Alternatives to immigration detention in Austria: the more lenient measure under section 77 FPG

The more lenient measure ties in with the grounds for detention. Only where a ground for detention under section 76 FPG exists does the question arise by which measure the securing purpose is achieved. If there is reason to assume that this purpose is preserved without custody too, the Federal Office must order a more lenient measure under section 77 FPG. Detention is thus not the starting point but the sharpest stage, which applies only where milder measures do not suffice.

The law expressly names three more lenient measures: accommodation in rooms designated by the Federal Office, a periodic reporting obligation at a service unit of a provincial police directorate, and the deposit of a financial security. These measures leave the person concerned at liberty while securing the procedure. Which measure is ordered depends on what achieves the securing purpose proportionately in the individual case.

A special barrier applies to minors of mature age. For them more lenient measures must be applied with priority, unless special circumstances stand against it. In this way the law takes account of the fact that detention affects young people particularly hard and that proportionality carries even greater weight here.

The periodic reporting obligation requires reporting at set intervals to a service unit of a provincial police directorate. Section 77 FPG sets a limit here: the interval may not fall below 24 hours. Accommodation means taking up residence in rooms designated by the Federal Office. The financial security is deposited and is available for securing the procedure.

For periods of accommodation a separate rule on duration applies. Section 80 FPG is to be applied with the proviso that the maximum duration is doubled. The more lenient measure of accommodation is thus limited in time differently from detention itself. Anyone who receives a more lenient measure should know the exact content of the condition, that is the reporting interval, the designated rooms or the amount of the security.

All more lenient measures presuppose the cooperation of the person concerned. If they do not meet the obligations or fail to follow a summons without sufficient excuse, detention must be ordered under section 77 FPG. The more lenient measure is therefore not a matter of course but requires reliable conduct. Anyone who misses a report or leaves the assigned accommodation risks the milder measure turning into detention.

Proportionality is the standard by which the choice between detention and a more lenient measure is decided. Detention may only be the last resort. As long as there is reason to assume that the securing purpose can be achieved by a reporting obligation, accommodation or a security deposit too, the more lenient measure must be ordered. The Federal Office must make this weighing in every case.

Where detention was ordered nonetheless, that can be reviewed. With the detention appeal the custody is brought before the Federal Administrative Court. The court examines whether a ground for detention exists and whether a more lenient measure would not have sufficed. The most effective approach often lies not in disputing the ground for detention but in showing that a more lenient measure achieves the purpose just as well and that detention is therefore disproportionate.

In practice it is worth documenting the personal circumstances early, such as fixed accommodation or the willingness to comply reliably with a reporting obligation. These circumstances support the application for a more lenient measure and, if detention has already been imposed, carry the argument in the detention appeal.