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AUSTRIA: Questionnaire for Country Assessment
a) Please describe relevant law, policy and practice in your country.
The Aliens Act establishes in Article 61 the reasons for imposing a pre-deportation detention on aliens:
1. to ensure, in case of a residence ban or expulsion imposed but not yet enforceable, that the objective of the measure is achieved. This applies even to aliens with valid residence title, but only if it is assumed that they would otherwise try to evade the procedure
2. to ensure that a deportation, forcible return, and a transit (of readmitted persons) is effected
During the last years Austrian NGOs and UNHCR have consistently criticized that pre-deportation detention is imposed on minors and have urged the authorities to look for other solutions. This constant pressure has lead to the incorporation of new provisions in the 1997 Aliens Act that allow to dispense with detention especially in case of children and young people.
Article 66. (1) The authority may refrain from imposing an order for detention pending deportation if it has reason to assume that its objective can be achieved by the use of measures of a more lenient nature. The authority shall be required to use more lenient measures in the case of persons under full age, unless it has reason to assume that the objective of an order for detention pending deportation cannot thereby be achieved.
This provision offers great scope for discretion and is very seldom used in practice. Even isolated signs are reason enough for the authorities to assume that a separated child would try to evade the procedure. This is the reason why Art. 66 has been applied only a few times since it came into force.
During the last years the number of orders for pre-deportation detention against minor refugees has been increasing. According to the Ministry of the Interior 773 minors were the object of such detention orders in 1998 alone.
Of the aliens put into such a detention during the first quarter 1999, 162 were between 18 and 19 years old, 62 between 16 and 18, and 19 between 14 and 16 years (Ministry of the Interior, answer to a parliamentary inquiry 6007/AB XX.GP).
b) To what extent does this conform to the Statement? Please outline in brief.
The facts presented above clearly indicate that the Austrian practice does not conform to the Statement. In Austria, minors are routinely detained on grounds related to their residence status.
c) Are any changes needed? In relation to any first principle of SGP?
The detention of minor refugees including measures of more lenient nature should be generally prohibited. Detention is a kind of accommodation that is in no way age appropriate or suitable for children and a contravention of the Convention on the Rights of the Child. Instead, children and youth should be accommodated in facilities of the competent youth welfare agencies.
7. Right to Participate (SGP:C7)
a) Please describe relevant law, policy and practice in your country.
Art. 25 (2) Asylum Act establishes that minors starting with the age of 14 are entitled to apply for asylum.
(2) Minors of age [ i.e. 14 to 19 years; note of the translator] whose interests cannot be defended by their legal representatives shall be entitled to file applications. Upon the initiation of a procedure, the legal representative shall be the locally competent youth welfare agency. As soon as a legal representative has to intervene on behalf of such juveniles in accordance with article 95, paragraph (3), of the Aliens Act, he shall also be their representative for the purposes of the present federal law.
In asylum procedures refugees have to be interviewed personally. Art. 27 establishes their obligation to co-operate.
Art. 27 (1) Asylum-seekers shall be personally interviewed by the senior official of the Federal Asylum Agency who is responsible to take the decision provided that the holding of such interviews is possible without disproportionate expense. An interview may be dispensed with if and to the extent that the asylum seekers are not in a position to assist in establishing the material facts through the giving of testimony.
(2) Asylum seekers shall be obliged to supply the information necessary for the establishment of the material facts and to present any material evidence in their possession, including identity documents. If there is reason to assume that evidence or identity documents are not presented by asylum seekers in the course of their interview despite their attention being drawn to that obligation, the interviewer shall be authorized to order an immediate search of the asylum seekers‘ clothes and of the receptacles brought with them. The search shall be carried out by an agent of the public security service or by an employee otherwise authorized to exercise official powers of command and constraint, who shall be of the same sex.
There is no legal right to participate in lodging of appeals in the asylum procedure and in other areas. In individual cases this has lead to serious disadvantages for separated children. The municipal authorities of Eisenstadt (Stadt) as legal representative of separated children are generally disinterested in lodging appeals against negative asylum decisions – this to the extent that even if expressly wished by the minor asylum seeker the appeal is not forwarded.
