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Grounds for reduction or withdrawal
Material reception conditions are reduced if the asylum seeker has an income, items of value or receives support from a third party.[1] For the first phase of the asylum procedure (the admission stage), this rule is not applicable. If an asylum seeker earns money or receives support from other sources, they are allowed to keep € 110 (and € 80,- for each family member); or € 240 in Tyrol, there is no common practice across all federal provinces. All additional income will be requested as a financial contribution for the asylum seeker’s Basic Care. This is requested without a formal procedure. Reduction of reception conditions can also result in not granting the monthly pocket money for subsistence or the support for the child if the child is entitled to child benefits, which mainly applies to those who have received refugee status or subsidiary protection if the mother/father is working.
Material reception conditions may be withdrawn where the asylum seeker:[2]
- Repeatedly violates the house rules and/or their behaviour endangers the security of other inhabitants;
- Leaves the designated place for more than 3 days, as it is assumed that they are no longer in need of Basic Care;
- Has submitted a subsequent application;
- Has been convicted by court for a crime on a ground which may exclude them from refugee status according to Article 1F of the Refugee Convention. This ground for withdrawal is not in line with Article 20 of the recast Reception Conditions Directive but does not seem to be applied or relevant in practice.
- Has had their application rejected or dismissed and suspensive effect was excluded according to Article 18(1) BFA-VG. If the applicant cooperates to return voluntarily, they are eligible to material reception conditions until their departure. This rule makes a reference to Article 20(5) of the recast Reception Conditions Directive according to which a dignified living standard and access to medical treatment have to be provided.
In some federal provinces, the laws also permit the exclusion of asylum seekers who fail to cooperate with establishing their identity and need of basic care, although this is not applied in practice.[3]
In all federal provinces, individuals in basic care facilities or those who apply for private living, go through a move-in process. This includes counselling and clearing concerning information about house rules, data protection form, presence of staff, dates for disbursements or expenses such as hygiene items, etc., but also information about rights and duties in basic care as well as contents and services of basic care. Information about services of basic care always refer to basic care law of the respective federal state and 15a agreement, where these services are defined.
The information about rights and duties is the so called ‘Declaration of need for assistance’ (Hilfsbedürftigkeitserklärung). In Vienna all people receiving (as well as private housing) basic care have to sign this declaration. The table below provides an illustration of the content of this declaration which is used in Vienna by Caritas Asylzentrum counselling center and NGOs who run facilities for basic care. [4] The form is not publicly available, but its content was shared by a relevant stakeholder:[5]
| Declaration of need for assistance’
In need of help are people who: In need of assistance is anyone who cannot or cannot sufficiently provide for the livelihood of themselves and their dependent relatives living in the same household from their own efforts and resources, or who does not (sufficiently) receive their livelihood from other persons or institutions[6]. Obligations: I undertake to keep my advisor or guardian informed of the following on an ongoing basis: – any change concerning residence status, marital status, residential address, stay abroad – any assets such as cash, motor vehicle (car/moped), real estate, valuables, etc. – any income – from self-employment (e.g. trade) – from dependent gainful employment – any receipt of minimum income support or social assistance, unemployment benefit/emergency assistance (AMS receipt), sickness benefit, maternity allowance, family allowance (current receipt and subsequent payments), childcare allowance (incl. subsidy), scholarships, pension payments and other existing legal entitlements – Maintenance payments from parents, spouse or registered/registered partner – Maintenance claims against parents, spouse or registered/registered partner, even if no maintenance is paid maintenance is paid – existing declaration(s) of obligation or liabilitySollte eine Mitversicherung bei einem Familienmitglied möglich sein, verpflichte ich mich, diese in Anspruch zu nehmen. Co-insurance is usually possible if a family member is compulsorily insured, e.g. if he/she is in (full-time) employment or receives unemployment/emergency assistance (AMS) or childcare benefits. (full-time) employment relationship or if I receive unemployment benefits/emergency assistance (AMS-Bezug) or childcare allowance. If I fail to meet these obligations, this may result in the discontinuation of basic benefits. I must repay any basic benefits that I have wrongly received. I must pay back. In addition, there may be consequences under criminal law. Other reasons for discontinuation of basic care: – Failure to keep important appointments, e.g. summonses, appointments at the service centre of Grundversorgung Wien (Caritas Asylum Centre), appointments at the Basic Care Counselling Centre. – Leaving the residential facility of the Vienna Refugee Assistance: In case of unjustified absence of more than more than 72 hours, I will be discharged immediately. – Moving to another province without an agreement with the Basic Care Counselling Centre – Stay abroad With my signature I confirm: – I am in need of assistance. I have no sufficient income and no realizable assets. – I have read and understood the information on basic care. – I agree to disclose all required information. – I acknowledge the consequences of not fulfilling the obligations. |
The declaration of need further serves as basis for the discontinuation, sanctions and benefit restrictions of basic care benefits. The declaration of need and the house rules are two important fundaments in the accommodation area. The NGOs in the provinces have different procedures for providing information on basic care. Some NGOs in the federal provinces have incorporated the information on rights and obligations into their house rules which are signed by asylum seekers. In most cases there are translations into relevant first languages available. However, occurs occur for illiterate asylum seekers, for which information about basic care and house rules must be explained orally with an interpreter. The documents must be signed in writing, including by illiterate asylum seekers. Overall, in practice, asylum seekers receive adequate information from NGOs and the BBU agency about basic care and their rights and duties.
