Indispensable individual test

Indispensable individual test

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The situation must change “fundamentally”. Otherwise, Austria would maintain its veto against admitting Romania and Bulgaria into the Schengen area out of concern about irregular migration, Chancellor Karl Nehammer (ÖVP) emphasized at the weekend. After a visit to Bulgaria, Nehammer outlined what the fundamental changes needed should look like, along with Interior Minister Gerhard Karner. In addition to €2 billion from the EU Commission for the expansion of the Bulgarian border fence, the chancellor also demanded faster asylum procedures and more readmission agreements.

Nehammer and Karner also had a “rejection guideline” in mind for several months. This should make individual assessments superfluous for countries whose nationals have little chance of asylum. The mass influx directive, which took effect shortly after the Russian invasion of Ukraine and has since regulated the status of refugees from the war-torn country, is seen as a model. As a result, Ukrainians do not have to apply for asylum, but are automatically granted special displaced status, which includes access to the labor market, for example.

For Ralph Janik, who researches human rights at Siegmund Freud Private University, it is not clear what the two members of the ÖVP government really want to achieve. It is not possible to completely dispense with the examination of individual cases because this procedure would contravene not only the Austrian asylum law, but also the European Convention on Human Rights and the EU Charter of Fundamental Rights. “Therefore, we would be violating our own constitution, international treaties and EU laws,” explains Janik. The fact that Ukrainians can do without individual tests is because this decision was made in favor of refugees. “What we’re discussing are minimum standards. There’s always room for improvement,” says Janik.

Austria is already using fast-track procedures

Another possibility would be asylum procedures directly at the border, where applications are checked before asylum seekers can travel inland. According to Janik, several states, mainly those with external EU borders, would already do it that way. Austria also uses this procedure for airport applications.

Furthermore, Austria is already using fast-track procedures for people from normally safe countries of origin. As the Home Ministry announced in October last year, around 14,600 expedited procedures for people from India and Tunisia were negatively completed in the first nine months of 2022. In 70% of these procedures, the decision was taken within 72 hours.

However, all these cases still need to be examined individually – after all, people from basically safe countries can also be exposed to persecution due to special circumstances. “There is no prospect of asylum, zero percent”, says the specialist in international law.

This is also confirmed by an analysis of the 2021 asylum statistics: more than three-quarters of all positive asylum decisions concerned Syrians and Afghans. But there have always been individual cases when people from European countries were granted asylum. In the cases of a single-digit number of Albanians, Belarusians, Kosovars, Montenegrins, Swedes, Serbs, British and Ukrainians (before the Russian invasion in February 2022), a positive decision was made. And an Indian was also granted asylum in 2021 – while decisions for another 469 Indian nationals were negative.

Rejection at the legal border in the Spanish case

Every asylum claim must be verified in some way. Normally, migrants should not be turned away at the border to prevent them from applying for asylum. The European Court of Human Rights (ECHR) has repeatedly confirmed this in its judgments, for example in 2020 in a case where Poland repeatedly prevented Chechen families from crossing the Belarusian border.

An ECtHR ruling the same year that upheld Spain in the case of people from Mali and Ivory Coast who tried to scale the border fence in front of the Spanish enclave of Melilla caused a sensation. In the two enclaves of Melilla and Ceuta, there are opportunities to legally apply for entry at checkpoints in the border area, but the people in question tried to cross the border by force, justified the ECtHR.

According to Janik, the situation in Melilla and Ceuta is a special case, so the judgment cannot be applied “directly” to other external borders. However, the judgment also shows that ECtHR jurisprudence in such cases “is not always fully congruent and not nearly as strict” as is often assumed.