In one case the major brother of a minor asylum seeker lodged an appeal in due time against a decision by which his brothers‘ asylum application had been rejected as inadmissible pursuant to Art. 4 Asylum Act. Then the Independent Federal Asylum Senate asked the Youth Office in Eisenstadt whether they as legal representative agree to the appeal against the decision of the first instance. Yet the Youth Office as competent authority declared that they did not want to appeal against the first instance decision. Therefore the negative decision became legally binding.
Other Youth Offices do not always sign appeals wished by young people even if they were written by refugee advisers. A letter to a refugee adviser reads as follows:
"This is to inform you that the district authorities will not sign the attached appeal referring to B. because we believe that the juvenile is better off at home with his family than here in Austria."
Thereby the authorities take it upon them to act against the express wishes of the applicant. Under such circumstances the protective instrument of legal representation in the asylum procedure works against the minors. They are very often worse off than adult asylum seekers who can freely choose their legal representative.
The lack of participation rights has negative psychological effects as well. The minors are feeling disempowered if they are not allowed to take initiatives to ameliorate their situation.
b) To what extent does this conform to the Statement? Please outline in brief.
The views and wishes of separated children are not sought for whenever decisions affecting them are made. The interrogations by the civil servants working at the Federal Asylum Office and by the border police are not suitable for children and the responsible officers are not specially trained.
c) Are any changes needed? In relation to any first principle of SGP?
The participation of children and youth in all decisions affecting them has to be ensured by law. In all these matters the wishes of the child have to be sought by the legal representative and while proceeding due consideration has to be given to these wishes.
8. Family Tracing and Contact (SGP:C8)
a) Please describe relevant law, policy and practice in your country.
According to the youth welfare agency Vienna contact with family members is generally not possible. Many young people or do not have parents in their home country or do not reveal anything about them. Where possible, it is attempted to establish contact in writing.
Every year in about ten cases the ICRC (Central Tracing Agency) is contacted in order to trace close relatives in crisis areas (more applications have been handled during the Kosovo crisis). Tracing is limited to areas where the Red Cross is operating.
b) To what extent does this conform to the Statement? Please outline in brief.
There are not enough initiatives by the authorities to establish contacts between children in Austria and their relatives inside and outside the country of origin. The task is considered as very costly and the funds required are not available. Existing resources like the Red Cross search service are used to a small extent only.
c) Are any changes needed? In relation to any first principle of SGP?
Contact with close relatives is very important for the psychological and emotional development of minors. Minors wishing to get into contact with their relatives should be supported in their search activities by their curators or guardians.
9. Family Reunification in a European Country (SGP:C9)
a) Please describe relevant law, policy and practice in your country.
Pursuant to Art. 4 Dublin Convention unaccompanied children with a mother and/or a father recognized as refugee(s) and living in an other member state of the European Union are entitled to have their asylum application examined by that state. This provision is implemented in Art. 5 Asylum Act.
Art. 5 (1) An application for asylum which has not been ruled on in accordance with article 4 shall be rejected as being inadmissible if another country is responsible under a treaty for examining the asylum application. When rendering the administrative decision rejecting the application, the Federal Asylum Office shall also state which country is responsible. Any such decision shall be issued in conjunction with a expulsion order.
The so-called Dublin procedure is appropriate for family reunification in the case of recognized refugees. Most of these procedures relate to spouses and only very few cases to separated children.
Art. 9 Dublin Convention also provides for solutions on humanitarian grounds. The director of the Federal Asylum Office is aware of a separated boy admitted by Sweden based on this provision.
Dublin procedures can take from a few weeks up to one year depending on the country involved.
b) Does this conform to the Statement? Please outline in brief.
In principle this provision is implemented in Austrian law and is used in practice.
c) Are any changes needed? In relation to any first principle of SGP?
It is necessary to speed up the procedures (for both cases, i.e. transfers of separated children from an other Dublin country to Austria and from Austria to an other Dublin country). Until final reunification accommodation suitable to age and general care for separated children must be ensured.
The law provides for family reunification only if the parents are recognized refugees or have an other residence title. But reunification should also be possible when the parents‘ asylum procedures are still pending.
10. Interim Care – Health – Education and Training (SGP.C10)
a) Please describe relevant law, policy and practice in your country.
Most separated children arriving in Austria are at first afforded accommodation under the provisions of the Federal Care Act. For several reasons this kind of accommodation is not satisfactory.
1. There is no legal right to assistance (Art. 1 para. 3 Federal Care Act 1991). During the last years only about 25 percent of all asylum applicants were supported under these provisions. Though preference is given to minor asylum seekers, many of them do not receive such assistance.
2. Many separated children are cared for under Federal Care after applying for asylum. But this care is granted only for a period ranging from two to three months since in most cases they do not possess valid identity documents. If they can prove their identity during this period assistance is usually extended provided the asylum procedure is still pending. If they fail to do so – and almost all do – they are threatened by homelessness.
3. Even minor infringements of rules governing this assistance can trigger its withdrawal. For example, institutions providing accommodation have to report if refugees are absent without leave. After three days of such absence assistance is withdrawn. Very often assistance is immediately withdrawn if a minor refugee is reported to the police. The seriousness of the alleged infringements is not taken into account, and nobody cares whether the minor actually committed the reported offence or not – mere suspicion is sufficient.
4. Under Federal Care it is not possible to cater for special age-related needs. Offers like leisure-time activities or learning support do not exist or are provided on a voluntary basis by the institutions responsible for accommodation. There is no financial assistance for such services under Federal Care.
b) To what extent does this conform to the Statement? Please outline in brief.
The lack of special facilities for accommodation and care for arriving minors in Austria means that the demands of the Statement can not be implemented. In order to ensure conditions as envisaged in the Statement clearing facilities should be created that can provide professional care and first accommodation suitable for the children’s age. A plan for such a facility was developed and presented to the authorities by Integrationshaus Wien (a NGO), but has not been implemented up to now for lack of funding.
c) Are any changes needed? In relation to any first principle of SGP?
Separated children should first be accommodated in clearing facilities to get a clear picture of their special needs. These first reception facilities should be open to all minors and not only to those who were under sixteen years at the time of entry (as practiced in Germany). This clearing stage should take between three and six months.
Purpose and role of a clearing facility
One major goal of accommodation in such a clearing facility is to develop plans for the minor’s future. The life history of the youth should be reconstructed in a sensible way based on personal conversations. The information gathered should be given decisive importance when further measures are planned.
The minor should have the opportunity to recover from the strains of his flight and the situation in the home country
arriving minors should have the opportunity to inform themselves on the host country and to get familiar with their new surroundings
in regard of future accommodation individual circumstances should always be taken into account, e.g. whether the minor could be accommodated by relatives or persons she/he knows, which hostels or small group homes are appropriate and the extent of care and assistance needed in each case
it should be clarified with the minor, under co-operation with the competent Youth Office, whether an asylum application should be filed. If so, the minor should be thoroughly prepared. This would require several meetings with participation of an interpreter.
shortly after arrival the minors should be offered german language courses. These courses would serve to prepare the younger children for school and to provide some integration support to the older.
a basic health check should be carried out during the first months. All necessary measures should be taken to support physical and psychological convalescence.
Health Care (SGP:C10.2)
d) Please describe relevant law, policy and practice in your country.
As long as financial assistance under Federal Care is provided health care is ensured, but there is a lack of coverage before and after Federal Care.
The legal basis is provided by the Federal Care Act:
Art. 1 (1) The federal government shall take care of aliens in need of assistance who filed an application for asylum pursuant to Art. 2 Asylum Act (Federal Law Gazette ? 126/1968) as amended (Asylum seekers) . Federal Care encompasses accommodation, food and health care and other necessary measures. Each of these services can also be provided in part, taking into account the extent of assistance needed.
e) To what extent does this conform to the Statement? Please outline in brief.
Relating to health care there is no equal treatment of separated children and children who are Austrian citizens. Health assurance provided for under Federal Care is limited to absolutely necessary treatments. Some minors who had their assistance under Federal Care withdrawn have no health assurance at all.
