UNHCR says Austrian legislation may lead to breaches of UN Convention

8 October 2003

GENEVA - The UN refugee agency said today that it was concerned that a number of proposed amendments to the Austrian asylum law could lead to violations of the 1951 UN Refugee Convention and of international and European human rights law.

UNHCR also said that if the amendments - due to be decided on by a key Austrian parliamentary committee next week - are then adopted unchanged by Parliament, they would be among the most restrictive pieces of legislation within the EU, and could also have a negative impact on the vital EU harmonization process that is currently under way.

Although certain of the restrictions contained in the first draft of the law were removed during the summer, UNHCR maintains a number of serious concerns about the current draft.

Two of the most problematic amendments for the UN refugee agency concern the appeal system. Given that one in five cases that currently go to appeal in Austria are subsequently found to be refugees, UNHCR believes that the proposed legislation could well result in cases of "refoulement" (the technical term for the forced return of a refugee directly, or indirectly, to a risk of persecution in their home country).

"Appeals are an essential means to ensure that initial mistaken decisions can be corrected," said UNHCR's most senior legal official, Erika Feller. "To ensure that the final decision is indeed the correct one, appeals must be able to review all the relevant facts, as well as points of law."

Under one of the draft amendments, the submission of new evidence and motives for flight at the appeal stage is only permitted in very tightly circumscribed circumstances. In practice, this means that refugees, who have not immediately laid out all their reasons for flight, may end up being returned to a dangerous situation.

Victims of torture, or of gender-based persecution, including sexual assault, are often understandably hesitant to provide details of the ordeal they have suffered, either because of feelings of pain and humiliation, or because of strong cultural or religious taboos. Under the amendment to the Austrian law, only trauma that is "medically certifiable" will be accepted as a reason for submitting new facts during the appeal stage - but trauma is a condition that is notoriously difficult to diagnose or measure.

"There are many recognized refugees in Europe today who were only recognized after important new facts were coaxed out of them during an appeal process," said Feller. "This will not be the case in Austria, if these amendments go through parliament. The chances of people who definitely should be recognized as refugees slipping through the net will increase substantially, with possibly tragic consequences."

Moreover, a very broadly defined category of asylum seekers will - without exception - not have any right to remain in Austria during their appeal. This could have disastrous consequences for some of the individuals concerned. In some cases - most likely involving asylum seekers at airports - even those who are permitted to remain while their appeal is heard, may already have been deported by the time the permission to remain is granted.

Another restrictive measure concerns the absolute refusal to accept any asylum claims at land borders. Under the current draft of the law, even refugees who are clearly in need of international protection will be refused access to the Austrian asylum procedure. This may in some cases lead to chain deportations and ultimately "refoulement."

"Non-refoulement is the most basic principle of international refugee law," said Feller. "It is not only included in the 1951 Convention, but also in international human rights law. We fear the proposed amendments to the Austrian law could lead to refoulement in a number of different ways. Of these, refusal to accept any asylum claims at the border is one."