Publications
National Assessments
AUSTRIA: Questionnaire for Country Assessment
2003 Update of the Austrian national assessment [PDF]
ASSESSMENT PERIOD: 1997 - 1999
RESPONDENT:
Heinz Fronek asylum coordination Austria
AGENCIES /INDIVIDUALS CONSULTED BY RESPONDENT:
Helmut Sax Ludwig Boltzmann Institute for Human Rights
Georg Bürstmayr Lawyer representing separated children
Gerhard Wallner Youth Welfare Agency Vienna (Director of the Competence Centre for Unaccompanied Minor Refugees)
Ulrike Wintersberger Deputy Director of the Independent Federal Asylum Senate
Wolfgang Taucher Director of the Federal Asylum Office
Anny Knapp Chairwoman asylum coordination austria
Sabine Racketseder UNHCR
Marion Kremla Deserteurs- und Flüchtlingsberatung (Vienna-based NGO advising refugees and deserters)
Franz Deix ICRC Central Tracing Agency
Kornelia Pivkovic Interventionsstelle für Betroffene des Frauenhandels (Vienna-based NGO working with and for persons concerned by traffic in women)
DOCUMENTS USED or REFERRED TO BY RESPONDENT:
Study "The Situation of Unaccompanied Minor Refugees in Austria" (published by UNICEF and asylum coordination Austria), Vienna, September 1998
Statistics of the Federal Ministry of the Interior
Answers to parliamentary inquiries by members of the federal government
Definition of "separated child"
1. Access to the territory
2. Identification
3. Appointment of Guardian or Adviser
4. Registration and Documentation
5. Age Assessment
SECOND PAGE
6. Detention
7. Right to Participate
8. Family Tracing and Contact
9. Family Reunification in a European Country
10. Interim Care – Health – Education and Training
11. Refugee determination process
THIRD PAGE
12. Durable Solutions
13. Data collection
14. International instruments
15. Consultation with separated young people
16. Political level – support for change
Definition of "separated child" (SGP: A 2.1)
a) Please give details of the definition used in your country. Different agencies may apply different definitions. Please give details of this.
There is no unequivocal legal definition of the term „separated child". Under private international law majority and legal capacity of young people depend on (in the legal provisions of the home country. Thus majority is usually attained at the age of 18. At the time of attaining majority young people have to leave facilities provided by youth welfare agencies. Yet there are two major exceptions to this rule in Austria’s law on aliens and asylum.
in procedures pursuant to the Aliens Act minors have legal capacity starting at the age of 16
under the asylum law aliens of the age of 19 have legal capacity to act regardless of their being considered major or minor according to the laws of the country of origin
The definition on which this response is based is as follows:
"Separated children and young people" are all children and young persons that are under 19 years old, are situated out of their country of origin, are separated from both their parents and not cared for by an adult who by law or custom has a duty to care for them.
b) Are children with older siblings over 18 years of age considered to be separated children? Please refer to Annex II of UNHCR Guidelines 1997.
Children accompanied by siblings over 18 years are considered to be separated children though the guardianship court (Pflegschaftsgericht) may appoint siblings who are major according to the law in their home country as their guardians. The procedure leading to such an appointment includes an assessment of the major brother‘s/sister’s basic capability to act as curators/guardians and consideration of their relationship to the minor concerned.
c) To what extent does this conform to the Statement?
The various legal provisions on attaining legal capacity do not conform to the Statement.
d) Are any changes needed? In relation to any first principle of SGP?
One change urgently required is the alignment of the age of legal capacity in the Aliens Act with the corresponding age in the Asylum Act. The higher protective age in the asylum procedure is generally viewed as positive. Thus any assistance by youth welfare agencies, whether legal representation in procedures under the Asylum and the Aliens Act or accommodation, should be provided up to this higher age.
It is planned to align the age of majority (of Austrian youth as well) with the internationally prevailing age of 18. This would imply a lower age limit for representation in asylum procedures.
1. Access to the territory (SGP:C1)
a) Please describe relevant law, policy and practice in your country.