The provision of psychotherapeutic services cannot be ensured. Psychotherapy for traumatized young people and children is offered by private initiatives (e.g. Hemayat in Vienna, Zebra in Graz) with partial funding by the authorities. These activities are not sufficient to cover the overall need for such assistance.
f) Are any changes needed? In relation to any first principle of SGP?
Under the current legal situation it is possible that a minor of age ends up with a heavy debt burden after having been granted asylum. Thus it is necessary to ensure that full health care is provided continuously.
Education, Language and Training (SGP:C10.3)
g) Please describe relevant law, policy and practice in your country.
The legal basis is provided by the 1995 Compulsory Education Act. Art. 1 establishes the target group:
Art. 1 (1) All children residing permanently in Austria are subject to general compulsory education (...).
Within the meaning of this federal law children are minors of age who pursuant to this section are subject to compulsory education or are authorized to attend a compulsory school providing general education.
Art. 17 Compulsory Education Act 1995 establishes that minors of age who are residing temporarily in Austria are authorized to attend school.
Because of the age distribution of separated children and their lack of knowledge of German only a minority is attending public schools. Some are attending external courses to acquire a leaving certificate of the "Hauptschule" (a lower secondary school), others are attending German language courses. These courses differ greatly in duration and quality.
Access to school education is in principle provided. Quite an other matter is access to professional training, which remains a big problem.
Professional training, labour market
Access to the Austrian labour market and to professional training (apprenticeship) by migrants is regulated by quotas. The so-called Federal Maximum Number, which establishes the number of third country nationals legally employable as a percentage share of all persons employed, has been lowered from 10 percent to 9 percent in 1994 and later on to 8 percent. This means that even many third country nationals with residence permits have no access to legal employment.
Access for the few recognized refugees is not restricted. Asylum seekers whose application has been finally rejected but who may not be deported or forcibly returned (i.e. asylum seekers with authorization to stay pursuant to Art. 8 and Art. 15 Asylum Act 1997) do have access to the labour market, but only pursuant to the so-called "Bundeshöchstzahlenüberziehungsverordnung", a ministerial order allowing a limited overdraft of the Federal Maximum Number mentioned above. Since there is a ranking of persons to be granted access to the labour market and these rejected asylum seekers are ranked on eleventh and last place, they have almost no chance to get an employment permit. Thus access to the labour market is theoretically possible, but in practice nearly always denied.
Until a final decision on their application, asylum seekers with authorization to reside have access to the labour market pursuant to the Federal Maximum Number. But access is only granted after the actual demand is assessed applying a special procedure. Minor asylum seekers are therefore mostly condemned to stay idle for the duration of their asylum procedure. They are working as day labourers at best or take on illegal employment. Only in singular cases and after massive interventions in their favour minors are getting employment in so-called "Mangelberufe" (professions where not more than 25 persons are registered as looking for work). In each case, the representatives of employers, unions and of the labour market office have to give their consent.
h) To what extent does this conform to the Statement? Please outline in brief.
The situation relating to school education conforms more or less to the Statement, but the opportunities for professional integration as envisaged in the Statement are not or only partly provided.
i) Are any changes needed? In relation to any first principle of SGP?
There should be unrestricted access to education and employment for separated children regardless of their residence status. Once a professional training has been started by separated children they should be allowed to finish it even after becoming adult.
11. Refugee determination process (SGP:C11)
Access to normal procedures (SGP:C11.1)
a) Please describe relevant law, policy and practice in your country.
Asylum seekers are often picked up after crossing the „green" border, a result of the strict controls carried out in the areas along the Austrian section of the external frontiers of the EU, especially along the border between Burgenland and Hungary (see answers to question 1).
Minors who are 14 or older may file asylum applications. This can be done in writing, orally or by conclusive acts.
Art. 3 (2) Asylum Act An application for asylum shall be deemed effected if aliens indicate by whatsoever means to a security authority or to an agent of the public security service their wish to be afforded protection in Austria against persecution.
Thereby the asylum procedure is initiated. The applicant is summoned to a personal interview at the Federal Asylum Office.
