Criteria and restrictions to access reception conditions

Austria

Country Report: Criteria and restrictions to access reception conditions Last updated: 30/11/20

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Asylum seekers and other persons who cannot be expelled are not entitled to the same social benefits as citizens. In 2004, the Basic Care Agreement between the State and the federal provinces entered into force and has been implemented at national and provincial level. The agreement sets out the duties of the Federal State and the states and describes material reception conditions such as accommodation, food, health care, pocket money, clothes and school material, leisure activities, social and return assistance, by prescribing the amount for each. The law passed in June 2019 foresees that the new Federal Agency (BBU) will be responsible for providing reception conditions (basic care) as of July 2020. No further details on the implementation of the law are publicly available. According to government sources, the planned start for the activities of the Federal Agency concerning basic care will be postponed to December 2020, however.

Asylum seekers are entitled to Basic Care immediately after lodging the asylum application until the final decision on their asylum application in all types of procedures. However, the provision of Basic Care may violate Article 17(1) of the recast Reception Conditions Directive. In Austria, Basic Care is provided as soon as the person requesting international protection is considered as an asylum seeker. An asylum seeker is an alien whose request is formally lodged, which is the case after the BFA gives an instruction about the next steps to the public security officer. However, asylum seekers do not make their application in the initial reception centres but at a police station, which means that as long as the application is not regarded as lodged, the person is not an asylum seeker in the sense of Article 2(14) AsylG.

Different entitlements are foreseen in the Basic Care Agreement and the Basic Care Act (GVG-B). While the Agreement declares in Article 2(1) as target group asylum seekers who have requested asylum, the Basic Care Act of the Federal State defines the responsibility of the Federal State for asylum seekers after having lodged the application during the admissibility procedure in a reception facility of the Federal State.[1] However, Basic Care conditions do not apply in detention or where alternatives to detention are applied.[2] While an alternative to detention is being applied, the asylum seeker is entitled to reception conditions that are more or less similar to Basic Care (accommodation, meals and emergency health care).

Asylum seekers subject to Dublin procedures are entitled to basic care provisions until their transfer to the Member State responsible for the examination of the asylum application is executed. This general rule is not applicable if the asylum seeker is detained or ordered less coercive measures, however. In both cases they are not covered by health insurance but have access to necessary urgent medical treatment. In contrast to asylum seekers subject to the Dublin procedure but accommodated in one of the reception facilities in Austria, those undergoing Dublin procedures whilst in detention or less coercive measures do not receive monthly pocket money (€40). This distinction in the reception conditions available to applicants detained or subject to alternatives to detention does not respect the recast Reception Conditions Directive, which should remain applicable in all Dublin procedures.[3]

If the suspensive effect of an appeal has been denied, Basic Care is terminated after the first instance decision becomes enforceable. Asylum seekers receive Basic Care in the case the court has awarded suspensive effect or if they wish to leave Austria voluntarily until their departure.[4]

Special documents for the entitlement to Basic Care are not foreseen. All asylum seekers and other persons who cannot be deported are registered in a special database, the Grundversorgungssystem. National and local authorities, as well as contracted NGOs, have access to the files. Asylum seekers returned to Austria from other Member States may face obstacles in getting full Basic Care upon arrival.

After a final negative decision on the asylum application, the law provides for Basic Care until departure from Austria, if the rejected applicant cannot leave e.g. due to inability to obtain a travel document. Usually, rejected asylum seekers remain in the same reception facility. While in Vienna, Basic Care after a negative decision is usually prolonged, other federal provinces cease support. Depending on available places, rejected asylum seekers may stay in the reception centre on the basis of a private agreement with the landlord or NGO.

The assessment of resources

A precondition for Basic Care is the need for support. This is defined by law as applicable where a person is unable to cover subsistence by their own resources or with support from third parties.[5] Asylum seekers arriving in Austria with a visa are thus not entitled to Basic Care due to the precondition of having “sufficient means of subsistence” for the purpose of obtaining a Schengen visa.[6] This exclusion clause is applied very strictly, even when the sponsor is unable to care for the asylum seeker. Exceptions may be made if the asylum seeker has no health insurance and gets seriously ill and needs medical treatment.

Although the amount of material reception conditions is specified in the Basic Care Agreement,[7] the level of income or values relevant to assessing the lack of need for Basic Care is not specified by law. Legislation does not lay down the amount of means of subsistence below which a person is entitled to Basic Care, even though the amounts for subsistence and accommodation are prescribed by law. In practice, an income beyond 1.5 times the amount of Basic Care benefits (€547) are deemed to be without need of Basic Care. In Salzburg, the regulation for Basic Care in force since 1 July 2016 sets out that income up to 110€ is not taken into account; for any family member in a household, a further €80 of income should not lead to a reduction of basic care support; for an apprentice the respective amount is €150.[8] This practise is applied in other federal provinces as well.

Asylum seekers have to declare whether they hold resources or any source of income during the first interrogation with the police upon registration of the application. Since September 2018, asylum seekers are obliged to contribute to the basic care of the federal state they reside in. As a result, up to €840 per person can be withheld by the police when a person asks for asylum and is found to carry such an amount of money. However, out of these €840, asylum seekers always keep €120.[9] Upon termination of the provision of basic care, any difference between the actual costs incurred and the cash seized is reimbursed. In the first half of 2019, around €74,000 was seized from 795 applicants.[10]

Furthermore, EU and EEA (European Economic Area) citizens are excluded from the basic care.

By the end of 2019, 30,878 persons received basic care. Figures refer to 18,313 asylum applicants, out of which 2,254 awaited a first-instance decision (1,891 on the merits; 363 in the Dublin procedure) and 16,059 waited for the outcome of the appeal procedure. 12,565 other foreigners also received basic care, out of which 1,646 were asylum status holders and 7,668 subsidiary status holders, while 1,846 other persons had no legal status as their appeal were rejected (no legal status).[11]

 

Beneficiaries of basic care as of 31 December 2019

Asylum applicants

18,313

First instance on merits

1,891

First instance Dublin procedure

363

Case pending second instance (BVwG)

16,059

Beneficiaries of protection and others

12,565

Refugees

1,646

Beneficiaries of subsidiary protection

7,668

Cases pending before High Courts (VwGH, VfGH)

354

Rejected asylum applicants

1,876

Other

1,021

Total

30,878

Source: Basic care, 31 December 2019.

 

The number of beneficiaries of basic care in 2019 has thus decreased by 28.4%, as 43,140 persons had received basic care in 2018.

 



[1] Articles 1(1) and 2(1) GVG-B.

[2] Article 2(2) Basic Care Agreement; Article 2(3) GVG-B. Note that this not in conformity with Article 3 recast Reception Conditions Directive.

[3] Recital 11 Dublin III Regulation. See also CJEU, Case C-179/11 Cimade & GISTI v Ministre de l’Intérieur, 27 September 2012, para 46.

[4] Artice 2(7) GVG-B.

[5] Article 2(1) Basic Care Agreement (GVV)-Art 15a.

[6] Article 5(1)(c) Schengen Borders Code.

[7] Articles 6, 7 and 9 Grundversorgungsvereinbarung (GVV); Art. 15a B-VG.

[8] Salzburg Basic Care Regulation LBGl. 57/2016, available in German at: http://bit.ly/2kGpqma.

[9]  Article 2 Abs 1 basic care law.

[10]  Ministry of Interior, Answer to a parliamentary request 4022AB/XXVI. GP, 16 September 2019, available in German at: https://bit.ly/2QjacVe.

[11]   Information “Grundversorgung”, 31 December 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation