Author
According to Article 76 FPG, the principle of necessity has to be taken into account by the BFA when issuing detention orders. Detention has to be necessary to reach one of the stated objectives.[1] When examining the proportionality of detention, criminal offences committed by the applicant are taken into account to assess whether the public interest is affected by the seriousness of the offences. Similarly, the authorities must assess whether the public interest in speedy deportation overrides the personal liberty of the individual.[2] Proportionality means to weight or balance the interests between the public interest of securing the procedure (i.e. mainly in the context of deportations) and the right to liberty of the individual.
The BFA must review the proportionality of detention every 4 weeks.[3] Proportionality is also a constitutional principle applicable to all administrative procedures and therefore also to asylum and return proceedings. This has been confirmed by the jurisprudence of the VwGH[4] and the Constitutional Court (VfGH).[5]
In airport procedures, entry to the territory is denied and applicants are ordered to stay in a specific area of the airport designated as EAST. The entry to the territory has to be allowed as soon as a rejection of the application does not seem probable anymore. If a rejection seems probable the authorities can secure the rejection of the application by not letting the applicant access the territory for a maximum of six weeks.[6] The applicant can leave from to Austria to another country at any time, however, in which case the asylum procedure is suspended.
Alternative measures to detention must be applied as much as possible. An individualised examination is foreseen by the FPG, but in practice less coercive measures are often regarded by the authorities as not sufficient to secure the return procedure or expulsion.
Article 77(3) FPG enumerates three alternatives to detention: (a) reporting obligations; (b) the obligation to take up residence in a certain place and (c) the deposit of a financial guarantee. Details about the deposit and amount of the financial guarantee are regulated by the Ordinance Implementing the Aliens Police Act (FPG-DV). This amount must be determined in each individual case and must be proportionate.[7] The law specifies a maximum of €1,717.46 for financial guarantees (2 x €858,73). The measure is not usually applied in practice, however.[8] Recent observations confirmed that this was still the case in 2020 due to a lack of financial resources.
Alternatives to detention are applied in open centres, in regular reception facilities, in facilities rented by the police or property of NGOs, as well as in private accommodations of the person to be deported. They are not applied in other facilities such as de facto detention facilities at the border in the context of the airport procedure. If an alternative to detention is ordered, asylum seekers have reporting duties. This includes presenting themselves to the police offices of the Federal Police Directorates every day or every second day. If reporting obligations or the obligation to take up residence in a certain accommodation facility are violated, the person can be detained.[9]
The duration of alternative measures is limited. Asylum seekers benefiting from an alternative to detention are not entitled to Basic Care, although necessary medical treatment(s) must always be guaranteed. These costs may be paid by the BFA, however, there is no general access to medical care insurance while in detention. Asylum seekers may receive free emergency medical treatment in hospitals.
However, in practice, alternatives to detention are very rarely used. Alternatives to detention were applied only in approximately 270 cases per year between 2016 and 2018.[10] In 2020, the use of alternatives to detention largely increased as it was applied in 677 cases a result of the Covid-19 pandemic and the fact that deportations were not conducted for several months, i.e. a deprivation of liberty would therefore be disproportional. In 2021, the application of alternatives to detentions further increased to 804 cases.[11] There is no data on how many the different alternatives were applied.[12] In 2022, in 634 cases alternatives to detention were applied, in 19 cases the persons concerned were minors.[13]
In Vienna Zinnergasse, alternatives to detention are provided for vulnerable persons, especially for families. However, families are detained 72 hours prior to their removal and other vulnerable persons (e.g. people with mental illnesses) are detained in regular detention facilities, unless a psychiatrist certifies that this is not appropriate.
[1] Article 76(2) FPG.
[2] Article 76(2a) FPG, in force as of 1 November 2017, citing Articles 2 and 28 Dublin III Regulation.
[3] Article 80(6) FPG.
[4] VwGH, Decision Ra 2013/21/0008, 2 August 2013.
[5] See e.g. VfGH, Decision B1447/10, 20 September 2011.
[6] Article 32 AsylG.
[7] Article 13 FPG-DV.
[8] EMN, The use of detention and alternatives to detention in the context of immigration policies in Austria, July 2014, available at: http://bit.ly/1Mo6zDs, 17.
[9] Article 77(4) FPG.
[10] Ministry of Interior, Parliamentary request, 9 September 2018, available in German at: https://bit.ly/2SGqZQr.
[11] Ministry of Interior, Answer to a parliamentary request, 9405/AB XXVII. GP, 28 March 2022, available in German at: https://bit.ly/3KbaS9k.
[12] Ministry of Interior, Answer to a parliamentary request, 4901/AB XXVII. GP, 12 March 2021, available in German at: https://bit.ly/2P4ioeu
[13] Ministry of Interior, answer to parliamentary request 13976/AB XXVII. GP, 28 April 2023, available in German at https://bit.ly/425y8xW.