Art. 25 (2) Minors of age [ i.e. 14 to 19 years; note of the translator] whose interests cannot be defended by their legal representatives shall be entitled to file applications. Upon the initiation of a procedure, the legal representative shall be the locally competent youth welfare agency. As soon as a legal representative has to intervene on behalf of such juveniles in accordance with article 95, paragraph (3), of the Aliens Act, he shall also be their representative for the purposes of the present federal law.
Rejection of an application for asylum as inadmissible pursuant to Art. 4 Asylum Act Since the new Asylum Act came into force, asylum applications of minors may be rejected based on a safe third country clause. There are almost no possibilities to assist minors in such procedures. A typical example is related below: A young Palestinian from Iraq was put in pre-deportation detention by the district authorities of Neusiedl. His asylum application had been rejected by the Federal Asylum Office Eisenstadt pursuant to Art. 4 (safe third country clause) immediately after the interview. The minor was transferred to the pre-deportation detention facility Villach (about 300 kilometers away). The social worker responsible for this facility tried to lodge an appeal against the first instance decision, but he could not do it in due time (2 days) since he needed an authorization of the Youth Office; neither could an appeal out of time be lodged. A few days later the minor was forcibly returned to Hungary. Though the Constitutional Court has meanwhile decided that the two-days-deadline for appeals in case of inadmissibility contravenes the constitution (verdict on 24 June 1998, G 31/98-10, G 79/98-5, G82/98-5 und G108/98-7), the resulting disadvantage for the minor can’t be undone. Rejection of an asylum application pursuant to Art. 5 Asylum Act Art. 5 implements the rules of the Dublin Convention referring to the responsibility of an EU member state for the examination of asylum applications. This provision is used less often than Art. 4. Decisions pursuant to Art. 6 Asylum Act The dismission of an asylum application as manifestly unfounded pursuant to Art. 6 entails dramatic legal and factual consequences. As a rule, the protection based on the Non-Refoulement principle pursuant to Art. 8 is rejected together with a dismission pursuant to Art. 6.
Article 6. Applications for asylum as provided for in article 3 shall be dismissed as being manifestly unfounded if they clearly lack any substance. That shall be the case if, in the absence of any other indication of a risk of persecution in the country of origin:
1. It clearly cannot be concluded from the asylum-seekers‘ allegations that they are in danger of being persecuted in their country of origin, or
2. On the basis of the asylum-seekers‘ allegations, the claimed risk of persecution in their country of origin is clearly not attributable to the reasons set forth in article 1, section A (2), of the Geneva Convention on Refugees, or
3. The asylum-seekers‘ allegations concerning a situation of danger clearly do not correspond with reality, or
4. The asylum-seekers, despite being so requested, do not cooperate in the establishment of the material facts of the case, or
5. Owing to the general political circumstances, legal system and application of the law in the country of origin, there can generally be no well-founded fear of persecution for the reasons set forth in article 1, section A (2), of the Geneva Convention on Refugees.
Consideration of the condition mentioned in the first paragraph of the Act („in the absence of any other indication of a risk of persecution") is not part of current practice as illustrated by the case of a separated child from Iraq. By fleeing from his home country X had tried to avoid his conscription to military service. He was interviewed by the Federal Asylum Office Linz who rejected the application as manifestly unfounded. At the same time the Federal Asylum Office decided that a deportation to the country of origin was admissible.
b) To what extent does this conform to the Statement? Please outline in brief.
In principle, separated children and young people do have access to the asylum procedure, but access to the territory is very difficult. In case of minors, special procedures with shorter deadlines for lodging appeals and making decisions, for example those relating to safety in a third country or manifestly unfounded applications, are used against the express provisions of the Statement.
c) Are any changes needed? In relation to any first principle of SGP?
The so-called „fast procedures" provided for in the new Asylum Act are to the disadvantage of minor asylum seekers. Asylum applications may be rejected pursuant to Art. 4 or dismissed pursuant to Art. 6. The time limit for lodging an appeal against such decisions is 10 days starting with delivery of the decision. This represents an additional difficulty for a meaningful legal representation in the asylum procedure. Time limits for legal remedies are often missed cause of the short periods provided for. Fast procedures pursuant to Art. 4, 5 and 6 Asylum Act 1997 should be generally prohibited in case of separated children. The safe third country clause should not be applied on applications of children and minors.
