Author
General (scope, criteria, time limits)
The admissibility procedure starts upon registration of the application with the first interrogation (Erstbefragung) of the asylum seeker by the public security officer, who has to submit a report to the branch office of the BFA. The caseworker of the BFA in charge of the case informs the police about the next steps of the admissibility procedure within 24 hours on average. If the applicant is admitted to the regular procedure they are ordered to travel to the initial reception centre (EAST) or transferred there by the police.[1] There are three EAST which are responsible for the admissibility procedure: one is located in Traiskirchen near Vienna, one in Thalham in Upper Austria and one at the Airport Vienna Schwechat. If the asylum applicant is not admitted to the regular procedure, they stay in the Federal reception system and are not being allocated to one of the provinces. The person has then only the right to stay in the district where the Federal reception centre is located.
All asylum seekers have to undergo the admissibility procedure, except children born in Austria whose parents have received protection status in the country or whose application is admitted to the regular procedure. Their applications are admitted immediately to the regular procedure.[2]
An application may be rejected as inadmissible for the following reasons:
- The person comes from a safe third country;[3]
- The person enjoys asylum in an EEA country or Switzerland;[4]
- Another country is responsible for the application under the Dublin III Regulation;[5]
- The person files a subsequent application and “no change significant to the decision has occurred in the material facts”.[6]
Asylum seekers receive a green “procedure card” within 3 days, which is an indication that their stay in Austria is tolerated. This card is replaced by a “white card” as soon as the application is admitted to the regular procedure.
Within 20 days after the application for international protection has been lodged, the BFA must admit the asylum applicant to the in-merit procedure or notify them formally by procedural order about the intention to issue an inadmissibility decision on the ground that another state is considered responsible for the examination of the asylum claim; or that it intends to revoke the suspensive effect of a subsequent application. If the BFA does not notify the asylum applicant of its intention to issue an inadmissibility decision within 20 days, the application is thus admitted to the regular procedure. This time limit does not apply if consultations with another state on the application of the Dublin III Regulation take place.[7]
The 20-day time limit shall not apply if the BFA intends to reject the application for international protection and the applicant does not cooperate during the asylum procedure. The procedure is deemed no longer relevant, especially if the asylum seeker absconded from the procedure.[8] The duty of asylum seekers to cooperate includes the duty to provide the BFA with information and evidence about their identity and reasons for applying for international protection, to be present at hearings and personal interviews as well as to inform the authorities about their address. If the asylum seeker is unable to cooperate during the procedure for reasons relating to their person (e.g. illness, postponing the interview due to duty to comply with summons etc.), the 20-day time limit shall be suspended.[9]
If the BFA has ordered an age assessment, the 20-day time limit also does not apply.[10]
As a result of the admissibility procedure, the application may either be admitted to the regular procedure, dismissed on the merits, or asylum or subsidiary protection status may be granted. The granting of a status or the dismissal of the application in the admissibility procedure replaces the admissibility decision.[11] An admissible application shall nevertheless be rejected if facts justifying such a rejection decision become known after the application was admitted.[12] In practice, this provision is applied in Dublin cases without the precondition that the facts justifying admissibility were not known before.[13]
The information provided by the Ministry of Interior did not include the number of inadmissibility decisions issued in 2019.[14] However, the admissibility procedure lasted for approximatively five days in 2018. This did not significantly change in 2019. It should be noted that, especially in the context of family proceedings, the admission often already takes place on the day of the application, which importantly reduces the calculation of the average duration.[15] It should be further noted that, during the admission procedure, asylum seekers are given basic care in federal care facilities. In 2020, asylum seekers were accommodated in federal facilities and received federal basic care for around 26 days on average.[16] In 2021, the average time of a person (separate data for asylum seekers not available) accommodated in federal basic care is 80 days, compared to 1,033 days in province basic care.[17] As of September 2023, the average time of a person’s accommodation in federal basic care is 123 days (2022: 153 days), compared to 622 days in province basic care (2022: 528 days).[18]
Personal interview
A personal interview is required by law. The asylum seeker is interrogated by law enforcement officials at the registration stage of the application for international protection and a second time by officials of the BFA during the admissibility procedure at the initial reception centre. The police are not allowed to ask detailed questions on the merits of the application such as the specific reasons for fleeing the country of origin or residence. There is a clear division of tasks between the police – which has the duty to assess the identity, personal data and the travel route of the applicant – and the officials of the BFA for assessing the facts on which the application is based. In reality, this sometimes leads to problems: the last question in the questionnaire of the police always concerns the reason why the person had to flee. In most cases, the applicants are told to give a short answer only and more details in a later interview. As a result, the reasons for fleeing the country of origin may be found not credible at the interview stage before the officials of the BFA if the asylum seeker has based the application for international protection on other reasons than those stated immediately upon arrival at the police stage. There is jurisprudence by the High Administrative Court that the evidence gathered in the initial interview at the police shall not be used in an ”unreflective manner” by the authorities and the Court as the initial interview does not focus on the reasons why the person is seeking international protection.[19]
In this regard, Article 19(4) AsylG explicitly foresees that, in the admission procedure, the asylum seeker shall also be informed that their own statements will be accorded particular attention, meaning that they should be aware of the consequences of false testimonies.