The general rules on entry to and residence in Austria are provided by the Aliens Act (1997).
The treatment of persons applying for asylum at the border is regulated by Article 17 of the Asylum Act (1997), where a difference is made between entry via an airport (para. 1) and at a frontier crossing point (para 2ff.).
Article 17.
(1) Aliens arriving via an airport or arriving directly (article 31 of the Geneva Convention on Refugees) from their country of origin who file an asylum application or an asylum extension application at the time of the border control carried out at a frontier crossing point shall be brought before the Federal Asylum Office unless they possess authorization to reside or their application is to be rejected by reason of res judicata.
(2) Aliens who otherwise file an asylum application or an asylum extension application at the time of a border control carried out at a frontier crossing point shall unless their entry is permissible under Section 2 of the Aliens Act be rejected at the border and informed that they have the possibility either of seeking protection from persecution in the country in which they are currently resident or of filing an application for asylum with the competent Austrian diplomatic or consular authority. If, however, such aliens request that their application for asylum be filed at the frontier, they shall be notified that in such event the asylum authorities will be involved in the decision concerning their entry and that they will be required to await the decision abroad. For the purpose of making an asylum application in such cases, they shall be provided by the border control authority with an application form and questionnaire drawn up in a language understandable to them (article 16, paragraph (2)).
Experience has shown that only a very small number of refugees (about 100 during more than 18 months) is actually applying for asylum at the border. Since entry into force of these laws the director of the Federal Asylum Office is aware of only one minor applying for asylum at the border who consequently was permitted to enter Austria. There is no provision for assistance to minors in these forms-based procedures as for example by legal representation through youth welfare agencies.
As a rule, refugees arriving in Austria by land are crossing the border illegally, and an asylum application is filed inside the country. Because of heavy border controls at the Austrian section of the external frontiers of the European Union, especially along the border between the (Austrian) province of Burgenland and Hungary asylum seekers are often picked up soon after crossing the border. Adults, children or young people are treated in the same way.
If they are not rejected immediately they are brought to one of several border district points which have been set up in Burgenland in every district especially for detention purposes. Here the asylum seekers undergo the identification procedures provided for in the Aliens Act and are able, theoretically at least, to file an application for asylum. The period of stay in these border district points is limited to a maximum of 48 hours. Detained persons are usually handed over to Hungarian authorities during the following day. The seven border district points in Burgenland can each accommodate between 6 and 22 persons at one time and are guarded, meaning that refugees have no contact to the world outside. During this stage, minors are not able to get into contact with representatives of youth welfare agencies. There is no information on the number of separated children and young people who disappear in this legal "grey area".
Only very few asylum applications make their way from these border district points to the Federal Asylum Office, and some NGOs suspect that asylum applications filed orally are not forwarded. Several cases of unsuccessful application attempts are documented. For example, a minor asylum seeker who had entered Austria on 10 March 1998 made the following statement (in the course of his interview at the Federal Asylum Office):
"When I was detained I told the officer in English that I wanted to apply for asylum and wished to have a lawyer. On 11 March 1998 it was attempted to return me to Hungary. Only after the Hungarian officers asked me and the others whether we had applied for asylum in Austria and we answered in the affirmative they refused to take us back."
The Aliens Act establishes two so-called "free-of-procedure" measures by which an alien may be removed from the national territory, a rejection at the border (Art. 52) and a forcible return (Art. 55). A rejection at the border is applied on persons detained while crossing the border without valid entry permits or with a valid residence ban imposed on them; in both cases they are sent back immediately. A forcible return is permitted during up to seven days after a person has crossed the border illegally. For both measures no prior formal administrative decision is required, the authorities in charge can act immediately and there is no effective legal remedy available.
In case of separated children arriving via an airport a special procedure is applied to decide on the admissibility of their entry, though the Federal Asylum Office conducts an exploratory interview to decide whether entry is to be permitted without such a procedure. This so-called „airport procedure" was established with the entry into force of the new Asylum Act on 1 January 1998. Both the youth welfare agency and UNHCR are involved from the very beginning. According to Art 39 (3) of the 1997 Asylum Act applications from asylum seekers arriving via an airport may not be dismissed as being manifestly unfounded or rejected by reason of existing protection in a safe third country except with the consent of UNHCR.
In 1998 no unaccompanied minor (UAM) was among the cases which were referred to UNHCR for its consent. During the first 9 months of 1999 UNHCR was asked in six cases concerning UAM for its consent. In two of the cases UNHCR gave its consent to reject the asylum applications as manifestly unfounded, in two cases it did not give its consent. In one of the other two cases the asylum seeker withdraw its asylum application before a decision by UNHCR had been taken, and in one case the asylum seeker disappeared from the airport zone before a decision had been taken.
b) To what extent does this conform to the Statement? Please outline in brief.
Access to the Austrian territory does in no way conform to the Statement. Neither is access to the territory ensured nor are the forms-based procedures at the border appropriate for the special needs of minor refugees. The detention of persons picked up after crossing the border illegally in border district points without access for legal advisers or NGOs is unacceptable. Compared to this, the airport procedure is an accomplishment: both legal representation by the youth welfare agency and the involvement of UNHCR is ensured.
c) Are any changes needed? In relation to any first principle of SGP?
In case of separated children picked up after crossing the border the locally competent youth welfare agency has to be involved immediately and the persons concerned have to be transferred to a first reception facility (clearing facility) yet to be created.
d) Please also indicate whether your country has ‚carrier liability legislation‘ whereby airlines, train and boat companies can be fined if they bring in someone without proper documentation. Is this applied to children and young people under the age of 18?
The responsibilities of transport companies are established in Art. 53 (2) Aliens Act:
(2) Aliens whose entry took place on board of an aircraft, land vehicle or vessel of a carrier may, in order to guarantee the rejection at the border as an expulsion security measure, be forbidden to disembark from the conveyance or be required to board a specific conveyance by which they may leave the federal territory. The party which transported the aliens shall in such cases be obliged at its own expense to ensure that the aliens depart without delay, unless departure is arranged by another carrier at no cost to the Republic of Austria.
There are no special provisions regarding children or juveniles.
Trafficking (SGP:C1.2)
a) Are you aware of any children being trafficked for purposes of exploitation into your country? If so please give brief example(s) stating if possible the country of origin and nature of trafficking. Please also give examples where children have travelled along trafficking routes in order to apply for asylum.
Precise information on this issue is hard to come by. Individual cases of minor girls sold to Austria are known. According to the Interventionsstelle für Betroffene des Frauenhandels during the last 18 months at least four minor refugee girls became victims of traffic in women in Vienna. In these cases the association mentioned was contacted by the Aliens Police. In each case, the girl was provided with accommodation by the Crisis Intervention Centre in co-operation with the Youth Office. Yet afterwards all girls were deported to their country of origin since no residence permits were granted, though this would have been possible under Art. 10 (4) Aliens Act.
Art. 10 (4) Notwithstanding the existence of grounds for refusal under subparagraphs 2, 3 or 4 of paragraph (1) above or under subparagraphs 1, 2 or 5 of paragraph (2) above, the authority may on humanitarian grounds, in cases particularly deserving of consideration, grant aliens a residence permit ex officio. Cases particularly deserving of consideration shall exist in particular if the aliens are exposed to a danger as specified in paragraph (1) or (2) of article 57. Aliens who have left their native country as victims of an armed conflict may be granted such residence permit solely for the probable duration of that conflict, and for a maximum period of three months. In cases involving punishable acts as defined in article 217 of the Penal Code, such residence permit may be granted, for the necessary period, to witnesses, with a view to guaranteeing the outcome of the criminal prosecution, and to victims of the traffic in persons, with a view to enforcing civil rights claims against the perpetrators.
