Portrait Mädchen mit Migrationshintergrund

What are refugees (Flüchtlinge) and what are persons who qualify for asylum (Asylberechtigte)?

Refugees are people who had to leave their homes because their lives were in danger. The Geneva Convention on Refugees makes it compulsory for the countries that have signed this international treaty (almost 150, among them all EU member states and thus also Austria) to recognize people as refugees who, due to justified fear of persecution for ethnic, religious or political reasons, or due to their nationality or because they belong to a certain social group, have had to flee their country.

If, during the course of asylum proceedings (see "What is the procedure for asylum proceedings?") it is determined that such reasons exist, asylum must be granted; then the terms "persons who qualify for asylum", or "asylum seekers" (Asylberechtigten) or "refugees" (Flüchtlingen) are used.

What are migrants?

People are often considered migrants, who, as opposed to refugees, were not in danger of being persecuted in their home countries and who left their homeland voluntarily, such as for the purpose of work or education or other personal reasons. There is a difference in decision-making regarding refugees and migrants: for migrants Austria can largely make decisions autonomously, as to which and how many migrants it decides to accept.

How can refugees get to Europe?

It is not possible to apply for asylum from abroad, one must apply in Austria. For refugees it is virtually impossible to enter Austria legally with a visa issued by an Austrian embassy abroad. Therefore, refugees have to organize their trip to Europe themselves and are forced to cross the border into Europe or Austria "illegally". This trip is very dangerous and expensive, and most of the refugees have to rely on the support of human traffickers in order to be smuggled over the borders, which are difficult to cross.

The Geneva Convention prohibits punishing refugees for crossing borders illegally.

What are people who apply for asylum or asylum seekers?

People applying for asylum or asylum seekers are people who have applied for asylum - protection from persecution - in another country and whose asylum proceedings have not yet been completed. The German term "AsylantInnen" has a negative meaning and therefore it should not be used.

How can a person apply for asylum?

To apply for asylum, or to be completely correct, to apply for international protection (= application for the granting of asylum or alternatively subsidiary protection, see "What is subsidiary protection?"), a person has to explain to a police officer that she/he needs Austria's protection.

What is the procedure for asylum proceedings?

If someone has applied for asylum the police takes down the personal data, takes a photo, takes fingerprints and conducts a first brief interview.

Then the Federal Office for Refugees / the Bundesamt für Fremdenwesen und Asyl (BFA) decides where to take the asylum seeker for food and accommodations within the basic care program/ Grundversorgung provided by the government (see "How are asylum seekers provided for?").

In the first part of the asylum proceedings ("approval procedure"/ "Zulassungsverfahren") after at least one interview has taken place, the BFA decides whether the Austrian authorities must examine the applicant's reasons for fleeing the country of origin or whether, according to the Dublin III Regulation (see "What is the Dublin III Regulation?") another EU country (plus Norway, Iceland or Switzerland) is responsible for carrying out the asylum procedure. According to the law, in the approval procedure asylum seekers are (currently) entitled to legal consultation through the organizations "Menschenrechte Österreich" or "ARGE Rechtsberatung" (Diakonie and Volkshilfe Upper Austria). If, according to the Dublin Regulation, another country is responsible, the BFA issues a respective written decision (a ruling), against which the asylum seeker has one week to lodge a complaint (supported by "Verein Menschenrechte Österreich" or "ARGE Rechtsberatung").

If Austria carries out the asylum proceedings, BFA must examine the applicant's reasons for fleeing his/her country of origin through interviews and investigations, and then decide whether the asylum seeker should be granted protective status or a residence permit for Austria. The asylum seeker (generally) has two weeks to lodge a complaint against this decision. "Verein Menschenrechte Österreich" or "ARGE Rechtsberatung" must support the asylum seeker in lodging the complaint or in the complaint proceedings.

The Federal Administrative Court/ Bundesverwaltungsgericht decides about complaints against decisions of the BFA.

How are asylum seekers provided for?

Asylum seekers in need are entitled to basic care. The basic care program comprises health insurance, food, pocket money, money for clothing and accommodations in suitable facilities. The accommodations can be either in organized facilities with food, organized facilities with self-catering or in private rooms (e.g. rented apartments). While the federal authorities are responsible for basic care during the first part of asylum proceedings (see "What is the procedure for asylum proceedings?"), the provincial authorities are responsible for the second part. Here special needs must be taken into consideration, such as people with mental problems, victims of violence or minors.

What rights and obligations do asylum seekers have?

Some rights: Asylum seekers are entitled to proceedings according to the respective legal standards, in which the reasons for which they need protection in Austria are noted and examined, and if appropriate the respective protection status is granted. Like everyone else, asylum seekers have the right to respect for the principal of non-refoulement (see "What is the Non-Refoulement Principle?"). They have the right to basic care (see "How are asylum seekers provided for?") and to legal consultation.

