Workshop - Sarajevo, September 2011

1. 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

2. 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. What does irregular migration mean?

3. 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) Migration Types

4. 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.). Settlement and Residence Act (NAG)

5. 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“. Aliens‘ Police Act (FPG)

6. 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). Asylum Act (AsylG)

7. 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. Real Impact of Migration Legislation

8. Decisions on Visa Applications (FPG) Administrative Court and Constitutional Court Independent Administrative Senates only in case of “privileged third-country nationals" (certain relatives of citizens of the EEA, Switzerland and Austria) no ordinary remedy Diplomatic authority abroad

9. Decisions on Applications for Residence Titles (NAG) Administrative Court and Constitutional Court Federal Minister of the Interior may close procedures only on matters of form Diplomatic authority abroad accepts and requests applications to the provincial governor Provincial Governor

10. Decisions on Applications for International Protection (AsylG) Constitutional Court Asylum Court Federal Asylum Office (under the authority of the Federal Minister of the Interior)

11. Decisions on Termination of Residence (FPG) Administrative Court and Constitutional Court Security Directorates appeals against expulsion orders and residence bans of third-country nationals Independent Administrative Senates appeals of EEA-nationals, Swiss-nationals and “privileged third-country nationals“ appeals against return and entry-ban decisions Aliens’ police authority (Federal Police Departments, District Authorities, Municipal Authorities)

12. Decisions on Detention Pending Deportation (FPG) Administrative Court and Constitutional Court Independent Administrative Senates Aliens’ police authority (Federal Police Departments, District Authorities, Municipal Authorities)

13. Deportation (FPG) Administrative Court and Constitutional Court Independent Administrative Senates (complaints from abroad) Agents of the public Security Service (enforced with „direct powers of command and constraint")

14. 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 Representation

15. 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. Legal Advice (FPG/AsylG)

16. 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. Main Facts and Figures on the AOB

17. 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. Complaints relating to Aliens' and Asylum Law

18. 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”. Prospects for the Future

19. Thank you for your attention! Austrian Ombudsman Board Singerstraße 17, A-1015 Vienna phone: (+43) 1 51 505 135 email: claudia.marik@volksanwaltschaft.gv.at www.volksanwaltschaft.gv.at