Reduction or withdrawal of reception conditions

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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; 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.

Unjustified Basic Care benefits may also be prescribed after the termination of Basic Care. A few former asylum seekers have been requested to pay back several thousand euros – although their monthly Basic Care benefits had already been reduced – due to the fact that they had a job and income.

Material reception conditions may be withdrawn where the asylum seeker:^[2]

1. Repeatedly violates the house rules and/or his or her behaviour endangers the security of other inhabitants;
2. Leaves the designated place for more than 3 days, as it is assumed that they are no longer in need of Basic Care;
3. Has submitted a subsequent application;
4. Has been convicted by court for a crime on a ground which may exclude him or her 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.
5. Has had his or her application rejected or dismissed and suspensive effect was excluded according to Article 18(1) BFA-VG. If the applicant cooperates to return voluntarily, he or she is eligible to material reception conditions until his departure.^[3] 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.^[4]

In 2017, three asylum seekers have been unduly benefiting from reception conditions as they had provided false information on their age and subsequently benefitted from specific care normally granted to children. They had thus received higher care standards amounting to approximately €50,000. In one case in which the conviction had already been issued, the Higher Regional Court (Oberlandesgericht, OLG) reversed the decision of the lower court and referred the case back, arguing that the undue use of reception conditions is only punishable if the person commits fraud in order to obtain a right of residence.^[5] Criminal sanctions are not applied if the applicant would have been granted a residence permit anyway. Nevertheless, the reform that entered into force on 1 November 2017 sets out sanctions for false information provided not only to the BFA and the BVwG but also to the police in the context of the first interview (Erstbefragung).^[6] However, this did not have much impact in practice so far.

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]

In practice asylum seekers who violate the house rules may be placed in less favourable reception centres in remote areas, but such sanctions are not foreseen by law. Although the freedom of movement is considered as not being limited in this case, presence at night is compulsory.

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. It should be noted that, as of December 2020, the Federal Agency (BBU-GmbH) will be responsible for the reduction or withdrawal of reception conditions.

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.

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.

If Basic Care is withdrawn because the asylum seeker is no longer considered to be in in need of benefits, for example because he or she has 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 is an issue that persisted in 2019. Figures on the number of asylum seekers concerned by this issue are not available.

In 2018, the VwGH has 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.^[8] The reason behind this decision is 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 in cases where there is a massive influx of displaced persons, in accordance with Article 5 of Directive 2001/55/​​EC.