Legal Representation (SGP:C11.2)
d) Please describe relevant law, policy and practice in your country.
The law provides that separated children are represented by legal representatives in all stages of the asylum procedure. A problem in practice is that youth welfare agencies do not require legal representatives to attend specific training. Thus they are often not able to cope with their difficult task. Mainly because of the obligatory presence of representatives during the interview, the situation of minors has somewhat improved during the last years. There are different models of legal representation in each province.
In Vienna, there are ongoing efforts started some years ago to form a pool of specialists. Earlier the task was taken over by each Youth Office on its own, but the civil servants could not cope with the complex legal matters. Thus the responsibilities were redistributed. Today there are nine persons employed by various Youth Offices in Vienna who are responsible for legal representation in asylum procedures. They meet regularly and deal in depth with questions concerning the asylum law and the situation in countries of origin. Repeatedly, the Youth Office requests a counsel of choice to lodge a complaint with the Highest Administrative Court. Since September 1999 two employees at the Youth Office in Vienna are dealing exclusively with separated children.
In Graz legal representation is provided differently. As a rule, legal representation in asylum procedures is entrusted by power of attorney to organisations working for refugees. During the last years they did not receive any financial compensation for their work. However, since July 1998 a contract between Caritas Graz and the local Youth Office is in force providing at least for a partly reimbursement.
The law contains no provision regarding the quality of legal representation. During 1997, in more than 95 percent of all cases no preparatory conversation with the minors were conducted prior to the interview at the asylum authorities. Usually the civil servants at the Youth Offices just know the name, sex, age and country of origin of the child to be represented before they attend an interview. Reasons for the failure to establish contact are time constraints and a lack of appropriate interpreters.
e) To what extent does this conform to the Statement? Please outline in brief.
The legal situation conforms to the Statement. However, the quality of actual legal representation differs widely. In general, the resources provided by the youth welfare agencies are not sufficient to cope with this difficult and responsible task.
f) Are any changes needed? In relation to any first principle of SGP?
There is no doubt that a meaningful representation in the asylum procedure would require several conversations between the legal representative and the minor prior to the interview. A confidential relationship between the legal representative and the minor is necessary. As a rule, this can not be accomplished by just one meeting.
Different models of representation could make sense, but it is critical to provide enough resources (interpreters, time, competence, training).
Minimal Procedural Guarantees (SGP:C11.3)
g) Please describe relevant law, policy and practice in your country.
Minors are entitled to file an application for asylum starting with the age of 14. Separated children (up to their 19th birthday) have to be represented by the locally competent youth welfare agency. Art. 27 (3) Asylum Act establishes that the legal representative has to attend the interview.
Art. 27 (3) When appearing before the authority, asylum-seekers may be accompanied by a person enjoying their confidence. Such person may be present during the interview. Asylum-seekers under full age may be interviewed only in the presence of a legal representative. Interviews shall in all cases be subject to the rules applying to the conduct of interviews by agents of the public security service. Asylum-seekers who base their fear of persecution (article 1, section A, of the Geneva Convention on Refugees) on interference with their right of sexual self-determination shall be interviewed by officials of the same sex.
This provision is a welcome improvement on the previous Asylum Act. However, without providing additional resources to the competent authorities it’s more of a farce.
In the province of Burgenland, the district authorities of Oberpullendorf, Neusiedl and Mattersburg have transferred their duty of attending the interview to the Youth Office for the district Eisenstadt – Land by way of administrative cooperation. The intention of the Youth Offices in those districts is to save travel expenses and time. Yet the remaining representation duties are not transferred and are complied with by the Youth Offices actually responsible. The effect is a lack of continuous representation of the minor during the asylum procedure. The authorities attending the interview are not informed on the outcome of the procedure, while it is up to the other authorities - who probably never had any personal contact to the youth - to decide whether appeals should be lodged against negative first instance decisions. Usually the legal representative is introduced to the minor by the interpreter at the beginning of the interview. Considering the emotional stress in such a situation it is conceivable that the minor is not aware that the officer of the Youth Office is her/his legal representative.