Lack of protection in Austria itself means that children and young people are easy prey for pimps. One case involved a girl of sixteen accommodated under Federal Care in a youth hostel (Kolpinghaus) in Vienna. After some days the women responsible for the girl noticed that an unknown man was getting into contact with her. Some weeks later it became known that the girl had offered her services as a prostitute to other inhabitants of the hostel. As the direction of the Kolpinghous wanted to impede such activities in the hostel the girl was expelled immediately. Two similar cases are known to have happened in the province of Styria.
According to the youth welfare agency Vienna it is suspected that people are being brought to Austria for drug trafficking purposes, especially black Africans (probably under false pretences), who then are forced to sell drugs to repay their „traveling expenses".
b) Have any measures been taken by the state to combat trafficking of any sort?
Legal measures to combat trafficking are established in the Strafgesetzbuch in Art. 64 (1) and Art. 217.
2. Identification (SGP:C2)
a) Please describe relevant law, policy and practice in your country.
Personal identity can be proven through an appropriate document; otherwise the information given is at first assumed to be true. Asylum seekers have to undergo obligatory photographing and fingerprinting pursuant to Art. 64 (3) Security Policing Act (SPG).
Art. 35 Asylum Act The authorities shall be empowered to arrange for the photographing and fingerprinting of asylum-seekers and of aliens who are to be granted asylum pursuant to article 9 (article 64, paragraph (3), of the Security Policing Act (SPG), FLG No. 566/1991). The authorities shall further be empowered to carry out measures for the establishment of personal identity (article 64, paragraph (5), of the Security Policing Act). Articles 65, paragraph (4), 77 and 78 of the Security Policing Act shall be applicable.
b) To what extent does this conform to the Statement? Please outline in brief.
There is no procedure for the establishment of identity as demanded in the Statement.
c) Are any changes needed? In relation to any first principle of SGP?
Since almost all separated children arriving in Austria are able to give information about their identity this information should be accepted as valid in principle. In case of younger minors the youth welfare agency should be involved in the establishment of identity immediately.
3. Appointment of Guardian or Adviser (SGP:C3)
a) Is a guardian or adviser appointed?
There is no automatic appointment of a guardian. If the youth welfare agency concludes that this is necessary it may file an application for an appointment as guardian or curator at the guardianship court. There are considerable differences in practice in each province.
According to Mr. Hacker, a guardianship judge in Linz, the youth welfare agencies have a duty to file such an application but in most cases fail to comply with it. Thus he has initiated guardianship procedures for separated children residing in the area of Linz (his own competence area). His view is that in almost all cases curatorship or guardianship will be transferred to the youth welfare agency. In other provinces there are no such initiatives, but asylum coordination Austria, together with other NGOs, is currently informing the guardianship courts about separated children in their competence area and is urging the courts to appoint the respective guardians.
According to the youth welfare agency in Vienna, in 1999 full curatorship pursuant to Art. 176a ABGB (Civil Code) or guardianship pursuant to Art. 213 ABGB was transferred to the agency by judicial decision for a total of 36 minors. In the course of the same year the agency assumed legal representation of about 240 minors in their asylum procedures.
b) If so, what is their role?
The duties transferred to curators or guardians may include legal representation, care and education.
c) How soon after the childrens‘/juveniles arrival are they normally appointed?
No detailed information can be provided in this regard. From the date of application it may take several weeks or up to several months until a final decision.
d) What kind of personal and professional background and expertise do guardians/advisers have?
Persons appointed as guardians for separated children are specially qualified welfare officers.
e) To what extent does this conform to the Statement? Please outline in brief.
The situation does not conform to the Statement. First, in many cases the youth welfare agency does not assume curatorship or guardianship, and second, the extent of the care duties assumed and the rights of the children and young people are not clear.
Under these circumstances there is no way of ensuring that all decisions are taken in the childrens‘ best interests. Advice is very often not provided due to time constraints. Austrian authorities do not engage in tracing of relatives in order to find a solution by family reunification.
