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Austria: Newly Proposed Measures on Asylum and Refugees

(Feb. 5, 2016) On January 20, 2016, the Austrian Federation and the Austrian states, as well as the municipalities and cities, came to an understanding on an upper limit of 127,500 refugees that will be allowed to apply for asylum in Austria over the course of the next four years. If implemented into binding legislation, the agreement would decrease the number gradually each year.  Additional measures would include stricter enforcement of entry checks at the borders and stricter repatriation policies for denied asylum applicants.  (Republik Österreich [Republic of Austria], Asylgipfel am 20. Jänner 2016, Gemeinsame Vorgangsweise von Bund, Ländern, Städten und Gemeinden [Asylum Summit on January 20, 2016, Joint Approach of the Federation, States, Cities, and Municipalities], Federal Ministry of Science, Research, and Economics website (Jan. 20, 2016).)

In addition, the Austrian Parliament is debating changes to the current legislative framework on asylum and refugees. The proposed amendment would provide refugees who are granted asylum a time-restricted residence permit of three years, with the option of an unlimited residence permit only after that initial period.  (Regierungsvorlage, Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFA-Verfahrensgesetz geändert werden [Government Bill, Federal Act that Amends the Asylum Act 2005, the Aliens Police Act 2005, and the Federal Office for Immigration and Asylum Procedure Act], art. 1 nos. 4 & 5, Austrian Parliament website.) Furthermore, family reunification for refugees awarded subsidiary protection would only be possible after a waiting period of three years, instead of the current one year.  (Id. art. 1 no. 9.)

If the circumstances for which asylum was granted have ceased to exist after the three years, proceedings to withdraw the asylum status will begin. In order to adequately evaluate the situation in the countries of origin, the draft act mandates an annual assessment of the situation in the primary countries from which refugees originate.  (Id. art. 1 no. 5.)  All amendments, if enacted, would have retroactive effect for applications filed after November 15, 2015.  (Id. art. 1 no. 18.)

Background

According to the monthly statistics of the Federal Ministry of the Interior, Austria received 81,127 asylum applications between January and November 2015, with 11,931 in November alone. Most of the applicants in November came from Afghanistan (5,395 first-time applicants), Syria (2,877), and Iraq (1,444).  The number of asylum applications has more than tripled since 2014 – an increase of 240%.  (Bundesministerium für Inneres [Federal Ministry of the Interior], Vorläufige Asylstatistik November 2015 [Preliminary Asylum Statistic November 2015], Federal Ministry of the Interior website (Nov. 2015), at 3 & 6.)

Under current asylum legislation, refugees whose asylum applications are approved receive an unlimited residence permit. (Bundesgesetz über die Gewährung von Asyl [Asylgesetz 2005] [AsylG 2005] [Federal Act Concerning the Granting of Asylum] [Asylum Act 2005] [AsylG 2005]], BUNDESGESETZBLATT [BGBl.] I No. 100/2005, § 2, ¶ 1, no. 15, REICHSINFORMATIONSSYSTEM.) The proposed change is in line with the Qualification Directive of the European Union, which requires residence permits granted to refugees to be valid for at least three years and to be renewable.  (Directive 2011/95/EU of the EU Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted, 2011 O.J. (L 337) 9.) Other EU Member States, such as Germany, have similar restrictions in place. (Residence Act [Aufenthaltsgesetz [AufenthG]] (Feb. 25, 2008, current to Sept. 2013), BGBl. I at 162, as amended, § 26 ¶ 1 sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Potential Legal Issues with an Upper Limit

It is unclear whether Austria as a Member State of the EU can unilaterally set an upper limit on the number of asylum applications it accepts. The President of the European Court of Justice, Koen Lenaerts, recently pointed out in an interview that “if an individual is entitled to political asylum, he or she has the right under EU legislation to be acknowledged as a refugee.  This is hard to reconcile with a number or an upper limit.”  (Marion Trimborn, Lenaerts: Asylrecht schwer vereinbar mit Obergrenze [Lenaerts: Asylum Legislation Difficult to Reconcile with an Upper Limit], NEUE OSNABRÜCKER ZEITUNG (Jan. 18, 2016).) The Austrian government has commissioned a legal opinion on the question of whether the proposed agreement would conform to international and European law.  (Press Release, Bundeskanzleramt [Federal Chancellery], Bundeskanzleramt: Rechtsgutachten heute in Auftrag gegeben [Federal Chancellery: Legal Opinion Commissioned Today], Federal Chancellery website (Jan. 25, 2016).)