The youth welfare agency has to decide whether to lodge an appeal against a negative asylum decision and further on also whether additional legal remedies should be taken e.g. with the Highest Administrative Court, the Constitutional Court or complaints against orders for pre-deportation detention. The youth welfare agency may (at least in Vienna) entrust a counsel of choice; the related costs are to be paid by the state.
There is no speeding-up of the procedures neither at the first nor the second instance.
h) To what extent does this conform to the Statement? Please outline in brief.
Separated children do have access to the asylum procedure in Austria, and the asylum procedure provides for appeals.
A remaining problem is that the decision on the actual lodging of an appeal rests exclusively with the youth welfare agency.
The law does not provide for a speeding-up of asylum procedures for separated children nor is this done in practice. This does not conform to the recommendations of the Statement.
i) Are any changes needed? In relation to any first principle of SGP?
In order to avoid the possibility that the youth welfare agency acts against the express wishes of its client the final decision on lodging appeals in asylum procedures should be taken by the child.
Independent Assessment (SGP:C11.4)
j) Please describe relevant law, policy and practice in your country.
Separated children under the age of 14 have no competence to act in the asylum procedure. The same applies to persons with mental disabilities. If it is established in the course of the interview at the Federal Asylum Office that such conditions are present the interview is stopped and the matter is referred to the court. The court appoints a trustee, if necessary relying on expert opinions.
The application for asylum is deemed not effected. The trustee may file an application later on if he concludes that this is advisable.
The dismission of the application for asylum is problematic in so far as the minor is left in a legal limbo. Since no asylum procedure is initiated the minor has no provisional authorization to reside pursuant to Art. 19 Asylum Act.
k) To what extent does this conform to the Statement? Please outline in brief.
In principle the demands of the Statement are implemented. However, the persons concerned do not have a clear residence status until an application for asylum is filed. Thus they are pushed into illegality.
l) Are any changes needed? In relation to any first principle of SGP?
As an urgent measure it should be ensured that children under the age of 14 and persons with mental disabilities are provided with a residence title until an asylum application is filed.
Interviews (SGP:C11.5)
m) Please describe relevant law, policy and practice in your country.
Pursuant to Art. 27 (3) Asylum Act 1997 a representative of the locally competent youth welfare agency has to attend the interview in the asylum procedure. Yet this provision by itself is no guarantee that the interview is conducted in a child-friendly manner. There are no rules on obligatory breaks or interruptions. Related decisions are within the discretion of the officer of the Federal Asylum Office or, at the second instance, of the member of the Independent Federal Asylum Senate. The legal representative may indicate that breaks are necessary. Since the Federal Asylum Office is complaining about the great number of asylum procedures to be processed emphasis is put on speed. Breaks and interruptions run contrary to this aim. In some provinces several asylum procedures of separated children are handled on one day, since otherwise the representative of the competent youth welfare agency would have to travel several times to the Federal Asylum Office. This practice results in additional time constraints and provides incentives to dispense with necessary breaks. During 1997, only in a few cases was the interview actually interrupted. As a rule, the officer of the Federal Asylum Office settles with just one interview session. A second interview took place only in ten of 185 documented cases, a third session only in two cases („The Situation of Unaccompanied Minor Refugees in Austria", 1998).
According to many separated children, the atmosphere during the interviews is rather unpleasant. The offices at the Federal Asylum Office are experienced as frightening, recalling them interrogations or intimidations suffered in their home country. In the course of the interview, the respondents have to relate credibly the kind of persecution they suffered and how they fled, making them relive feelings of desperation, stress and fear. Retraumatization is possible. A young woman recalls her interview:
X: There was a man and another man, the interpreter and a secretary ... I was afraid.
I: How did the officers behave?
X: They were very strict. They said what’s your name? Where are you from? What do you want here? So many questions...
I: Was there somebody present during the interview or were you alone?
X: I was alone.
I: There was nobody there from the Youth Office?
X: Yes, a woman.
I: Did you know this woman?
X: No, this was the first time I saw her.
