Workshop - Sarajevo, September 2011

AUSTRIAN OMBUDSMAN BOARD

Workshop - Sarajevo, September 2011

“The Role of National Human Rights Structures in Protecting against all Forms

of Discrimination”

Irregular Migrants – Access to Remedies

Claudia Marik


What does irregular migration mean?

• Migration that occurs outside of the rules and procedures guiding the orderly international movement of people.

• Illegal stay means the presence on the territory of a state of a migrant who does not fulfil or no longer fulfils the conditions for entry, stay or residence in the receiving state.

• Challenges: increasing number of migrants in an irregular situation, smuggling of migrants, trafficking in human beings, violation of fundamental rights.


Migration Types

The „Alien Law Package 2005“ defines the legal status of aliens in three central acts:

• Settlement and Residence Act (NAG)• Aliens‘ Police Act (FPG)• Asylum Act (AsylG)


Settlement and Residence Act (NAG)

• Governs the issue, rejection and withdrawal of residence titles of foreigners who reside or want to reside in the federal territory for longer than six months, as well as the documentation of established rights of residence and settlement.

• Valid for almost all foreigners including third-country nationals, EEA-citizens and their family members.

• Regulates various specific purposes of residence (e.g. researchers, artists, employment, students and pupils, private purpose, family reunification, special protection, humanitarian grounds etc.).


Aliens‘ Police Act (FPG)

• Regulates all other stays – especially under six months – which do not fall within the scope of the NAG.

• Provides rules regarding the issue of documents to aliens, the grant of entry permits (visa), expulsion order, residence ban, return and entry-ban decisions, deportation and detention pending deportation.

• Contains specific procedural law which applies to the termination of residence regarding citizens of the EEA and Switzerland as well as “privileged third-country nationals“.


Asylum Act (AsylG)

• Establishes the legal conditions for asylum seekers, the status of refugees, subsidiary protection status and residence during the proceeding.

• Rejected asylum seekers are not entitled to any kind of residence permit and may be expelled and deported from Austria.

• Under the FPG and under the AsylG migrants without a residence title or rejected asylum seekers may be arrested and held in custody to ensure expulsion or forcible return to their country of origin (detention pending deportation).


Real Impact of Migration Legislation

• With the NAG the procedure for migrants has turned more complicated.

• Changes and amendments to existing laws with the intention to speed up procedures, but no decisive changes concerning regularisation.

• Persons are simply "tolerated” if deportation is either inadmissible due to non-refoulement provisions or if it is impossible for actual reasons. In case these reasons cease to exist the toleration also ceases.


Decisions on Visa Applications (FPG)

Diplomatic authority abroad

Administrative Court and Constitutional Court

no ordinary remedy

Independent Administrative Senates

only in case of “privileged third-country nationals" (certain relatives of citizens of the EEA, Switzerland

and Austria)


Decisions on Applications for Residence Titles (NAG)

Provincial Governor

Federal Minister of the Interior


may close procedures only on matters of form

Diplomatic authority abroad

accepts and requests applications to the provincial governor


Decisions on Applications for International Protection (AsylG)

Federal Asylum Office

(under the authority of the Federal Minister of the Interior)

Asylum Court

Constitutional Court


Decisions on Termination of Residence (FPG)

Aliens’ police authority (Federal Police Departments, District Authorities, Municipal Authorities)


Security Directoratesappeals against expulsion orders and

residence bans of third-country nationals


appeals of EEA-nationals, Swiss-nationals and “privileged third-country nationals“

appeals against return and entry-ban decisions


Decisions on Detention Pending Deportation (FPG)


Aliens’ police authority (Federal Police Departments, District Authorities, Municipal Authorities)



Deportation (FPG)


(complaints from abroad)

Agents of the public Security Service (enforced with „direct powers of command and constraint")



Legal Representation

• The obligation to be represented by a lawyer does not apply to administrative procedures and proceedings before the Asylum Court. The parties can represent themselves or be represented by persons who are not necessarily lawyers.

• The procedural law of the Administrative Court and the Constitutional Court on the other hand requires representation by a lawyer as regards to complaints against rulings. Persons not able to afford the cost of proceedings without causing a risk to his/her daily subsistence can receive legal-aid support.


Legal Advice (FPG/AsylG)

• Legal advice for persons in detention pending deportation (transposition of the EU-Return Directive).

• Legal advice during proceedings regarding return and entry-ban decisions as well as in deportations or in the exercise of direct power of command and constraint.

• Asylum seekers are to be supported by legal advisers during the admission procedure. Wherever possible, advisory support is also available after the admission procedure. In certain proceedings before the Asylum Court legal advisors are at the asylum seekers' disposal as well.

• The Asylum Act provides repatriation advice to asylum seekers.


Main Facts and Figures on the AOB

• Competent complaint handling for more then 30 years.• Independent, collegial und apolitical body. • Examines all alleged cases of maladministration in the

public administration. • Suggests legislative changes to the Parliament. • Complements to other existing review mechanisms

including political control, juridical control and financial control.

• Enhances not only the rule of law but a fair, citizen-oriented and efficient administrative system.

• Complaints can be launched with the AOB regardless of age, nationality or residence, whenever someone feels mistreated by a public authority.


Complaints relating to Aliens' and Asylum Law

• Rising number of cases in the sector of internal affairs.• Nearly tenfold increase in the number of complaints

about the Asylum Court in 2010 (length of proceedings).• Complaints about the Aliens' Police Authority (length of

proceedings).• Deportation of a family – unnecessary deployment of 16

armed officers.• Illegitimate imposition of custody – violation of the

constitutionally guaranteed right to personal freedom.


Prospects for the Future

• Motivation of States to reduce irregular migration: limit the number of irregular migrants and weaken criminal elements engaged in smuggling, trafficking and other crimes.

• Vulnerability of migrants in an irregular situation to exploitation and discrimination in key areas of social life (health, housing, education, social care, employment status, fair working conditions, access to remedies).

• Protection of fundamental rights. • Research project of the European Union Agency for

Fundamental Rights regarding “the situation of migrants in an irregular situation in the European Union”.


Austrian Ombudsman Board

Singerstraße 17, A-1015 Viennaphone: (+43) 1 51 505 135

email: [email protected]

Thank you for your attention!

Workshop - Sarajevo, September 2011

Documents

Transcript of Workshop - Sarajevo, September 2011