The law allows for an exception from the personal interview in case the asylum seeker has absconded from the procedure while being accommodated in the initial reception centre. If the facts relevant to a decision on an asylum claim are established, the fact that the asylum seeker has not been interviewed yet by the BFA or by the BVwG shall not preclude the rendering of a decision. In practice this exception is not applied very often, however. The BFA files most of these cases as “discontinued”, which means that upon request by the asylum seekers the procedure will be reopened. An exception may apply in a subsequent asylum application that was submitted within two days before the execution of an expulsion order.[20] An interview during the admission procedure may be dispensed with if the procedure is admitted.
Appeal
For the admissibility procedure, the appeal stages are the same as in the regular procedure. The time limits within which an appeal against the BFA’s inadmissibility decision must be lodged is two weeks and the appeal has in general no suspensive effect, except when decided otherwise by the BVwG.[21]
As a first step, the BVwG decides within one week after receiving the appeal whether the appeal will have suspensive effect during the continuing appeal procedure. If the BVwG does not grant a suspensive effect to the appeal or does not admit the appeal after seven days, the asylum applicant can be transferred to the responsible Member State, the safe third country or their country of origin in case of a subsequent application.
If the application is rejected on the merits in the admissibility procedure and the second instance grants suspensive effect after the appeal was brought in, the granting of suspensive effect also means that the application has been admitted in Austria.[22]
Appeals against a decision rejecting the asylum application as inadmissible do not have suspensive effect unless this is granted by the BVwG.[23] The reasons for not granting suspensive effect to the appeal in inadmissible cases correspond to grounds for declaring claims manifestly unfounded, as mentioned in Regular Procedure: Appeal.
The appointed legal adviser is not obliged to help the asylum seeker to draft the complaint, despite the fact that it must be written in German, and the requested qualification for legal advisers is also not sufficient.
Legal assistance
The BBU GmbH as legal adviser is automatically appointed by the BFA in case it intends to reject the application in the framework of the admissibility procedure and if an interview is to be conducted within 72 hours of handing over a procedural order of its intention to reject the application in the admissibility procedure. Legal advice has to be provided at least 24 hours before the second interview, the one with the BFA, during which the asylum seeker is given the opportunity to be heard. If the interview is conducted within 72 hours, presence of legal advisers during the interview is mandatory unless the applicant dismisses the advisor explicitly. If the interview is conducted more than 72 hours after, the BBU will not even be informed of the case until a negative decision is issued.
Free legal advice is foreseen for subsequent asylum applications under the same conditions (interview within 72 hours) as well, including at appeal stage.[24] Most of the cases that are regarded as inadmissible are Dublin cases (see Dublin: Legal Assistance) and Safe Third Country cases.
Since January 2021, legal assistance has been provided by the new Federal Agency, the BBU GmbH (see Regular procedure: Legal assistance).
Suspension of returns for beneficiaries of protection in another Member State
There is no general suspension of returns of beneficiaries of protection to any EU member state. In practice, there are mainly cases of Afghan and Syrian nationals with a protection status in either Greece or Bulgaria.
Rejections for existing protection in another EU state are also issued regularly by the BFA concerning countries such as Greece or Hungary, even though the appeal is regularly granted suspensive effect.
Hungary: In a case of a Syrian national who has received subsidiary protection status in Hungary in 2015 and applied for asylum in Austria in 2020, the BVwG rejected the applicant’s appeal.[25] Even though the applicant brought forward that he had no access to support from the state, had to live on the street and was assaulted the Court came to the conclusion that there exist support possibilities from the government and from NGOS and that there is no real-risk of an Art 3 ECHR violation.
Greece: There is no general policy of suspension of transfers of BIPs to Greece. Applications by beneficiaries of international protection in Greece have risen since 2020. While the first instance authority initially admitted vulnerable cases to the asylum procedure, a change of strategy was observed throughout 2021. Until then, in general, in single cases where protection status was granted by Greek authorities, the Courts rejected applications lodged in Austria. This changed in June 2021 as the Constitutional Court ruled that, due to inadequate reception conditions in Greece a thorough assessment has to be carried out before transferring beneficiaries of international protection back to Greece.[26] the Constitutional Court suspended the decision of the Federal administrative court which had rejected an appeal from an Afghan woman who received asylum status in Greece in 2019 and applied for asylum in Austria in 2020. Looking at the recently updated AIDA country report on Greece, the Constitutional Court considered that the applicant may face a risk of violation of Art 3 ECHR violation and ordered further examinations on the access to food, shelter and sanitary facilities. The decision set out a benchmark as it was done in plenary of the Constitutional Court. Following this decision, the BVwG reconsidered several first instance decisions based on insufficient information on the situation in Greece.[27] A project called “Tetraa” was initiated by asylkoordination together with Diakonie Flüchtlingsdienst and lawyer Christian Schmaus. In this project, strategic litigation is being conducted focusing on asylum procedures of beneficiaries of International protection in Greece coming to Austria applying for asylum because of dire living conditions in Greece.[28]
There is an examination of the individual cases and communication with the Greek authorities. However, in at least one case a person who had received subsidiary protection in Greece and whose application was rejected in Austria, was deported to Greece in 2022.[29] There was no transfer in 2023. In the particular case of 2022, the case is still pending at the Constitutional Court in Austria at the time of writing.
