Austria: The Austrian refugee protection system; whether refugee protection is granted on a permanent or temporary basis; conditions under which an asylum claimant holding temporary residency status might be deported; whether an asylum claimant can return to Austria after having left it; specific experience of Iraqi asylum seekers in Austria
|Publisher||Immigration and Refugee Board of Canada|
|Publication Date||25 January 2011|
|Citation / Document Symbol||AUT103656.E|
|Related Document||Autriche : information sur le système d'octroi de l'asile; information indiquant si l'asile est accordé de façon temporaire ou permanente; information sur les conditions qui entraînent l'expulsion d'un demandeur d'asile ayant le statut de résident temporaire; information indiquant si un demandeur d'asile peut retourner au pays après en être parti; information sur des expériences précises vécues par des demandeurs d'asile iraquiens|
|Cite as||Immigration and Refugee Board of Canada, Austria: The Austrian refugee protection system; whether refugee protection is granted on a permanent or temporary basis; conditions under which an asylum claimant holding temporary residency status might be deported; whether an asylum claimant can return to Austria after having left it; specific experience of Iraqi asylum seekers in Austria, 25 January 2011, AUT103656.E, available at: http://www.refworld.org/docid/50b867052.html [accessed 10 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Refugee Protection System
Austria has a two-step system in granting asylum to refugees; if the claimant is not granted permanent protection (asylum) in the first instance, he or she can appeal the decision with an independent asylum court (Austria 8 Nov. 2010, para. 71; Caritas Austria 17 Jan. 2011; US 11 Mar. 2010, Sec. 2d).
However, a legal counsel with the Department of Refugee and Migration Affairs of Caritas Austria, a faith-based organization that provides support to migrants in Austria, stated, through correspondence with the Research Directorate, that asylum seekers "wait for years" to have their cases heard by the asylum court (Caritas Austria 17 Jan. 2011). This information is corroborated in the United States (US) Department of State's Country Reports on Human Rights Practices for 2009, which states that, in 2007, 11,000 asylum seekers waited more than 3 years for a final decision and that, of these asylum seekers, 200 waited longer than 10 years for a final decision (US 11 Mar. 2010, Sec. 2d). Freedom House also reports, without providing details, that some asylum seekers can be deported while their appeals are pending (2010). This information could not be corroborated among the sources consulted by the Research Directorate.
Permanent Refugee and Subsidiary Protection Status
Officials from Austria's interior ministry and the Office of the United Nations (UN) High Commissioner for Refugees (UNHCR) in Austria indicate that Austria grants asylum to refugees on a permanent basis (Austria 13 Jan. 2011; UN 10 Jan. 2011a; ibid. 10 Jan. 2011b). Accordingly, 3,247 applicants were granted refugee status in 2009 (Austria 8 Nov. 2010, para. 68).
In addition to refugee protection, Austria grants "subsidiary protection" on a temporary basis (Caritas Austria 17 Jan. 2011; UN 21 Jan. 2011). Both the Austrian official and the European Council on Refugees and Exiles (ECRE) specify that, under the terms of the European Convention on Human Rights and related protocols, subsidiary protection shall be granted to those who face a serious threat to their life or their person because of international or internal conflict (Austria 13 Jan. 2011; ECRE July 2009, 14). The Austrian official also explained that an asylum seeker's claim for protection always includes asylum and subsidiary protection; a claim for subsidiary protection is assessed and may be granted if the claim for asylum is rejected (Austria 14 Jan. 2011).
Individuals granted subsidiary protection are given a one-year residency permit, which is assessed for renewal annually (ibid.; Austria 13 Jan. 2011; UN 21 Jan. 2011). During that time, notes the ECRE, subsidiary protection grants the individual a number of rights, including the right to access employment, housing, public education, social security, health care, vocational training, and the right to freedom of movement within Austria (ibid., 15). In addition, those with subsidiary protection, like others, are able to apply for Austrian citizenship after 10 years of residency (ibid.).
Deportation and Withdrawal of Right to Residence and Subsidiary Protection
In correspondence with the Research Directorate, the Austrian interior ministry official stated that refugee status can only be revoked under "very specific circumstances," such as being convicted of a serious crime or one of the other reasons outlined in the Geneva Convention (Austria 13 Jan. 2011). An asylum seeker is also granted protection against deportation for the duration of a claim for international protection (ibid. 14 Jan. 2011). However, as with refugee status, this protection is revocable under "very restricted conditions" (ibid.).
