Grounds for Detention

Austria

Author

Asylkoordination Österreich

The detention of asylum seekers is regulated in the Aliens’ Police Law (Fremdenpolizeigesetz 2005, FPG), which was amended several times with the effect that the reasons for the detention of asylum-seekers were specified and extended. The various grounds for detention are laid down in § 76 FPG. Detention is limited to those cases where it seems necessary to safeguard the examination of the applicant’s asylum claim or to undertake the Dublin transfer:

 

  1. In case there is an inadmissibility decision which can be executed, even if it is not yet in force; meaning that the Federal Agency for Immigration and Asylum has already issued an inadmissibility decision on the asylum application but logistical enforcement is still pending

  2. In case an inadmissibility procedure is being undertaken meaning in case the asylum applicant received information indicating that the Austrian authorities are consulting other Member States to verify whether another Member State is responsible under the Dublin Regulation

  3. In case a return decision, a residence prohibition or an expulsion order was issued before the asylum application was lodged

  4. In case it seems likely, based on various kinds of evidence, that an inadmissibility decision will be taken

  5. In case an inadmissibility decision was already issued or when the asylum applicant submitted a subsequent application which did not have an actual protection against deportation

  6. In case an asylum applicant who had been informed that the claim was the subject of Dublin consultations does not respect the territorial restriction (obligation to remain within the district where the asylum seeker receives reception)

  7. In case an asylum applicant registered as “homeless” violates the duty to report to the police on a regular basis (more than once) or does not report that they are registered as homeless to the police within two weeks while they are in an admissibility procedure. If an asylum-seeker is not entitled to Basic Care (for example when they submitted a subsequent asylum application or they left the designated place of residence), they have either to inform the BFA about their address or to organise a “homeless address” where letters or decisions can be delivered.

If a person is taken to a detention centre at an early stage of the procedure (a decision was not yet issued on the asylum application) it is mostly because of their behaviour in the past and their individual characteristics: such as if the asylum applicant previously absconded or is likely to do so; the asylum applicant was in several other Dublin Member States before; it concerns a subsequent asylum application; if the asylum applicant confirms their travel route to Austria or not (asylum seekers are often detained after the preliminary interview to establish identity, nationality and travel route).

Detention is almost systematic during the 24 hours preceding the transfer of an asylum applicant to the responsible Member State under the Dublin Regulation. According to a response to a parliamentary question there are cases where persons in a Dublin procedure were detained for six months.1

The reasons for the detention of asylum-seekers in 2013 were as follows:

 

Executable expulsion order

133

Initiated return procedure

142

Executable return decision prior to asylum application

78

Likely expulsion order

229

Executable return decision in  Dublin cases

116

Subsequent asylum application in Dublin cases

19

Violation of restriction of movement

14

Violation of registration duty

1

Violation of obligation to comply with the procedure

1

Subsequent asylum application

8

Unauthorised leave of initial reception centre

0

 

 

When a person is placed in detention, they must receive a written decision relating to their individual situation and circumstances and the grounds for detention. The main parts of such decision, which are the verdict of detention and the information about the right to appeal against detention, have to be in a language the asylum applicant is able to understand. In each case, the detained asylum applicant is granted a legal advisor provided by the state, either from the organization ARGE Rechtsberatung or Verein Menschenrechte Österreich, which closely co-operate with the Ministry of the Interior. While before the Alien’s Law contained an obligation to act as legal representative for detained asylum seekers if they wish so, the new amended Law which came into effect in 2014 deleted this obligation and now contains only the obligation for the legal adviser to take part in hearings if the asylum-seekers wishes his presence (§ 51 Aliens Police Law).

Under the law detention is possible if the asylum seeker left the initial reception center without having a valid reason)2 and also when one of the requirements stipulated in paragraph 76 (2) 1 to 4 is fulfilled. The Aliens Police Law does not refer to the risk of absconding, but to the fact that the asylum seeker left the initial reception center without having a valid reason, which can also be seen as a risk that the person would abscond.3 In 2013 this regulation was not applied in practice.

§ 34 (4) Act on Procedures before the Federal Agency on Asylum and Immigration (BFA) allows the apprehension of asylum seekers if they evaded the procedure or if they left the initial reception center without having a justified reason (§ 24 (4)2 Asylum Act). § 34 (2) Act on Procedures before the BFA uses the term “evading” the procedure and refers to § 24 (1) Asylum Act. § 24 (1) Asylum Act defines the situation where an asylum seeker evades the procedure: itis the case if the authorities are not informed about an asylum seeker’s place of stay or if this place is not easily identifiable. Reference is made to § 15 Asylum Act: this Article contains the obligation for asylum seekers to cooperate with the authorities and enumerates a number of duties, including the duty to inform the authorities about the place of stay.

