Author
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.[1]
The Austrian system of basic care is anything but uniform. Regulations on the scope and target group for basic care, and the existence of a need for assistance, are applied equally, but there are nevertheless different arrangements as to how basic care is implemented in practice in the provinces. This is visible in the field of financing, reasons for the dismissal/sanctioning of benefits from basic care, or access to and conditions of private accommodations. Differentiations also apply regarding the standards in basic care, for example the determination of the minimum amount of square meters per person based on the available living space, the care key/care ratio (i.e. the number of persons taken care of by each social worker), but also the different amounts to be granted for the payment of food and rent allowance for private housing as well as different procedures or methods to provide pocket money, leisure money, and interpretation costs.
A persisting issue in this area is the insufficient funding for care, counselling and housing in the context of basic services. The daily rates for funding basic care facilities as well as for food or private housing have been raised in 2022 for the first time since 2016: the rates for organised housing in the federal provinces have been raised from € 21 to € 25 per person/day (accommodation and eating included). The rates for private accommodation were raised to € 260 (from € 215) for and € 165 (from € 150) for rent. Pocket money in organised housing (€ 40,-/year), clothing allowance (€ 150,-/year), education allowance (€ 200,-) have not been increased since 2004.[2]
In the federal provinces, NGOs function as accommodation providers for organised housing. Due to high costs of living, several NGOs threatened to close down facilities as the money provided by the state was not sufficient.[3] With the raise by € 4, a crisis was temporarily avoided but there is still not enough financial resources provided to cover all costs (see further down, same section.
Eligibility to basic care
Are part of the target group for basic care in federal provinces, if the asylum procedure has been admitted in Austria and an allocation to a province has been made:[4]
- Asylum seekers until the legal conclusion of the procedure.
- persons entitled to subsidiary protection (§8 AsylG);
- persons entitled to asylum (§3 AsylG) during the first four months after being granted asylum;
- Persons with a legally binding negative outcome of the asylum procedure and persons without a right of residence if they cannot be deported for legal or factual reasons;
- Persons with a specific residence title for reasons worthy of consideration;
- Displaced persons from Ukraine §62 Asylum Act since March 2022.
The law passed in June 2019 foresees that the new Federal Agency (BBU GmbH) is responsible for providing reception conditions (basic care) in the admissibility phase as of July 2020. The Ministry of Interior postponed the start of the activities of the Federal Agency by decree until December 2020. Thus, the BBU GmbH has been in charge of providing Basic Care to asylum seekers during the admission procedure since 1 December 2020.
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. The provision of Basic Care as currently regulated may violate Article 17(1) of the recast Reception Conditions Directive. Indeed, in Austria, Basic Care is provided as soon as the person 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 then asks the BFA for instructions: 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 and thus is not entitled to Basic Care.
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.[5] However, Basic Care conditions do not apply in detention or where alternatives to detention are applied.[6] 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).
Furthermore, EU and EEA (European Economic Area) citizens are excluded from the basic 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.[7] As regards Dublin returnees, they are brought to EAST Traiskirchen where an interview is conducted. Dublin returnees are then accommodated in Traiskirchen or Thalham or detained in deportation centres.
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.[8]
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 Grundversorgung Betreuungsinformationssystem (GVS BIS). National and local authorities, as well as contracted NGOs, have access to the files. In Tyrol, a subsidiary – Tiroler Soziale Dienste (TSD) of the province of Tyrol – is responsible for the care and accommodation of protection seekers and has access to the GVS BIS, they have extended administrative rights as they can activate and deactivate benefits in basic care. In Vienna and Salzburg, counselling centres in particular have access to the GVS BIS within the framework of basic services, but only reader rights, no administration rights.