Also in 2023, the Constitutional Court upheld the appeals in two cases due to lack of investigations concerning access to basic care systems[30] and in a case of a pregnant applicant with a recognised refugee status in Greece.[31] The Federal Administrative Court had wrongly based the rejection of the applications on the fact that the applicant is based in Austria due to her residence permit and will not be transferred to GR anyway. Therefore the decision would be a “purely hypothetical “Return” act. The Constitutional Court found that the general reference to the reporting situation is insufficient.
Bulgaria: There is also some case-law regarding beneficiaries of international protection in Bulgaria who come to Austria to lodge a new application. In 2016, a Syrian mother with 3 children gave birth after she arrived in Bulgaria where she suffered from prenatal depression. She was granted subsidiary protection in Bulgaria shortly after moving to Austria. The Bulgarian authorities denied responsibility under the Dublin system, but were ready to take over as a result of the readmission agreement. The BVwG considered the deportation to Bulgaria as not permissible because of the PTSD from which the children were suffering and which was triggered, among other things, by experiences during the imprisonment in Bulgaria at the end of September 2015, as well as the intensive family relationship with relatives living in Austria.[32] In 2023, the BVwG granted suspensive effect in several cases concerning Bulgaria and appeals were upheld as the investigations of the first instance concerning living conditions were not thorough enough.[33]
The BVwG has also accepted an appeal of an Afghan family in 2017 who had received subsidiary protection in Hungary, due to the need to clarify whether the current situation of beneficiaries of protection in Hungary raises a risk of violation of Article 3 ECHR.[34] In the case of a single Syrian who obtained subsidiary protection in Bulgaria, however, the BVwG found no real risk on the ground that he did not belong to a vulnerable group.[35]
[1] Article 29(1) AsylG.
[2] Article 17(3) AsylG.
[3] Article 4(1) AsylG.
[4] Article 4a(1) AsylG.
[5] Article 5(1) AsylG.
[6] Article 12a(2)(2) AsylG.
[7] Article 28(2) AsylG.
[8] Article 28(2) AsylG.
[9] Article 28(2) AsylG.
[10] Article 28 (2) AsylG in connection with Article 29 (6) AsylG.
[11] Article 28(2) AsylG.
[12] Article 28(1) AsylG.
[13] VwGH, Decision Ra 2006/20/0624, 25 November 2008.
[14] Information provided by the Ministry of Interior, 18 February 2020.
[15] Answer to parliamentarian request, No 3235/AB-BR/2018, 31 July 2018.
[16] Ministry of Interior, Answer to parliamentary request 4244/AB, XXVII. GP, 18 January 2021, available in German at: https://bit.ly/2OPthRn.
[17] Ministry of Interior, Answer to parliamentary request 9123/AB, XXVII. GP, 14 March 2022, available in German at: https://bit.ly/4bdHDAh.
[18] Ministry of Interior, Answer to parliamentary request 14066/AB, XXVII GP, 22 November 2023, available in German at: https://shorturl.at/dzSZ5.
[19] VwGH,14.6.2017, Ra 2017/18/0001.
[20] Article 19(1) AsylG.
[21] Article 16 (2) BFA-VG.
[22] Article 17 BFA-VG
[23] Article 16(2) BFA-VG.
[24] Article 52(1) BFA-VG.
[25] BVwGH, Decision W235 2238204-1/10E, 26 April 2021, available in German at: https://bit.ly/3sBERzt.
[26] Austrian Constitutional Court, Decision E599/2021, 25 June 2021, available in German at: https://bit.ly/42jlSuq.
[27] BVwG, Decisions W235 2244837-1/8E, 21 September 2021, available in German at: https://bit.ly/409ialm and W144 2244839-1/8E, 14 September 2021, available in German at: https://bit.ly/3ZQc7SR.
[28] Asylkoordination österreich, TETRAA, available in German at: https://bit.ly/41SC2dQ.
[29] Decision BFA, IFA 1312763810, 9 November 2022.
[30] VfGH, Decision E 818/2023-11, 13 June 2023.
[31] VfGH, Decision E 1490/2023-14, 13 December 2023, available in German at: https://shorturl.at/zJwC5.
[32] BVwG, Decision W192 2131676, 8 September 2016.
[33] BVwG, Decision W232 2287167, 24 February 2024.
[34] BVwG, Decision W205 2180181-1, 21 December 2017, available in German at: https://bit.ly/3lcwISB.
[35] BVwG, Decision W233 2166376-1, 18 September 2017, available in German at: https://bit.ly/3Jgb7R4.