The Administrative High Court has ruled in several decisions that will be binding for the BFA and the Federal Administrative Court (BVwG) on the risk of absconding. The criteria to determine whether detention is necessary to secure deportation and prevent absconding are the following: previous attempts to abscond; behavior of the applicant (such as not complying with the obligation to leave); previous criminal law violations; illegal entry;  illegal entry shortly after deportation; entry despite residence ban; attempts to hinder the expulsion and escape the authorities’ administrative power; having  dependent children in Austria; or having a health condition.4

 So far it is not possible to assess the practise of the authorities as the new laws have only been in force for a few months.

The Human Rights Advisory Board (Menschenrechtsbeirat) and UNHCR have criticised the detention conditions for asylum seekers and irregular migrants for being even worse than in regular prisons.5 For the time being it is not clear whether the detention conditions have improved due to the closure of several detention centres and the new facility which offers more opportunities for activities outside the cells.6  Concerning detention conditions for children, the Menschenrechtsbeirat has criticised the fact that children under 14 years are kept in detention centres with their family when their parents agree to keep the child with them rather than being separated from them.7

While unaccompanied children are separated from adults in the detention centre, they are often kept alone in their cell, which has very negative psychological consequences. However, there was a small improvement in 2010. Since then there is a special detention centre in Vienna for unaccompanied children and families, which is located in a house formerly sheltering recognized refugees. This means that in practice the whole family waits for their deportation in an apartment, without the possibility of leaving it, while previously the family was usually separated by ordering an alternative measure to detention for the mother and the children while the father was detained.

Many persons awaiting their expulsion are still being held, in some cases for months, in police detention centers, which have been regularly criticised for their poor material conditions. Regular inspections by different bodies have noted some improvements but limited access to legal counsel and very limited possibilities for leisure activities and medical treatment have remained areas of concern. Two doctors under contract of the police have been found guilty of insufficient medical treatment of a detained Chechen, who died from cardiac infarction in 2012 although he had asked for medical help about 60 times.8

Figures on the duration of detention of asylum seekers are not available. As asylum seekers whose applications are processed under the Dublin procedure are often detained immediately after submitting their applications, they may be kept in detention for months until they are transferred to the Member State determined to be responsible for the examination of their asylum applications. In other Dublin cases detention may last for some weeks, as suspensive effect of the appeal is hardly ever granted and the transfer can be effected while their appeal is still pending.

The Aliens Police Act (§ 77) enumerates three alternatives to detention: reporting obligations, the obligation to take up residence in a certain place of accommodation and the deposit of a financial guarantee. Details about the deposit and amount of the financial guarantee are regulated by an Ordinance Implementing the Aliens Police Act.9 This amount (§ 13) has to be decided in each individual case and has to be proportionate. The law specifies a maximum of 2 x € 858,73 (= € 1.717,46). The measure is not applied in practice.

Alternatives to detention are open centres. Such measures are executed in regular reception facilities, facilities rented by the police or houses of NGOs, or the private flat of the person to be deported. If an alternative to detention is ordered, asylum seekers have reporting duties. They have to present themselves at 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 is detained. § 77 (3) Aliens Police Act contains the obligation to detain persons who do not fulfill the requirements stipulated the provision on  alternatives to detention.

The duration of alternative measures is limited. Two days in the alternative measure count as one day of detention. the counts only half. Asylum seekers benefiting from an alternative to detention are not entitled to Basic Care. Necessary medical treatment must in any case be guaranteed. These costs may be paid by the BFA. Asylum seekers may also receive free emergency medical treatment in hospitals.

With regard to children in detention, the Austrian Human Rights Advisory Board, in its report on children in the Austrian Aliens’ law, quotes the Human Rights Commissioner Hammarberg explaining that “the use of detention for minors should be kept to the absolute minimum in accordance with the provisions of the UN Convention on the Rights of the Child. [...] While the detention of children for a matter of hours or days prior to a certain expulsion might exceptionally fall within the permissible scope of these provisions, anything much longer would be of serious concern [...]”. Figures on detention of children in the year 2010 show that the number of children between 16 and 17 years of age in detention was double the number of children subjected to alternatives to detention, demonstrating that alternative measures to detention are in practice not applied. This is thus not in line with the principles of the UN Convention on the Rights of the Child.10

Figures relating to alternatives to detention of asylum seekers are not available. While in 2011 alternatives to detention were applied in 13% of all cases (all foreigners), the percentage increased to 17% in 2012 and diminished to 15% in 2013.