There are no special reception centres to accommodate asylum seekers for public interest or public order reasons. In Lower Austria, a refugee centre was opened at the border with the Czech Republic for unaccompanied minor refugees who had become maladjusted. This reception centre in Drasenhofen had to be closed due to public protests and a report by the child and juvenile Ombudsstelle.[7] Following a complaint lodged by one asylum seeker placed in Drasenhofen the Administrative Court of Lower Austria came to the conclusion that the conditions in Drasenhofen violated the law. It even led to a criminal procedure against the right wing Landesrat Waldhäusl (Freedom Party) because of the suspicion that it had abused the power of office. He was acquitted in first instance procedure, the appeal by the Prosecutor’s office is pending.[8]
Until the end of 2020, asylum seekers who violated house rules were sometimes placed in less favourable reception centres in remote areas, although these sanctions are not foreseen by law. This practice has not been officially confirmed by the authorities but was reported by the persons concerned. There are no reports yet whether this practice has continued following the take over of BBU GmbH in December 2020. Although the freedom of movement is considered as not being limited in this case, presence at night is compulsory. In 2020, Basic care services on the federal level was reduced in 82 cases and withdrawn in 42 cases. There is no information on the reasons for this reduction and withdrawal.[9]
Procedure for reduction or withdrawal
Withdrawal or reduction of Basic Care provisions should be decided by the BFA as long as asylum seekers are in the admissibility and/or in merits and Basic Care is provided by one of the federal provinces. In practice, only few procedures of reduction or withdrawal of Basic Care have been carried out. This is partly due to the fact that NGOs manage to find a solution for their clients and because the competent offices are unwilling to make a written decision. Decisions are taken on an individual basis but written reasoned decisions are rare. Since December 2020, the Federal Agency (BBU-GmbH) has been responsible for the reduction or withdrawal of reception conditions while the persons are accommodated in federal reception centres.
Procedural safeguards in case of withdrawal or reduction do not fully meet the requirements set out in Article 20 of the recast Reception Conditions Directive. In some federal provinces, reduction or withdrawal of reception conditions may be ordered without prior hearing of the asylum seeker and without written notification of the decision, if the hearing imposes a disproportionate burden. In some federal provinces, the latter is only rendered upon request of the asylum seeker. It has also happened that the reception conditions of all asylum seekers involved in a violent conflict in a reception facility were withdrawn without examination of the specific role of all individuals concerned in the conflict.
There are no official decisions/notifications by the implementing authorities on the granting, restriction of benefits, sanctions or dismissal from basic benefits. Instead of that NGOs concerned and/or person concerned receive an information letter which explains and declares restrictions of basic care, from the implementing authority either by mail and/or by post. Restrictions on benefits are enforced differently in the provinces, and the amount of the allowances for income also vary. In Upper Austria, persons with an income due to employment receive an invitation from the authority for a personal meeting in which income, overpayment of basic benefits, and repayment is recorded. This agreement must be signed by the asylum seeker and is binding. Individual basic care benefits are not withheld immediately, but repayment instalments are ordered. In cases where the person does not fulfil their obligation to pay in instalments, financial benefits such as pocket money or food allowance will be withheld. In Vienna, people in basic care usually receive the information letter with repayment agreements via the supervising NGO. Previously, pay slips had to be sent to the authority (FSW), who was in charge of calculating the repayment. In some cases, the calculations were incorrect and the care team had to intervene with the authority.[10]
A legal remedy in the Basic Care Act of the Federal State is foreseen in case material reception conditions are withdrawn. Such decisions to withdraw or reduce Basic Care provision can be appealed at the Administrative Court (the Federal Administrative Court in case of a BFA decision, the Administrative Court of the federal provinces in case of decisions of the provincial government). Free legal assistance for appeal is provided in the law and is now implemented in all federal provinces.
