Before 20 July 2015, the law already provided for “procedures for the imposition of measures to terminate residence” subject to reduced time limits for appeal and decisions on appeal, with the effect that certain cases are dealt with in an accelerated manner. For the purposes of this report these are referred to as accelerated procedures.
Under Article 27 AsylG, such a procedure is applied where:
During the admissibility procedure, the BFA has notified the applicant of its intention to reject the application as inadmissible (see section on Admissibility Procedure) or dismiss the application on the merits;1
The appeal procedure is to be discontinued where the asylum seeker has evaded the procedure and a return decision was issued by the BFA;2
The BFA determines that the application should be rejected as inadmissible or dismissed on the merits and there is a public interest in accelerating the procedure.3 Public interest exists in particular, albeit not exhaustively, where an applicant:4
Has committed a criminal offence;
Has been charged with a criminal offence by the Department of Public Prosecution;
Has been subject to pre-trial detention; or
Has been caught in the act of committing a criminal offence.
In case a “procedure for the imposition of measures to terminate residence” has been initiated, a decision shall be taken as quickly as possible and no later than 3 months on the asylum application.5
The amendment of the Asylum Act coming into effect on 20 July 2015 introduced in Article 27a an accelerated procedure as such and states that certain cases may be decided within 5 months, with a possible extension if necessary for the adequate assessment of the case. Such accelerated procedures are foreseen when grounds for denying the appeal suspensive effect apply, as stated in Article 18 BFA-VG. These reasons are:
The asylum seeker comes from a safe country of origin;
There are indications that the asylum seeker endangers public security and order;
The asylum seeker has provided false statements on their identity, nationality and authenticity of documents;
No reasons for persecution have been asserted;
Statements adduced are obviously false or contradictory;
An executable return decision has been issued before applying for international protection; and
The asylum seeker refuses to give fingerprints.6
Procedures are also subject to stricter time limits in case the asylum application is examined at the airport (see section Border Procedure above).
All asylum seekers must have one personal interview. The law permits an exception in case the asylum seeker has evaded the procedure.7 If the facts are established, failure by the BFA or by the Federal Administrative Court to conduct an interview should not preclude the rendering of a decision.
In last-minute subsequent applications to prevent the execution of an expulsion order and subsequent applications without de facto protection against deportation (which have no suspensive effect and the expulsion order issued after the rejection of the first asylum application can be executed), the BFA may omit the personal interview.8
Time limits for appeals depend on the nature of the decision appealed in the accelerated procedure. For decisions rejecting an application as inadmissible, the appeal must be submitted within 2 weeks (see section on Admissibility Procedure: Appeal above). The BVwG has to decide on the appeal within 3 months in such cases with suspensive effect.9
The Federal Administrative Court (BVwG) has to decide on the appeal against decisions to reject the application including an expulsion order within 8 weeks.10
In subsequent applications without protection against deportation, the court has to decide within 8 weeks if suspensive effect was not awarded. This provision has not much effect for the asylum seeker, however, as they may have been expelled or transferred before. Nevertheless, the appeal that must be lodged within 2 weeks after the notification of the decision may have suspensive effect.11
Difficulties in lodging an appeal against negative decisions in the accelerated procedure are the same as those described under the Dublin Procedure: Appeal and result mainly from the short time limit of 2 weeks to lodge the appeal, as well as insufficient free legal assistance. Organisations contracted to provide legal assistance have to organise interpreters if necessary.
Access to free legal assistance at first instance is difficult for asylum seekers detained during the accelerated procedure, although they may contact NGOs for advice. Since the amendment of 20 July 2015, free legal assistance is available for subsequent asylum applications too.12
In so called fast track accelerated procedures, mandatory free legal advice for the admissibility procedure is circumvented by forwarding the procedure to the BFA branch office without prior admission to the regular procedure. This practice takes place from time to time in Traiskirchen, where admissibility procedures are conducted in one building (EAST) and in another building in which a branch office of the BFA conducts regular procedures. At the time asylum seekers get the invitation for their interview, they are still subject to restrictions on freedom of movement. Therefore they are not able to consult NGOs or lawyers outside the restricted area.
- 1. Article 27(1)(1) AsylG, citing Article 29(3)(4)-(5) AsylG.
- 2. Article 27(1)(2) AsylG, citing Article 24(2) AsylG.
- 3. Article 27(2) AsylG.
- 4. Article 27(3) AsylG.
- 5. Article 27(8) AsylG.
- 6. Article 18 BFA-VG.
- 7. Article 24(3) AsylG.
- 8. Article 19(1) AsylG.
- 9. Article 27(8) AsylG.
- 10. Article 17(2) BFA-VG.
- 11. Article 18(2)(5) BFA-VG. See e.g. AsylGH (Asylum Court), A8 260.187-2/2011, 2 August 2011.
- 12. Article 49(2) BVA-VG in connection with Article 29(3) BFA-VG.