U.S. Committee for Refugees World Refugee Survey 2003 - Austria

At the end of 2002, Austria hosted some 30,900 refugees and asylum seekers, including 29,900 pending cases and 1,000 persons granted asylum during the year.

Asylum seekers filed about 37,000 applications during 2002, about a 20 percent increase from the 30,100 applications filed in 2001. The largest numbers of asylum seekers came from Yugoslavia (4,700), Iraq (4,500), Afghanistan (4,000), Turkey (3,600), and India (3,400).

The Federal Refugee Office (Refugee Office) issued 5,100 decisions during the year, 1,000 of them positive; an approval rate of around 20 percent, slightly lower than the 23 percent approved in 2001. The Refugee Office denied around 4,100 claims during the year, about 280 them as manifestly unfounded, and closed the cases of 24,800 asylum seekers who could not be located.

The Asylum Procedure

The 1997 Asylum Act governs Austria's asylum procedure. Asylum seekers have provisional residency rights, except for those who enter Austria illegally and are therefore channeled into the accelerated procedure. Unaccompanied minors are entitled to the assistance of guardians, such as representatives from a youth welfare office, but these representatives are generally not trained in asylum law and procedure.

The Refugee Office, an agency within the Interior Ministry, makes first-instance decisions on asylum applications. Asylum seekers may appeal negative decisions to the independent Federal Asylum Review Board. A further appeal to the Austrian administrative court is possible. The High Administrative Court has ruled that asylum seekers may not be deported while their applications are still pending at the first level of appeal.

The asylum law states that applicants who arrive from safe-third-countries are not admissible to the asylum procedure. Austria considers a country to be safe if it has signed the UN Refugee Convention; has established asylum procedures, including an appeals procedure; grants returning asylum seekers access to that procedure; and has ratified the European Convention on Human Rights (ECHR) and Protocol 11 of the ECHR. The safe-third-country provision is not used in cases where the asylum seeker is a citizen of a member country of the European Economic Association, is an unmarried minor whose parents have been granted asylum in Austria, or has a spouse or minor children granted asylum in Austria. During 2002 Austria did not make extensive use of the safe-third-country provision, and mainly applied it to persons entering Austria from Hungary.

Applicants deemed inadmissible on safe-third-country grounds or because another European Union (EU) member state is responsible for reviewing the application under the Dublin Convention, and applicants whose cases are considered manifestly unfounded, are subject to the accelerated procedure. (See "Dublin Convention" box, p. 176.) Applicants denied asylum in Austria's accelerated procedure have ten days to file an appeal.

The law also creates an accelerated airport procedure, but the UN High Commissioner for Refugees (UNHCR) has the power to refer negative decisions in airports to the normal asylum procedure; a process that the refugee agency has confirmed works as intended.

Most asylum seekers enter Austria illegally, and then apply for asylum. Applications for asylum may also be made at Austrian embassies abroad.

Recognized refugees receive long-term residence permits and the right to work, and are eligible for integration assistance.

Complimentary Forms of Protection

The authorities may give failed asylum seekers a temporary residence permit if they cannot be removed because removal would violate the UN Convention on Torture, the torture provision of ECHR, or the non-refoulement provision of the UN Refugee Convention. The authorities may extend the permit if the person cannot be removed.

The Austrian government can also award temporary protection to groups of persons "during times of heightened international tension, armed conflict, or other circumstances that endanger the safety of entire population groups." This provision has been used for Bosnians and Kosovars, during the conflicts in those regions.

Finally, a residence permit may be issued on humanitarian grounds in cases deserving special consideration. Persons who have left their country of origin during an armed conflict may receive this permit for three months, renewable during the period of the conflict.

Assistance and Accommodation

Under the Federal Care Provisions Act of 1991, asylum seekers are, in principle, given accommodation, basic health care, and modest stipends (federal care). In practice, only about one-third of asylum seekers receive federal care. Many are excluded for various reasons, including lack of identity papers or a criminal conviction. Asylum seekers ineligible for federal care often rely on overburdened religious and charitable organizations for their basic needs.

In 2002, the government denied federal care to persons subject to "absolute" exclusion, i.e., nationals of EU or European Economic Area countries, and citizens of Armenia, Azerbaijan, Georgia, Yugoslavia, Macedonia, Nigeria and Turkey whose claim was rejected in a first instance. Persons subject to "relative" exclusion – nationals of India, Pakistan, Bangladesh, Bosnia, Croatia, Macedonia, Yugoslavia, Albania, Armenia, Georgia, and Russia – were eligible only if it was "necessary to guarantee an efficient asylum proceeding" or if the asylum seeker was underage and therefore "especially in need of protection." These countries were singled out because the ministry officials believed that their applications for asylum have almost no chance of success. Serbs from Kosovo, Chechens from Russia, and Kurds from Turkey, however, were exempt.

Besides creating general hardship, these measures also made it difficult for some applicants to maintain an address, a necessity for notification of asylum proceedings. UNHCR reported that within a matter of weeks the number of asylum seekers housed in the main government facility dropped from 1,500 to 650. Nongovernmental organizations (NGOs) tried to house asylum seekers, but their capacity was limited. UNHCR criticized the change, saying it provided incentive for venue shopping in other EU countries.

The Austrian government and NGOs engaged in talks over the issue to no avail. Later, the Austrian government hired a private German firm, European Homecare, to provide advice on repatriation to asylum seekers evicted from the shelters, a job NGOs had refused. Advocates accused the Austrian government of asking the private firm to provide misleading information. An Austrian newspaper reported that the Interior Ministry had issued a directive to the firm that stated, "it would be of no harm if the advised persons should get the impression that the asylum procedure would be carried out swiftly, leading to ... the corresponding coercive measure," and advised the firm to be discreet about the directive.

Detention Asylum seekers arriving without valid travel documents may be detained until they are formally admitted into the asylum process, but for no more than five days, unless their case is determined to be manifestly unfounded. The government can detain asylum seekers it deems likely to abscond during the proceedings for up to six months.

Deportation

A court found three police officers guilty of involuntary manslaughter in the 1999 case where, in the process of an attempted deportation, the officers had bound and gagged a rejected Nigerian asylum seeker causing him to suffocate. They received an eight-month conditional sentence, suspended for three years. No other police officers in Europe have been prosecuted in cases where asylum seekers have died during deportation, although there have been at least ten such deaths between 1998 and 2001. In addition, the case allows for a civil law suit against the officers by the victim's family.

Migration Control

Austria has readmission agreements with Belgium, the Czech Republic, Estonia, France, Germany, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the Netherlands, the Slovak Republic, Slovenia, and Switzerland. These agreements do not refer solely to asylum seekers and refugees, but to foreigners in general. Austria also has signed a bilateral protocol with Romania that applies solely to the return of nationals of both states.

Austria and the Czech Republic have agreed to form a joint force to combat illegal migration between the two countries. Austria has also signed an agreement with the Czech Republic, Hungary, Poland, Slovakia, and Slovenia to cooperate in fighting organized crime, regulating border traffic, and coordinating asylum issues. In June of 2002, Austria signed a readmission agreement with Poland.

Individuals who assist illegal immigrants, even if the assistance is provided for humanitarian reasons, may face criminal charges. For example, charges may be filed for aiding an immigrant who lacks a valid residence permit by renting an apartment to him or her, or for soliciting the services of a trafficker to help bring a refugee into Austria from a region in conflict.

Other Developments

The appeals divisions handed down two rulings granting asylum based on fear of gender-based persecution, specifically fear of female genital mutilation. These were the first of their kind in Austria.