Alternatives to Detention in Austria

Comprehensive reception and care arrangements in the community for unaccompanied children

Guardianship: The Children and Youth Service Authorities becomes the guardian of unaccompanied children. This is for all minors, irrespective of age and status. Usually the guardians’ duties include care and education, asset management and legal representation but some duties may be outsourced to reception facilities, NGOs or law firms.

Practical implementation varies according to children’s place of residence as  guardianship is the competence of each individual province and that there are no guidelines concerning its implementation – practice has been criticised as being inconsistent.

Each child is allocated a “Supervisor” who s/he can refer any questions or problems to.

Legal representative: Children who seek asylum are also appointed a legal advisor during the admission procedure. Once admitted, have access to free legal advice as per other asylum seekers.

Accommodation and reception  Organized reception facilities (apartment-sharing groups (majority)), residential homes; supervised accommodation).

Access to education – equal access to primary education as Austrian children; secondary education more challenging and often only with help of NGOs and private organizations. Asylum seeking minors can be granted work permit for vocational training with certain conditions/restrictions.

Access to healthcare – general health insurance system.

Residence Options -asylum status (permanent residence); subsidiary protection status (1 year residency, extendable for 2 year periods); residence permit or residece permit plus (on grounds of Article 8 ECHR); residence permit for individual protection (trafficking, victim of violence or grounds for tolerated stay); Red-White-Red Card plus ; Tolerated Stay (if removal is not possible).

Age Assessment – The multifactorial medical age assessment includes physical, dental and radiological examinations. The combined results of these examinations lead to a defined minimum age. Until the assessment has been undertaken and the results are available, the potential child – as a matter of principle – is treated as a minor.

Law prohibiting the detention of children under 14

Article 76(1a) of the Aliens Police Act provides that children below the age of 14 must not be detained.

Children between 14 and 16 years old can only be detained in exceptional cases, if the authorities decide that the object and purpose of detention cannot be reached through a more lenient measure and if there is a high risk of absconding.

Authorities are supposed to provide non-custodial (“alternative”) measures for minors aged 14-16, unless certain facts justify the assumption that the purpose of the detention order cannot be achieved with alternatives.

They may be held in detention only if accommodation and care appropriate to their age and stage of development can be guaranteed (Aliens Police Act, articles 77(1) and 79(2)).

Minors between 14-18 years can only be detained up to two months (Aliens Police Act, article 80(2)(1)).

Usually they are detained in the Family Detention Centre in Vienna Zinnergasse (taken from GDP Profile, accessed 28 March 2015).

Law requiring the use of alternatives to detention before detention

Art.  77  para  1  Aliens Police Act  stipulates  that  individuals  shall  be  provided  with  an alternative  to  detention  if  detention  grounds  (Art.  76)  are  present  and  the purpose  of  detention  can  also  be  achieved  by  their  provision.

The  following forms of alternatives to detention are provided in Art. 77 para 3 APA:

1. Residing at a particular address determined by the authority;
2. Reporting periodically to the police station;
3. Lodging a financial deposit at the authority.

Administrative High Court, 17 October 2013, 2013/21/0041 – individuals  shall  be  provided  an  alternative  to detention if detention grounds are present but the purpose of detention can be achieved by the alternative. However, if the necessity of detention to secure a procedure or measure terminating residence is not present,  no  alternatives to detention  shall  be  imposed  either. According to the handbook of the Aliens Police Act (as of 1 July 2011), the facts that justify the assumption that the purpose of detention cannot be achieved through alternatives include the existence of a criminal conviction or the misuse of a previous alternative to detention with the aim to abscond.

Regular administrative review of detention

The Federal Office for Immigration and Asylum reviews the lawfulness of a detention order monthly. After four months, the Federal Administrative Court (which replaced the Independent Administrative Board in January 2014) must review the lawfulness of detention on its own motion. Detainees have the right to appeal detention before the Federal Administrative Court. The state must provide free legal assistance to detainees. Two organisations are contracted to provide state-sponsored legal aid: ARGE Rechtsberatung (Diakonie Flüchtlingsdienst and Volkshilfe Oberösterreich) and Verein Menschenrechte Österreich. They receive a lump sum of 191 Euros per case, including the cost of hiring an interpreter. However there are reported issues with the quality of legal aid.

Find out more: email the Europe Regional Coordinator for IDC