Detention and containment on the rise in Austria

By Ivan Josipovic (Austrian Academy of Sciences)

Border management and migration controls have become a major political concern in Austria, particularly after the long summer of migration in 2015. The politicization of territorial borders led to a repeated prolongation of Schengen exemption provisions allowing for systematic border controls at two major checkpoints towards Slovenia and Hungary. Politicians both within office and in the opposition repeatedly called for action in order to “protect our borders”.  In 2018, the demonstration of sovereign power culminated in a public simulation of mass immigration with around 500 police officers training to hold back 200 background actors at the border checkpoint Spielfeld. Yet, as border regime scholars have pointed out over the last decades, border controls are becoming increasingly de-territorialized as national sovereignty erodes through increased connectivity and international norms. As a consequence, processes of bordering entail new spatial strategies of which effective and efficient return practices present a centrepiece.  

Containment in the name of public order

Thereby, detention and different forms of containment have come to be seen as policy solutions providing mechanisms to enable forced and soft removals but also as a way of dealing with delinquent asylum seekers or persons considered to be in a risk group. In this regard, Austrian policy makers have gradually expanded controls on the residence and movement beyond the group of persons in the admissibility procedure for international protection. Since the 2017 amendment act, persons who have been admitted to the asylum procedure can be legally ordered to remain within Basic Welfare Support Accommodations for reasons of public interests, public order or a fast proceeding of an application. This can apply to delinquent asylum seekers or persons who have fallen under criminal suspicion. A controversial case of unlawful implementation of such provisions concerns the accommodation of minors in the border town of Drasenhofen in Lower Austria. A 2018 media report on the containment of under-age asylum seekers, beneficiaries of asylum, and rejected asylum seekers, of which some were delinquent, led the Children's and Youth Advocate's Office of Lower Austria to conduct an investigation. It concluded that the facility surrounded by barbed wire and equipped with private security staff was not suitable for minors, leading to an immediate closure.

Return centers

The same amendment act enabled authorities to order rejected asylum seekers to move to newly established return centers. Currently, four facilities that have previously been used as federal reception centers are run for this purpose, all of which are located in remote areas. The continuing payment of social aid benefits until the time of departure is conditioned by the move to the new facility and the engagement in intensive return consultation. Rejected asylum seekers may furthermore only reside within borders of their assigned district and can also be ordered to take shelter in their accommodation.  

Tightened detention

Beside this, provisions on detention pending return were further tightened with an increased maximum duration, as well as new grounds for and forms of detention. Legal options of extending detention to the EU-limit of 18 months were created. This may apply in cases where identity cannot be established, cooperation on travelling documents is refused or if a person resists coercive policing. Beside detention pending return, authorities can place apprehension orders which cover detainment of up to 72 hours, mostly shortly prior to a forced removal. This form of detention does not require any references to risks of abscondence and is usually applied if a person does not comply with obligations to return within the given time limit. In this vein, provisions for detention pending repulsions (those are immediate returns after irregular entry into the country and inadmissibility to the asylum procedure) were also tightened with increased maximum duration from initially five to 14 days.

Preventive detention

Following a deadly knife attack committed by an asylum seeker in early 2019, the Ministry of Interior presented its most recent plans to introduce "preventive detention for dangerous asylum seekers". This would allow “danger prognosis" to be conducted directly after the application for international protection. It could be based both on information provided by the refugee and on further research by the authorities in databases or on the Internet. The introduction of such "preventive detention" for asylum seekers would require the inclusion of an additional paragraph in the article on the protection of personal freedom in the Federal Constitution Act. Whether the federal government will find oppositional support in parliament for this project remains yet to be seen.