The Austrian official further explained that, with a few exceptions, the applicant is entitled to reside in Austria until there is a final decision made on the claim (ibid.). The reasons for exempting the individual from the right of residence include whether the claim is discontinued, deemed "no longer relevant" for reasons specified in the Asylum Act, or withdrawn because of provisions in the Aliens' Police Act (ibid.). Article 13 of the 2005 Asylum Law, as provided by an official of the UNHCR in Austria in correspondence with the Research Directorate, corroborates the official:
An asylum seeker whose asylum procedure is admitted shall be entitled to reside in the federal territory until an enforceable ruling is issued or until the procedure is discontinued or deemed no longer relevant or until right of residence is withdrawn (Article 62(1) of the Aliens Police Act (FPG)). Any right of residence existing on the basis of other federal laws shall be unaffected. If asylum seekers' right of residence is withdrawn pursuant to Article 62 of the FPG, they shall be accorded de facto protection against deportation (Article 12). (UN 10 Jan. 2011b)
The conditions under which subsidiary protection can be withdrawn are outlined by the ECRE, which cites Section 4 of Austria's 2005 Asylum Act:
- the conditions required for the granting of subsidiary protection status do not or no longer exist;
- the alien has the centre of his vital interests in another country; or
- the alien has obtained the nationality of another State and his rejection at the border, forcible return or deportation to his new country of origin would not constitute a real risk of violation of art. 2 or art. 3 of the European Convention on Human Rights or of Protocol No. 6 or Protocol No. 13 to the Convention or would not represent for the alien as a civilian a serious threat to his life or person as a result of arbitrary violence in connection with an international or internal conflict. (ECRE July 2009, 14)
Treatment of Asylum Seekers Awaiting a Decision
Austrian state authorities, in a submission to the UN discussing, among other things, Austria's asylum and migration practices, indicate that asylum seekers are guaranteed basic care and services, such as food, housing, health care, school supplies, and clothing (Austria 8 Nov. 2010). Nevertheless, the German online media source Deutsche Welle states that most asylum applicants "struggle to survive during the long bureaucratic process of applying for asylum" (28 July 2010). Deutsche Welle adds that, although asylum seekers receive some assistance with basic necessities, such as food and shelter, and a monthly allowance of 40 euros [53.77 CAD (XE.com 21 Jan. 2011)], they are not allowed to work (ibid.). However, several organizations clarify that asylum seekers are permitted to work if they have a work permit, but that, in practice, these permits are difficult to obtain (ASAP n.d., 13; ECRE July 2009, 18; ERSO n.d.).
Both Amnesty International (AI) and the UN have noted that Austria has a policy of placing some asylum seekers in detention (AI 12 July 2010, 7; UN 20 May 2010, para. 16). AI states that amendments made to Austria's 2005 Aliens Law in 2010 have increased the number of cases in which state authorities can detain asylum seekers, and claims that the practice violates the rights of asylum seekers to personal liberty, privacy and family life (AI 12 July 2010, 7). AI also expressed concern that, because the Austrian government terminated the contracts of independent NGOs providing legal assistance to refugee claimants, asylum seekers may not be able to effectively challenge decisions for protection, detention or deportation (ibid.). The UN Committee Against Torture also expressed alarm that some asylum seekers in Austria are held with criminal and administrative offenders, confined to their cells for 23 hours a day, and not given adequate medical or legal assistance (UN 20 May 2010, para. 16). Similarly, Freedom House reports that the UNHCR has criticized Austrian authorities for failing to provide a sufficient number of legal advisers and interpreters for detainees (2010).
Right of Return to Austria
Information on whether an asylum claimant who left Austria is able to return was scarce among the sources consulted by the Research Directorate. In a telephone interview with the Research Directorate, a protection associate with the UNHCR in Austria stated that an asylum seeker's provisional right of residence does not entitle him or her to re-enter Austria (UN 10 Jan. 2011a; ibid. 21 Jan. 2011). She indicated that if the asylum seeker left Austria, his or her case would either be discontinued or decided in absentia (UN 10 Jan. 2011a).
For her part, the legal consul for Caritas Austria stated that the asylum seeker can return if the case is still pending and had not been discontinued by the authorities (Caritas Austria 17 Jan. 2011). She expressed the opinion that, if the case was discontinued, a claimant with immediate family members with temporary residency status in Austria could seek family-reunification through an Austrian embassy (ibid.). However, the Austrian official indicated that the asylum claimant could only apply for a re-entry permit if his core family members had either been granted asylum or their subsidiary protection status had been renewed at least once (Austria 14 Jan. 2011). Similarly, the UNHCR protection officer stated that, as per the Asylum Law, family reunification is limited to relatives of "protection status holders" (UN 21 Jan. 2011).
