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Austria: State of Emergency Legislation Being Considered to Limit Refugee Numbers

(Apr. 19, 2016) A legal opinion commissioned by the Austrian government and delivered in March 2016 found that the plan of the Austrian Federation, states, municipalities, and cities to impose an upper limit on the amount of refugees, if the limit is understood as an absolute number, violates international and European Union law. According to the legal opinion, Austria would be obligated under EU law to prove that an upper limit is an appropriate, necessary, and proportionate means to maintain law and order and to safeguard internal security in Austria.  (Walter Obwexer & Bernd-Christian Funk, Gutachten: Völker-, unions- und verfassungsrechtliche Rahmenbedingungen für den beim Asylgipfel am 20. Jänner 2016 in Aussicht genommenen Richtwert für Flüchtlinge [Legal Opinion: International, European Union and Constitutional Law Framework for the Upper Limit on Refugees Agreed upon at the Asylum Summit on January 20, 2016] (Mar. 29, 2016), Austrian Federal Chancellery website.)

The Austrian government is therefore exploring the adoption of state of emergency legislation as an alternative to imposing a limit on the absolute number of refugees. (Verschärfungen im Asylrecht: Innenausschuss holt Stellungnahmen ein [Tightening of Asylum Law: Committee of the Interior Solicits Opinions] (Verschärfungen im Asylrecht), Parliamentary Correspondence No. 372 (Apr. 14, 2016), Austrian Parliament website.)


On January 20, 2016, the Austrian Federation and the Austrian states, as well as the municipalities and cities, had come to an understanding on an upper limit of 127,500 refugees that would be allowed to apply for asylum in Austria over the course of the next four years, with gradually decreasing numbers each year. (Jenny Gesley, Austria: Newly Proposed Measures on Asylum and Refugees, GLOBAL LEGAL MONITOR (Feb. 5, 2016).) Because the legality of such a measure was unclear, the Austrian government had commissioned the abovementioned legal opinion in January 2016. (Press Release, Bundeskanzleramt [Federal Chancellery], Bundeskanzleramt: Rechtsgutachten heute in Auftrag gegeben [Federal Chancellery: Legal Opinion Commissioned Today], Federal Chancellery website (Jan. 25, 2016).)

Legislative Measures on State of Emergency in Reaction to the Legal Opinion

Instead of imposing an upper limit on the number of refugees, the Austrian government proposed denying refugees the right to apply for asylum if the government concludes due to forecast data that the increasing number of asylum applications poses a threat to public order or national security (state of emergency). Exceptions would be granted for refugees who have close relatives in Austria or those who would be subjected to torture or other inhuman treatment if they were to be deported.  (Verschärfungen im Asylrecht, supra.)

The proposed stricter rules were merged with another draft act that has been debated by the Austrian Parliament since January 2016 and that replaces the unlimited residence permit previously offered to refugees with a time-restricted residence permit of three years. (Gesley, supra.)  A vote on the proposed state-of-emergency measures is scheduled at the National Council, the lower house of the Austrian Parliament, for late April.  (Verschärfungen im Asylrecht, supra.)