Furthermore the resources available to youth welfare agencies are not sufficient to ensure accommodation suitable to the child’s age, personal care, access to education, language support and health care for all minors in need. Regarding legal representation in asylum procedures the situation is somewhat better, a result of the clear obligation in this respect established by the Asylum Act.
In some provinces the professional background of appointees conforms to the Statement, though there is a need to develop and offer vocational training courses to enable the appointees to cope with the particular challenges and difficulties of their duty.
f) Are any changes needed? In relation to any first principle of SGP?
Only a nation-wide solution can provide an effective remedy for the current shortcomings. Up to now the youth welfare agencies refuse to take over responsibilities whenever possible. Unclear rules regarding competence mean that young people are victimized and threatened by homelessness.
An example is M. from Sierra Leone who arrived in Austria at the end of June 1999, applied for asylum in Traiskirchen and was transferred to the emergency accommodation of the Ministry of the Interior. His first interview was postponed repeatedly and after four months it was still not done. By reason of his possession of a mobile phone he had to leave the emergency accommodation since he was no longer considered to be destitute. Then, he was accommodated by the Evangelische Flüchtlingsdienst and got into contact with Caritas and the Afro-Asian Institute in Vienna. On 30 September the Evangelische Flüchtlingsdienst sent him to the Youth Office, the agency officially responsible for accommodation. There he was rejected: „What shall we do? We‘d rather put a boy of 17 on the street than one of only 14."
Then M. stayed for three nights at the Bahnhofssozialdienst, an emergency accommodation for homeless adults at the Westbahnhof (a major railway station), was thrown out again and sent back to the Youth Office. In the Crisis Intervention Centre Augarten he was told that no place was available, sorry. The Federal Care still refuses to provide him with accommodation. One night he slept at the Café Sozial for ATS 50 (about 3.6 Euro). Nobody knows for how long this will go on.
The problems arising from unclear responsibilities are now acknowledged by the authorities. There are coordination talks between the Ministry of the Interior and the provincial authorities on the highest civil service level. That no NGOs have been involved in these talks up to now is seen as a bad sign.
4. Registration and Documentation (SGP:C4)
a) Please describe relevant law, policy and practice in your country.
There is no thourough registration and documentation of data regarding the situation of separated children. The documentation is limited to information on personal identity and the reasons for leaving the home country indicated in the asylum procedure. The legal representative has access to the interview protocols. Institutions providing accommodation usually do not have systematic knowledge about the childrens‘ history. Especially if accommodation is provided under Federal Care no resources exist to assess the past, the present situation and the future opportunities of the refugee, as highlighted by the following example.
A sixteen year old girl was accommodated for six months under Federal Care in a Kolpinghaus in Vienna. After she had moved out and a refugee adviser of the Deserteurs- und Flüchtlingsberatung went there to get her clothes, nobody in the Kolpinghaus could recall her name.
The situation in case of accommodation by the youth welfare agencies is hardly better. There is a lack of documentation of the present situation, and no assessment of the opportunities open to the minors takes place.
b) To what extent does this conform to the Statement? Please outline in brief.
No legal provision for twin-track interviews as demanded in the Statement exists nor is anything comparable done in practice. Civil servants responsible for the establishment of identity are not qualified for the challenges of dealing with separated children. Officers are carrying out age assessments without any pertinent professional qualification. This practice clearly does not conform to the Convention on the Rights of the Child according to which the member states shall establish the identity and nationality without resorting to illegal acts.
c) Are any changes needed? In relation to any first principle of SGP?
There should be obligatory training courses on how to deal with separated children for all persons involved in the registration of refugees. It is also very important to protect the identity of minor refugees from arbitrary acts committed by civil servants. The law should clearly establish under which circumstances the information on personal identity given by a separated child may be questioned. Unless this information is proved to be wrong it should be considered valid.
Especially institutions providing accommodation need to have detailed information on the situation of the minors they are caring for if they are to develop reasonable plans for their future.
5. Age Assessment (SGP:C5)
a) Please describe relevant law, policy and practice in your country.
Since several years there are concerns in Austria that adults could pretend to be minors in order to benefit from such a classification, and the authorities are developing strategies against this presumed abuse.