Iraqi Asylum Seekers in Austria
Statistics indicate that of the 399 Iraqi claims made in 2009, 53 percent were positive, 21 percent were negative, and 26 percent were classified as other (Austria 2010, 5). Sources indicate that, compared to asylum seekers from other countries, Iraqi claimants had one of the highest approval ratings in Austria (ibid.; US 11 Mar. 2010, Sec. 2d). However, the legal counsel for Caritas Austria noted that second-instance appeals for permanent refugee protection by Iraqi asylum claimants are not being heard at the asylum court because of the uncertainty in Iraq (Caritas Austria 17 Jan. 2011). She stated that there are hundreds of Iraqi asylum seekers with subsidiary or temporary status in Austria who have been waiting for a final decision (ibid.). As of December 2010, only one Iraqi claimant was granted asylum on appeal by the asylum court, while 733 Iraqi cases were pending (ibid.). The Austrian official stated that not all Iraqi asylum seekers are granted subsidiary protection in Austria (Austria 14 Jan. 2011).
As for being returned to Iraq, the UNHCR protection associate stated that, like any other alien, an Iraqi could "be returned if he receives an enforceable negative decision in his asylum procedure" (UN 21 Jan. 2011). In other words, if his request for "the recognition of refugee status and subsidiary protection is rejected and an expulsion order issued," he could be returned (ibid.). However, the U.S. Committee for Refugees and Immigrants (USCRI) reports that European countries generally adhered to the UNHCR's recommendations to not return failed Iraqi asylum seekers to southern and central parts of Iraq and to only return Kurds to Kurdish areas in northern Iraq if they had family members there (USCRI 2008). Statistics on the number of Iraqis forcibly returned from Austria could not be found among the sources consulted by the Research Directorate.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Amnesty International (AI). 12 July 2010. "Austria. Submission to the UN Universal Periodic Review. Tenth Session of the UPR Working Group of the Human Rights Council." (EUR 13/002/2010)
Asylum Seekers Active Partnership (ASAP). N.d. Guidelines to the Asylum Procedure in Austria, Finland, Italy, Lithuania, Poland, and the UK (Scotland). (Polish Humanitarian Organisation [PLO])
Austria. 14 January 2011. Correspondence with an official at the Bundesasylamt, Bundesministerium für Inneres (BMI).
_____. 13 January 2011. Correspondence with an official at the Bundesasylamt, Bundesministerium für Inneres (BMI).
_____. 8 November 2010. National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council: Austria. (A/HRC/WG.6/10/AUT/1)
_____. 2010. Bundesministerium für Inneres (BMI). Asylstatistik.
Caritas Austria. 17 January 2011. Correspondence with a legal counsel.
Deutsche Welle. 28 July 2010. "Austria Gets Tough on Asylum Seekers Abusing Benefits."
European Council on Refugees and Exiles (ECRE). July 2009. Complementary Protection in Europe.
European Reintegration Support Organisations (ERSO). N.d. "National Asylum and Return Policy of Austria."
Freedom House. 2010. "Austria." Freedom in the World.
United Nations (UN). 21 January 2011. Office of the UN High Commissioner for Refugees (UNHCR) in Austria. Correspondence with a protection associate.
_____. 10 January 2011a. Office of the UN High Commissioner for Refugees (UNHCR) in Austria. Telephone interview with a protection associate.
_____. 10 January 2011b. Office of the UN High Commissioner for Refugees (UNHCR) in Austria. Correspondence with a protection associate.
_____. 20 May 2010. Committee Against Torture. Consideration of Reports Submitted by States Parties Under Article 19 of the Convention. Concluding Observations of the Committee Against Torture. Austria. (CAT/C/AUT/CO/4-5)
United States (US). 11 March 2010. Department of State. "Austria." Country Reports on Human Rights Practices for 2009.
U.S. Committee for Refugees and Immigrants (USCRI). 2008. "Europe." World Refugee Survey 2008.
XE.com. 21 January 2011. "Universal Currency Converter Results."
Additional Sources Consulted
Internet sites, including: European Country of Origin Information Network (ecoi.net), Factiva, International Organization for Migration (IOM), United Nations Refworld.