Asylum seekers who register at the police are detained for up to 48 hours, without a detention order. This kind of detention is regarded as apprehension.
The detention of asylum seekers is regulated by the Aliens Police Act (FPG), which has been amended several times to specify the grounds for detention; the last amendment entered into force on 20 July 2015. Detention may be ordered by the BFA to secure a return procedure, if a return procedure or deportation have to be secured in regard of an application for international protection and a “risk of absconding” exists and detention is proportional. Furthermore, the FPG allows detention according to the Dublin III Regulation.
The amended Article 76 FPG now defines the “risk of absconding” on the basis of a number of wide-ranging criteria, namely whether:1
- The person has avoided or hampered a deportation order;
- The person has violated a travel ban;
- An expulsion order is made or the asylum application has been withdrawn;
- The person is in pre-deportation detention at the time he or she lodges the application;
- It is likely that another country is responsible under the Dublin Regulation, namely as the person has lodged multiple applications or based on past behaviour intends to travel on to another country;
- The person does not comply with alternatives to detention;
- The person does not comply with cooperation or reporting duties; and
- There is a sufficient link with Austria such as family relations, sufficient resources or secured residence.
The FPG does not refer to a “serious” risk of absconding in line with Article 28(2) of the Dublin III Regulation. However, beyond the wide-ranging scope of the criteria listed above, the factors in Article 76(3) FPG are non-exhaustive, thereby leaving undue discretion to the authorities with regard to identifying a “risk of absconding” and applying detention.
The Constitutional Court (VfGH) ruled on this issue in June 2016.2 The VfGH did not share the constitutional concerns raised by the BVwG as to whether the “risk of absconding” defined in the Dublin III Regulation was adequately implemented in Austria. The provision of Article 76(2) FPG must be interpreted as complying with the Constitution in such a way that it allows the imposition of the detention order only if it is “necessary” to secure the proceedings, in particular because the person is suspected of escaping the proceedings. In view of the existence of a legal basis for the contested regulations, it is irrelevant to the legality of the regulation whether the Federal Minister of the Interior intended also to use the provisions of Article 2(n) of the Dublin III Regulation.
So far, it is difficult to assess the practice of the authorities with regard to the use of detention grounds, as detention was not ordered very often in 2016. In the detention centre in Vordernberg, only few persons have been detained although there is capacity for 220 persons, although there has been an increase in detentions at the end of 2016.
Detention is almost systematic during the 24 hours preceding the transfer of an asylum applicant to the responsible Member State under the Dublin Regulation.