legal and social conditions for asylum seekers and refugees in ...

Pursuant to Section 4(2), protection in a third country is considered to exist when the following
conditions are met:
– an asylum procedure in accordance with the Geneva Convention is available in that country;
– the applicant is entitled to reside there during the asylum procedure;
– he/she is not exposed to danger as specified in Section 57(1-2) of the Aliens Law – inhuman
treatment or punishment, death penalty and refoulement – in that country and;
– he/she is protected in that country against deportation to his/her country of origin, including
deportation via other countries.
Nevertheless, the “safe third country” issue is deemed irrelevant and is not applied if:
– the asylum-seeker is a citizen of a member country of the European Economic Associations
(EEA), or;
– he/she is an unmarried minor, whose parents have been granted asylum in Austria;
– his/her spouse or minor children have been granted asylum in Austria;
The countries generally considered to be “safe” are those which have ratified the Geneva
Convention and established by law an asylum determination procedure incorporating the
principles set forth in the Convention, and which have also ratified the European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocol No. 11.
By Law of 8 January 1999 amending the Asylum Law, the Minister of Interior was given the ability
to adopt, by ministerial order, a list of “safe third countries”. This has, however, not yet been
done. In practice, most non-EU neighbouring countries – i.e. Slovenia, Hungary and the Czech
Republic – are considered to be “safe”. Slovakia used to be deemed “safe”, but following a
decision of the Independent Asylum Review Board confirmed by the Austrian Higher
Administrative Court this is no longer the case. Finally, Switzerland is not included as a “safe third
country” because the Swiss-Austrian readmission agreement is not functioning.
The decision on admissibility on “safe third country” grounds is made by the Federal Asylum
Office following an interview with the applicant. In practice, although the intention of the Austrian
authorities was to implement the inadmissibility procedure within short time limits, this is not the
case, and it often takes several months for the Office to render its decision. This may, in many
cases, make the removal to the third country impossible, as many readmission agreements
concluded by Austria include a three-month time limit in which to forward the request for transfer.
Appeal rights regarding decisions on admissibility on “safe third country” grounds are described
below.
Inadmissibility on “Dublin” grounds
According to Section 5 of the Asylum Law, asylum applications which are not deemed inadmissible
on “safe third country” grounds may be deemed inadmissible if another state is responsible under
the provisions of the Dublin Convention (or Schengen Agreement).
The Federal Asylum Office is responsible for carrying out the Dublin procedure and for sending
requests to take charge to the states considered to be responsible. No provisional residence
permit is granted to applicants processed under Dublin procedure whilst they are awaiting the
decision of the requested state, even though the procedure may last for several months.
Appeal rights regarding decisions based on the Dublin Convention are described below.
12
Austria