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 such as Salzburg and Lower Austria cease support almost immediately after the rejection of the asylum claim (after 10 days). In Lower Austria and Salzburg, people with legally negative asylum decisions are released after 10 days, with the exception of people who cannot be deported for legal or factual reasons, in which case the BFA is responsible for the verification. In Lower Austria, people with a legally negative asylum decision from Afghanistan in particular can remain in basic care due to the current situation in the country. In Salzburg, the BFA also checks, among other things, the obligation to cooperate for the return; if the obligation to cooperate is not met, people are also released from basic care.[9] In Vienna, access to basic care services is prolonged even after the asylum application was rejected, mainly because the city cannot afford having many persons without insurance and housing. However, people coming to Vienna from other provinces after their asylum application was rejected normally do not get access to the basic care services in Vienna.[10]
The assessment of resources
A precondition for Basic Care is the need for support which is assessed by the BBU GmBH. 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.[11] 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.[12] 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.[13]
Although the amount of material reception conditions is specified in the Basic Care Agreement,[14] 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 Salzburg and all federal provinces (except Tyrol, a single person can keep € 240),[15] 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.[16]
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.[17] 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, the authority has to leave them at least € 120.[18] Upon termination of the provision of basic care, any difference between the actual costs incurred and the cash seized is reimbursed. In 2022, € 405,605 (compared to € 244,331 in 2021, and €127,880 in 2020) were seized from 7,502 (2021: 3,591;2020: 2,237) applicants.[19] As of September 2023, € 144,019 were seized from 1,816 applicants.[20]
As of 2 January 2024 78,830 people received basic care (compared to 92,984 in 2022 and 30,363 in 2021). The total number of beneficiaries of basic care more than tripled in 2022 compared to 2021. The main reason for the increase is the political decision to put TPD beneficiaries from Ukraine into the basic care system, where they represent 55,262 persons. The rest refers to 21,661 (2020: 18,273) applicants for international protection and 11,655 (2020: 9,484) beneficiaries of international protection. In 2022, 17,286 asylum applicants were transferred from the first reception centres to the basic care facilities in the provinces after admission procedure was completed. Given the high number of applications in 2022 (112,272) this shows that many applicants left Austria immediately after applying for asylum.[21]
| Beneficiaries of basic care as of 31 December 2021-2023 | |||
| 31 December 2021 | 31 December 2022 | 31 December 2023 | |
| Asylum applicants | 18,273 | 21,661 | 20,572 |
| Beneficiaries of protection and others | 12,090 | 71,323 | 56,156 |
| Refugees | 1,982 | 2,596 | 3,666 |
| Beneficiaries of subsidiary protection | 7,502 | 9,059 | 10,743 |
| Dublin procedure pending | 738 | 768 | 604 |
| TPD (Ukraine) | N/A | 55,262 | 40,011 |
| Rejected asylum applicants | 1,868 | 1,607 | 1,261 |
| Total | 30,363 (no TPD) | 92,984 | 78,830 |
Source: Ministry of Interior, Basic care system, 31 December 2022, 2 January 2024 (not public).
[1] https://bit.ly/3waChWt, 15a Vereinbarung Grundversorgung, available in German.
[2] Der Standard, “Bund fixiert höhere Beiträge für Quartiergeber von Geflüchteten”, 8 June 2022, available in German at: https://bit.ly/3w33D0V.
[3] NGO exchange meeting organised by asylkoordination, not published.
[4] Grundversorgung, Fonds Soziales Wien and Land Niederösterreich, available in German at: https://bit.ly/3GGGq4l.
[5] Articles 1(1) and 2(1) GVG-B.
[6] Article 2(2) Basic Care Agreement; Article 2(3) GVG-B. Note that this not in conformity with Article 3 recast Reception Conditions Directive.
[7] Recital 11 Dublin III Regulation. See also CJEU, Case C-179/11 Cimade & GISTI v Ministre de l’Intérieur, 27 September 2012, available at: http://bit.ly/3mZ9tvv, para 46.
[8] Article 2(7) GVG-B.
[9] asylkoordination österreich, Nationwide NGO survey on basic services, Dec 21/Jan 22, unpublished.
[10] NGO exchange meeting organised by asylkoordination, not published.
[11] Article 2(1) Basic Care Agreement (GVV)-Art 15a.
[12] Article 5(1)(c) Schengen Borders Code.
[13] NGO exchange meeting organised by asylkoordination, not published,
[14] Articles 6, 7 and 9 Grundversorgungsvereinbarung (GVV); Art. 15a B-VG.
[15] asylkoordination österreich, Nationwide NGO survey on basic services Dec 21/Jan 22, unpublished.
[16] Salzburg Basic Care Regulation LBGl. 57/2016, available in German at: http://bit.ly/2kGpqma.
[17] Article 15 (3) AsylG.
[18] Article 2 Abs 1 basic care law.
[19] Ministry of Interior, Answer to parliamentary request 4887/AB, XXVII. GP, 12 March 2021, available in German at: https://bit.ly/38GNAY9; Ministry of Interior, Answer to parliamentary request 9531/AB, XXVII. GP, 11 April 2022, available in German at: https://bit.ly/3KPxwnY; Ministry of Interior, Answer to parliamentary request, 13740/AB, XXVII. GP, 20 April 2023 , available in German at: https://bit.ly/3AezMuF.
[20] Ministry of Interior, Answer to parliamentary request 15847/AB, XXVII. GP, 21 November 2023, available in German at: https://shorturl.at/kOR37
[21] OÖ Landesregierung, Beantwortung einer Anfrage an LR Hattmansdorfer, Beilage 13124/2023, XXIX. GP, 5. April 2023, available in German at: https://bit.ly/3LJOF5h; ORF.at, “Österreich nicht „Zielland Nummer eins“”, 5 February 2024, available in German at: https://bit.ly/3QtkHEv.