(Parts of an interview provided by Irene Messinger)
Currently the Federal Asylum Office has no officers at its disposal who are trained for handling the specific problems of separated children nor are native speakers employed. Refugee workers report that officers very often address juveniles using the familiar „Du", thereby aggravating the inherent imbalance of the situation.
Non-verbal expressions – dismissive gestures, shaking of the head etc. – intermediate conversations and comments by the officer which are not translated, for example relating to the indicated age, are adding to the uneasiness felt by the applicants.
The Federal Asylum Office is aware of this problem. A special person has been designated to deal with the treatment of separated children and it is planned to provide special training for officers. No such training is planned for members of the Independent Federal Asylum Senate.
n) To what extent does this conform to the Statement? Please outline in brief.
The provisions regulating the legal representation do conform to the Statement. However, a procedure suitable for children is not ensured.
o) Are any changes needed? In relation to any first principle of SGP?
The obligatory presence of a legal representative during the interview is a welcome improvement. However, it is absolutely necessary to provide for sufficient time so that this duty may be fulfilled in a responsible manner. Improving the atmosphere at the Federal Asylum Office is another urgent task. In order to avoid putting too much strain on the children and youth during the interview interruptions and breaks should be provided for.
Criteria for making a decision on a child’s asylum application (SGP:C11.6)
p) Please describe relevant law, policy and practice in your country.
There are no specific provisions relating to asylum applications of separated children. The applicable procedural principles are those of the General Administrative Procedures Act (AVG), relating to the evaluation of evidence especially the principle that the authorities have to establish the material facts ex officio, the principle of free weighing of evidence and of unrestrictedness regarding the admissible evidence.
Especially in case of children and youth, an inability to talk about their persecution or a lack of continuity in their reports can be caused by traumatic experiences. However, this is regularly misinterpreted by officers at the Federal Asylum Office as indicating a lack of credibility. Several factors are acting against a fair examination of asylum applications of minors: lack of sensibility for child-specific forms of expression on the part of the officers of the Federal Asylum Office; lack of preparation for the asylum procedure on the part of the minors; insufficient assistance from legal representatives during the asylum procedure. The lack of sensibility in dealing with minors is reflected by the decisions made: Of the 179 applications analyzed, the first instance recognized only two and refused 177, implying a recognition rate of just over 1 percent. Compared to that, the recognition rate of all asylum applications decided in 1997 at the first instance was about nine percent (source: „The Situation of Unaccompanied Minor Refugees in Austria", 1998).
Also at the second instance, the decision makers are not especially prepared to handle procedures of separated children. Second-instance decisions have not been analyzed up to now.
q) To what extent does this conform to the Statement? Please outline in brief.
Austrian practice does not conform to the Statement. Children and youth applying for asylum have only a minimal chance to be recognized as refugees. The Asylum Act does not mention child-specific forms of persecution and they are not considered in practice. The criteria applied are the same as those for adults.
r) Are any changes needed? In relation to any first principle of SGP?
The interview in the asylum procedure should be conducted in a child-friendly manner. Fairness requires furthermore to consider the minors‘ age . Children are often not able to give sufficient reasons for their request for protection. The Geneva Convention should be construed in a generous manner. In order to accomplish that, officers dealing with applications of separated children should receive special training. This should be underpinned by legal provisions and instructions securing an asylum procedure that is fair and suitable for children.
Young people who become adults during the asylum process (SGP:C11.7)
s) Please describe relevant law, policy and practice in your country.
In asylum procedures minors are represented by the youth welfare agencies until their 19th birthday. Thereafter the responsibility for the procedure rests with the asylum seeker alone. There are no transitional periods enabling a continued representation by the youth welfare agencies. A speedier handling of applications filed by minors who are close to the age of 19 is not observable in practice, neither at the first nor at the second instance.
t) To what extent does this conform to the Statement? Please outline in brief.
Provisions relating to this specific problem do not exist in Austrian law and there are no corresponding measures taken in practice.
u) Are any changes needed? In relation to any first principle of SGP?
It would be useful to ensure an appropriate representation of juveniles in the asylum procedure after they become adults. This could be accomplished in two ways: Or the youth welfare agency continues to represent the asylum seeker until a final decision is made or the representation duties are transferred to a NGO based on an orderly procedure.