were eventually ceased/withdrawn by the determining authority mainly for nationals from Russia (1,015) Syria (53) and Kosovo (44); and a total of 342 subsidiary protection were ceased/withdrawn, mainly for nationals from Afghanistan (101), Iraq (69) and Russia (55). A detailed statistical breakdown on nationality and on the grounds for cessation/withdrawal is provided under the relevant section.