Some obligations: Asylum seekers must cooperate in the asylum proceedings, in other words to appear at all the meetings set down by the Austrian authorities, to tell the truth about all the reasons why they cannot return to their country of origin (or another country) or why they should remain in Austria (see "What is right of residence?"), and if possible to prove them. If someone wants to apply for asylum in Austria, she/he should do this as quickly as possible after entering Austria, otherwise there could be negative consequences. Asylum seekers must immediately inform the BFA or the Federal Administrative Court about a change in their residence and always be available.

What is subsidiary protection?

If, during the asylum proceedings, the authorities come to the conclusion that there are no reasons for granting asylum (see "What are refugees or what are persons who qualify for asylum?"), subsidiary protection must be granted if there is a threat of violation of the ban against torture or the prohibition of inhuman or degrading punishment or treatment or the right to life (according to Article 2 and 3 of the European Human Rights Convention) or a serious danger to body and life in conflict situations (e.g. in civil war). As opposed to asylum status, subsidiary protection is granted for a limited term; first for one year and after the first extension for two years. Before this time expires the application for extension must be submitted to the BFA.

What is the Non-Refoulement Principle?

This international principle prohibits the deportation of persons to countries in which inhuman treatment or torture threatens, and forbids refugees to be sent back to countries where they risk persecution.

What is "right of residence"/ Bleiberecht?

"Right of residence" is understood as a residence permit, which is issued due to an otherwise threatening violation of the Right to respect for private and family life (Article 8 of the European Human Rights Convention). Specifically this concerns the so-called "Resident permit due to exceptional circumstances" according to asylum law, which, for example, can be issued to persons or families who have been in Austria for some time and are well-integrated in Austria.

May asylum seekers work?

During the asylum proceedings asylum seekers may only do very limited work, and during the first three months may not work at all. They need a work permit for gainful employment, which in practice is usually only issued for seasonal work in agriculture and tourism and only when no other Austrian or non-Austrian with a work permit is available for the job in question.

Apart from that, activities for the benefit of the public, such as service duties for minor wages for federal, provincial or community authorities are possible.

May asylum seekers have their families join them?

In principle, only after asylum (immediately) or subsidiary protection (after the first extension) has been granted is family reunion possible according to asylum law. Essentially, only minor children or the parents of minor children and wives can join the asylum seeker under certain circumstances.

During ongoing asylum proceedings and if certain family members have applied for asylum in different EU member states (plus Norway, Iceland and Switzerland), according to the Dublin III Regulation ("What is the Dublin III Regulation?") there is a theoretical possibility that asylum proceedings of the family members can be carried out in the same country.

What is the Dublin III Regulation?

The Dublin III Regulation is an EU regulation, according to which asylum proceedings must be carried out in the EU member country (plus Norway, Iceland and Switzerland) in which the asylum seeker entered the EU for the first time (or - if this concerns unaccompanied minor asylum seekers - in which asylum was applied for, see "What are unaccompanied minor asylum seekers?").

What are safe third countries and what are safe countries of origin?

One speaks of safe third countries when asylum seekers can find protection from persecution in a country other than Austria (and the EU member countries plus Norway, Iceland and Switzerland; the Dublin Regulation applies here). In other words, in this country they are not threatened by grave human rights violations and they can undergo proceedings to determine refugee status, or proceedings of this nature have already been concluded. In this case Austria can make a negative decision about the application for asylum and the person concerned can be sent back to this third country. Whether or not a country is a safe third country must be assessed individually with regard to the individual asylum seeker.

Safe countries of origin are all EU member countries, plus Australia, Iceland, Canada, Liechtenstein, New Zealand, Norway, Switzerland, Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia. This list can be legally extended. If an asylum seeker is a citizen of one of these countries, the BFA can decide that he/she has no protection from deportation in case of a negative decision. In other words, deportation would be possible while he/she waits for a decision by the Federal Administrative Court (see "What is the procedure for asylum proceedings?"). In this case the asylum seeker also loses the right to basic care (see "How are asylum seekers provided for?"). Medical care and a dignified standard of life must still be guaranteed.

What are unaccompanied minor asylum seekers?

According to the UN Children's Rights Convention, all children who are under 18 years of age who flee to Austria without parents or other family members and who apply for asylum are considered unaccompanied minor asylum seekers. In 2014 approximately 2,260 unaccompanied minors applied for asylum in Austria. Unaccompanied minor asylum seekers have the right to special assistance within the scope of the basic care program. In the first part of asylum proceedings they usually have accommodations in Traiskirchen (or other federal care facilities) and (currently) are legally represented by the legal consultants of "Verein Menschenrechte Österreich" or "ARGE Rechtsberatung" in their asylum proceedings. In the second part of their asylum proceedings and after being assigned to the basic care program of a federal province, they are usually accommodated in special facilities for unaccompanied minors who are seeking asylum. Here they are taken care of and legally represented by the child and youth welfare services of the town in which they are accommodated.