 

Year

Detained foreigners

Alternatives to detention

2010

6.153

1403

2011

6.657

1012

2012

4.561

924

2013

4.171

741

 

Detention has to be proportionate to its aim. Alternative measures (so called less coercive measures) have to be applied in all cases (not only if a particular ground for detention exists) if the authorities have good reasons to believe that the object and purpose of detention (i.e. deportation) could be reached by the application of such measures. An individualized examination is provided for in the legal basis, but in practice  less coercive measures are often regarded as not sufficient measure to secure the return procedure/expulsion.

According to § 76 Aliens Police Act, the principle of necessity is to be taken into account. Detention has to be necessary to reach one of the aims, e.g. securing a procedure or the execution of a deportation order. The principle of proportionality is not explicitly mentioned in the provisions regulating the reasons for detention and detention orders in the Aliens Police Act. It is however mentioned that the BFA has to review the proportionality of detention every four weeks. Proportionality is also a Constitutional Principle applicable to all administrative procedures and therefore also to Aliens’ Law proceedings. This is confirmed by the jurisprudence of the Administrative Court11 and the Constitutional Court.12 Proportionality means to weigh or balance the interests between the public interest of securing the procedure (mainly expulsion procedure) and the right to liberty of the individual.

  • 1. Parliamentarian request NR 10892/AB (XXIV.GP) from 16 May 2012, available at: www.parlament.gv.at/PAKT/VHG/XXIV/J/J_11024/fnameorig_248259.html.
  • 2. Aliens Police Law § 76 (2a) 6 and (§ 24 (4) Asylum Act.
  • 3. § 76 (2a).
  • 4. See VwGH 2007/21/0246 from 28.05.2008, 2011/21/0247 from 18.04.2013, 2007/21/006 from 19.6.2008.
  • 5. Menschenrechtsbeirat beim Bundesministerium für Inneres: Bericht des Menschenrechtsbeirates über seine Tätigkeit im Jahr 2011, S. 57 (Human Rights Board with the Federal Ministry of Interior, Report of the Human Rights Board on its activities in 2011, p. 57); Menschenrechtsbeirat beim Bundesministerium für Inneres: Haftbedingungen in Anhalteräumen der Sicherheitsbehörden (Human Rights Board with the Federal Ministry of Interior, Detention conditions in back rooms of security services), October 2009.
  • 6. Der Standard, 14.1.2014: Im Wartezimmer Vater Staats, (In the waiting room of father state) http://derstandard.at/1388650234480/Im-Wartezimmer-Vater-Staats?_slide=1
  • 7. Bericht des Menschenrechtsbeirates zu Kindern und Jugendlichen im fremdenrechtlichen Verfahren (Report of the Human Rights Board on Children and Adolescents in alien’s law procedures), 2011, P VII.
  • 8. Die Presse 17.03.2014: Tod in Schubhaft: Zwei Amtsärzte verurteilt, (Death in detention: two doctors convicted), available at: http://kurier.at/chronik/wien/tod-in-der-schubhaft-zwei-amtsaerzte-verur....
  • 9. Verordnung der Bundesministerin für Inneres zur Durchführung des Fremdenpolizeigesetzes 2005 (Fremdenpolizeigesetz-Durchführungsverordnung – FPG-DV).
  • 10. Bericht des Menschenrechtsbeirates zu Kindern und Jugendlichen im fremdenrechtlichen Verfahren (Report of the Human Rights Board on Children and Adolescents in alien’s law procedures), 2011, p 40 showed that in 2010 18 children aged 14-16 years were detained; 154 children between 16 and 18 years of age were detained; in 2010 365 between the age of 14 and 16 were subjected to alternatives to detention and 84 between the ages of 16 and 18 years of age.
  • 11. Administrative Court VwGH, 2013/21/0008, 2.08.2013 https://www.ris.bka.gv.at/Dokumente/Vwgh/JWT_2013210008_20130802X00/JWT_...
  • 12. See e.g. Constitutional Court, VfGH B1447/10 10, 20.9.2011: „Wie der Verfassungsgerichtshof nämlich … klargestellt hat, sind die Behörden unter Bedachtnahme auf das verfassungsrechtliche Gebot der Verhältnismäßigkeit (proportionality) verpflichtet, im Einzelfall die verfassungsrechtlich gebotene Abwägung zwischen dem öffentlichen Interesse an der Sicherung des Verfahrens und der Schonung der persönlichen Freiheit des Betroffenen vorzunehmen.“ https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_09889080_10B01447_2_00/JFT_...

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