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AUSTRIA
Detention is possible also during the application determination procedure on grounds of illegal
entry or illegal residence of applicants who entered illegally by evading border controls. In
order to enforce their departure, they may be detained in prison cells or in police station cells.
The law allows for a maximum of six months’ detention in these cases. The migrant may file a
complaint with the Independent Administrative Senate if the detention exceeds this respite or is
otherwise considered unlawful. Applicants with a provisional residence permit may also be
detained if the outcome of their application is likely to be negative and a deportation has to be
enforced.
Under Article 61 of the Aliens Act, rejectees and any foreigner subject to leave the territory of
Austria may be apprehended and detained to enforce the obligation to leave and reduce any risk
that expulsion may fail.
The maximum length of detention pending deportation is two months, which may be extended
to four months in special cases. According to Article 69 (6) a foreigner may be detained for a
maximum of six months within two years. A detention period of a maximum of 14 days to
enforce deportation is nevertheless possible.
However, Article 69 (1) also stipulates that the authorities are obliged to work towards a detention
period that is as short as possible.
Austrian legislation on aliens also foresees under Article 66 the possibility of “more lenient
measures”, according to which the authorities may refrain from detention pending deportation if
they have reason to believe that their objectives may be achieved by the use of other means. With
the explicit consent of the alien, the authorities may order him/her to take accommodation at a
designated address and report every second day to the relevant authorities. In case of noncompliance
with this order, the alien may be ordered detained. In this case, the law allows in
accordance with Article 69 that the maximum time for detention be doubled.
Minors are usually not detained but treated under Article 66, which stipulates more lenient measures
for this group, unless the authorities have reason to assume that the objective of an order for
detention pending deportation cannot thereby be achieved. According to Article 66, the minor
shall be placed in premises specified by the authorities.
Illegal Entry
Most asylum seekers enter Austria illegally. They avoid border controls and apply within the
country for asylum, in order to evade a push back or rejection at the border. The Aliens Act
stipulates under Article 55 that foreigners who evade border controls and are found within seven
days can be pushed back.
Austrian legislation imposes penalties on persons assisting illegal entry of migrants. This also
includes cases where assistance is provided for humanitarian reasons. Under the law, a person
can also be charged for providing aid to migrants residing illegally in Austria. A person can also
be charged for renting an apartment to undocumented foreigners and for soliciting the services
of a trafficker who facilitates illegal entry into Austria.