Asylum seekers whose Basic Care has been terminated or reduced may re-apply for the provision of basic care in the federal province they have been allocated to. In practice, it is difficult to receive Basic Care again after it has been terminated, or at least it takes some time to receive it again. Asylum seekers who endanger the security of other inhabitants are sometimes placed in other reception centres with lower standards. Asylum seekers who have left their designated place of living may get a place in another reception centre in the same federal province after applying for Basic Care. In Upper Austria, one of the sanctions foreseen for several disciplinary incidents in residential facilities is that the person involved has to move to private accommodation. In addition, there is mandatory anti-violence training which must be carried out, otherwise the place of residence may be lost.[11]
Basic benefits are provided as a substitute, while any income must be reported and will be calculated in the basic care benefits. With regard to spouses who also earn an income, as well as income that may have been gained in the context of detention (if the asylum seeker worked in the centre where he/she was held), other restrictions may arise. If a person marries, the spouse is actually responsible for maintenance, and the marriage certificate and income of the spouse must be presented to the authorities. Depending on the financial situation of the spouse, basic care benefits are granted, reduced or discontinued. In the case of longer periods of detention and a working activity while in detention, released asylum seekers receive a so-called release allowance, which is paid to the applicant and counted as an income. The amount of the release allowance varies depending on the duration of the imprisonment and the work performed. In any case, it is counted towards the basic care benefits, as basic pension benefits are only granted as a substitute. Depending on the amount of the release allowance, basic care is granted immediately or benefits like pocket money may not be paid, which is decided and examined by the authority.[12]
If Basic Care is withdrawn because the asylum seeker is no longer considered to be in in need of benefits, for example because they have an income, they may receive Basic Care if it is proven that they are again in need of it. However, asylum seekers may end up homeless or in emergency shelters of NGOs mainly because they do not succeed in obtaining Basic Care after withdrawal or they have left the federal province for various reasons such as presence of community, friends or family in other federal provinces, unofficial job offers and so forth. Homelessness or accommodation in emergency shelters following the withdrawal of basic care was an issue that persisted in 2022. National figures on the number of asylum seekers concerned by this issue are not available. Official statistics do not exist.
In federal provinces such as Lower Austria people with negative return decision have to leave residential facilities within 10 days. However, if deportations are de facto not possible basic care benefits are further granted by the BFA. Individuals holding a residence permit called AB+ (Aufenthaltsberechtigung plus) receive basic care benefits until 12 days after receiving the title of stay. In Salzburg a reason for loss of basic care after a negative decision is, when people do not cooperate during the return procedure. In Vienna people with negative return decision can stay in the facilities or in their private apartments but have to participate in a of voluntary return interview. It happens that these people are picked up directly from the facilities by the police and taken into removal centres. In Upper Austria, persons who receive residence permit called RWR/RWR+ (“RotWeißRot”) receive basic care benefits as long as 10 days after the status is being granted. [13]
In 2018, the VwGH stated that the non-provision of benefits in kind can nevertheless allow for the authorities the possibility to grant cash benefits. This money substitute can also be claimed at a later stage through a formal request. The case concerned an asylum applicant whose application had been admitted by the Land Upper Austria which did not grant him cash benefits. The VwVG considered that, if no accommodation is available, other arrangements should be found to grant the applicant the material benefits he is entitled to.[14] The reason behind this decision was the lack of care that asylum seekers faced back in autumn of 2015, as they did not receive any benefits under the basic federal care and were supported by private initiatives instead. Therefore, it only applies where there is a massive influx of displaced persons, in accordance with Art. 5 Directive 2001/55/EC (see Annex on temporary protection).
[1] Article 2(1) B-VG Art 15a.
[2] Article 2(4)-(5) GVG-B.
[3] Article 3(1) GVG-B.
[4] Caritas Vienna, Information on counselling services https://bit.ly/3HRqU6V.
[5] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[6] Article 1(1)GVG-Wien.
[7] Kurier, Skandal-Asylquartier Drasenhofen wird geschlossen, 30 November 2019, available in German at: https://bit.ly/2SGQN3d.
[8] Der Standard, „Nach Waldhäusl-Freispruch: WKStA legt Beschwerde ein“, available in German at: https://bit.ly/3ZoyiiT.
[9] Ministry of Interior, Answer to parliamentary request, 5038/AB, XXVII. GP, 17 March 2021, available in German at: https://bit.ly/42urJgX.
[10] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[11] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[12] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[13] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[14] VwGH, Decision Ra 2018/21/0154-8, 20 December 2018, available in German at: https://bit.ly/3lj5t8N.