Grounds for Detention

Austria

Author

Asylkoordination Österreich

Practice concerning the detention of asylum applicants varies a lot in the different regions. The detention of asylum seekers is regulated in the Aliens’ Police Law (Fremdenpolizeigesetz 2005 (FPG), which was also amended several times since it entered into force. 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 Asylum Agency 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 conditions)
  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 admission 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 Asylum Agency 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 and 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

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-operates with the Ministry of the Interior. While the Alien’s Law contains an obligation to act as legal representative for detained asylum seekers if they which so, the amended Law, which will come into effect in 2014, does not contain such an obligation.

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 prisons.2 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 in the detention centre rather than being separated from them.3

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 woman 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 information on legal remedy and very limited possibilities for leisure activities and medical treatment have remained areas of concern.

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.

Alternatives to detention are open centres. Such measures are ordered 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 by the police, asylum seekers have reporting duties. They have to present themselves at the police every day or every second day. In regard of the time limits set for detention the alternative measure counts only half. During an alternative to detention measure asylum seekers are not entitled to Basic Care. Necessary medical treatment must in any case be guaranteed. These costs may be paid by the police. Asylum seekers may also receive free emercency medical treatment in hospitals.

With regard to children in detention, the Human Rights Board quotes in its report on children in the Austrian aliens’ law, 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, with the relation 2:1 among children between 16 and 17 years of age, who find themselves being detained, demonstrating that alternative measures to detention are not applied. This is thus not in line with the principles of the Convention of the Child.4

Figures relating to alternatives to detention of asylum seekers are not available. While in 2011 in 13% of cases alternatives to detention were applied, the percentage increased in 2012 to 17% and to 19% during the first 10 months of 2013.

 

Year

Detained foreigners

Alternatives to detention

2010

6.153

1403

2011

6.657

1012

2012

4.561

924

2013 (January – October)

3.788

721

  • 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. 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.
  • 3. 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.
  • 4. 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.

About AIDA

The Asylum Information Database (AIDA) is a project of the European Council on Refugees and Exiles (ECRE), in partnership with Forum Refugiés-Cosi, the Hungarian Helsinki Committee and the Irish Refugee Coun