The youth welfare agency Vienna initiated age assessments by x-ray examinations of the wrist in the case of three Chinese girls, though these examinations never took place as the girls went into hiding. The first actual case of such an examination (of a boy) took place on 22 December 1997. The expert opinion was provided by Professor Dr. H. Frisch of the University Hospital for Pediatrics in Vienna. The opinion read as follows:
"According to indications by himself Mr. X would be 15 ½ years old, we determined a bone age pursuant to Greulich & Pyle, the result of which was a value of about 19 years. It should be noted that there is a simple standard deviation of 15 months and that consequently an exact determination of the chronological age based on a x-ray of the hand is not possible."
Based on this expert opinion the youth was expelled from the Crisis Intervention Centre Wasnergasse, although the opinion clearly mentioned a simple standard deviation of 15 months. One can conclude from such a high value that the procedure is not very exact. The person examined could well be under age.
The next three age assessments were done on asylum seekers from Sudan, Sierra Leone and Senegal. On 5 December 1998 six African youth were examined. In three cases the bone age was determined to be 19 years, in two cases 18 years.
By a notification of the Federal Chancellery dated 4 June 1998 it was clarified that the age assessment by x-ray examination of the wrist is an illegal act. Even afterwards this method was used in the General Hospital Linz (AKH) on request of the Aliens Police. The examination request was based on a circular letter of the Ministry of the Interior dated 11 March 1999 reading as follows:
"The clarification of age can be done by any appropriate procedure, especially a x-ray examination of the wrist bones carried out by a physician"
At the instigation of asylum coordination Austria the lawyer Georg Bürstmayr initiated administrative criminal proceedings against the AKH Linz and contacted the Ministry of the Interior. In a new circular letter the Ministry of the Interior confirmed the inadmissibility of this method (information by Georg Bürstmayr, 20 August 1999). By instruction dated 21 June 1999 the x-ray department of AKH Linz was told to stop performing such examinations (information by Wolfram Kurzwernhart, 19 August 1999).
Especially in procedures pursuant to the Aliens Act, age assessments are currently carried out based on inspection by a public health officer. A young boy from Sierra Leone was interviewed at the district administration of Neusiedl. The responsible civil servant established by inspection that the boy was at least 16 years old and did not report to the Youth Office that a procedure pursuant to the Aliens Act was initiated.
b) To what extent does this conform to the Statement? Please outline in brief.
The problem mentioned in the Statement – separated children traveling with documents indicating incorrectly an age over 18 – has been observed in Austria only in individual cases. The use of falsified documents may lead to criminal persecution, even if refugees indicate at their first interview at the Federal Asylum Office that they entered Austria using such documents.
As a rule the authorities assume that the age indicated is not correct. The majority of separated children is undocumented at arrival. If the age has to be assessed, this should be done by independent pediatricians. Nobody should be forced to undergo medical examinations, the more so if these examinations are not appropriate considering the particular cultural background. It should be taken into account that age assessments don’t work with scientific precision and that a substantial margin of error has to be admitted.
c) Are any changes needed? In relation to any first principle of SGP?
It is not to be expected that the issue of age assessment will be settled once for all after the x-ray examinations of the wrist have been stopped (at least preliminary). Especially youth welfare agencies trying to develop better care offers and facilities will be tempted to protect themselves against misuse. Age assessments should be based on the existing UNHCR guidelines:
5.11 If an assessment of the child’s age is necessary, the following considerations should be noted:
a. Such an assessment should take into account not only the physical appearance of the child but also his/her psychological maturity.
b. When scientific procedures are used in order to determine the age of the child, margins of error should be allowed. Such methods must be safe and respect human dignity.
c. The child should be given the benefit of doubt if the exact age is uncertain.
In principle the information provided by the minor should be assumed to be true. Physical ageing can be accelerated under circumstances like hunger, war, poverty and child labour. Thus an age assessment based solely on appearance is subject to enormous sources of error.