Immigration detention in Austria, requirements, duration and what relatives can do right away

Immigration detention is the holding of a foreign national in order to secure proceedings for issuing a measure terminating residence, or to secure the removal itself. The legal basis is § 76 FPG (Aliens Police Act 2005). It is ordered by the Federal Office for Immigration and Asylum by way of a written detention order. It is therefore an administrative measure, not a court-ordered detention.

For those affected and their relatives this classification is the most important first point. Immigration detention has nothing to do with an accusation of guilt. It is not a punishment and does not presuppose a conviction. Its sole purpose is to make a planned removal from the country actually feasible. Anyone who confuses the three forms of deprivation of liberty loses valuable time with the wrong contact. An overview of pre-trial detention in criminal proceedings is provided on our topic page on pre-trial detention.

Immigration detention is carried out in the detention rooms of the regional police headquarters, the so-called police detention centres (§ 78 FPG). In organisational and atmospheric terms this is something different from a prison. For relatives it also means that visits, contact and information run through different bodies than in the case of criminal detention.

Immigration detention may not be imposed merely because removal proceedings are ongoing. § 76 FPG requires a concrete need for securing the proceedings. The Federal Office must explain, on the basis of the person and their previous conduct, why there is reason to fear that the person will evade the proceedings or the removal or substantially impede them. Generic wording cannot sustain a detention order.

In addition there is the principle of proportionality. Immigration detention is a measure of last resort and only lawful if its purpose cannot be achieved by a less restrictive measure. Before any order, the Federal Office must therefore examine whether, for example, a reporting duty or a directive to take up accommodation is sufficient. The more stable a person’s circumstances are, such as a fixed residence, reliable reference persons and cooperative conduct in the proceedings, the harder it is to justify a need for securing.

It is also essential that the purpose of detention is actually attainable. If it is clear from the outset that a removal cannot be carried out for legal or factual reasons, the detention lacks any basis. The Federal Administrative Court has made clear in numerous decisions that the authority must set out the concrete efforts to terminate residence and their prospects of success.

Instead of detention, the Federal Office may order a less restrictive measure under § 77 FPG. These include in particular the periodic reporting obligation at a police station, the directive to take up accommodation in specified premises and the lodging of an appropriate financial security. These measures achieve the same securing purpose with a markedly lesser interference with personal liberty.

For the defence, the less restrictive measure is the central lever. An application for a less restrictive measure under § 77 FPG can be filed with the Federal Office, and indeed in parallel with a detention appeal to the Federal Administrative Court. What is decisive for success is that the application is concretely reasoned: an address suitable for registration, a reliable reference person, where applicable a willingness to lodge a financial security and evidence of cooperative conduct in the proceedings so far.

For vulnerable persons, for example where there is an impairment of health, in the case of minors or in special family situations, the proportionality assessment carries additional weight. Here the ordering of a less restrictive measure is often the legally required alternative.

The maximum duration of immigration detention is governed by § 80 FPG. As a rule, detention may not exceed four months within a period of two years. Subject to additional conditions, an extension up to a maximum of 18 months is possible, for example where the person concerned fails to cooperate in obtaining travel documents, where the home state delays issuing documents or where the necessary travel documents must first be procured.

The authority may not circumvent the maximum duration by artificial segmentation, that is, it may not formally end a detention phase and shortly thereafter begin a new one in order to undercut the time limits. If the maximum duration is reached without a feasible removal, the detention must be ended.

In addition, § 80 (6) FPG provides for a periodic review of the detention by the Federal Administrative Court. Where detention lasts longer than four months, proportionality must be reviewed of the court’s own motion and thereafter again at intervals of eight weeks. This review runs independently of any appeal and is a second safety net in favour of the person concerned.

At the start there is regularly the arrest or apprehension by officers of the public security service. Even at that moment the person concerned has the right to notify a person of trust and a legal representative. Persons holding foreign nationality additionally have the right to consular notification, that is, the notification of the representative authority of the home state.

There follows the detention order of the Federal Office under § 76 FPG. This order is the legal basis of the detention and the point of departure for challenging it. It must give concrete reasons for the need for securing and for proportionality. Once the person concerned is then held in a police detention centre, immigration detention in the narrower sense begins.

From that point two tracks of legal protection run in parallel. First, the detention appeal to the Federal Administrative Court, by which the lawfulness of the detention is reviewed. Second, the periodic review of the court’s own motion after the four-month mark has been exceeded. How the appeal works in detail is set out in the article on the detention appeal to the Federal Administrative Court.

The first step is to establish the place of detention. Ask which police detention centre the person is being held in and note the file number of the Federal Office as soon as it is available. Both are needed for every further submission and for making contact.

The second step is prompt legal representation. Immigration detention is an urgent matter of aliens law in which every day counts. A lawyer can inspect the file, examine the detention order, file an application for a less restrictive measure under § 77 FPG and, where appropriate, lodge the detention appeal.

The third step is gathering the exculpatory documents. Anything that proves a stable life situation is helpful: an address suitable for registration, the willingness of a reliable reference person, evidence of family ties in Austria and, where relevant, indications of health impairments or special need for protection. This evidence supports both the application for a less restrictive measure and an appeal.

The fourth step concerns contact. Clarify the visiting arrangements and telephone options with the respective police detention centre. Contact with the legal representative is to be kept separate from this and enjoys special protection.