FECL 45 (July 1996):

CONTROVERSIAL REFORM OF AUSTRIAN FOREIGNERS LEGISLATION

In early 1995, Caspar Einem, a "new generation" Social Democrat credited for his liberal views on immigration, replaced the notorious hard-liner Franz Löschnak as Austria’s Interior Minister. When Einem went public with plans for a sweeping reform of Austria’s obsolete and discriminating foreigners and refugee legislation, he at once came under massive attack from conservative and nationalist circles, including senior officials of his own department.
One year later, our correspondent Helga Schwarz asked Michael Genner (MG.), a legal counsel for refugees working with Asylkoordination Österreich, an NGO in support of asylum seekers, for his assessment of Minister Einem’s reform.

 

FECL: Caspar Einem’s reform seems to have stalled. Due to the fall of the previous red-black coalition government, the Parliament did not vote for Einem’s law package in late 1995, as originally planned. Although the elections brought the "red-black" coalition [the coalition government formed by the Social Democrats (SPÖ) and the Christian conservatives (ÖVP)] back to power and Einem remained as an Interior Minister, controversy about his reform plans has only increased in 1996. Einem has come with two amended draft Bills in March and May which have disappointed human rights and asylum NGOs. Has the Minister finally bowed to the xenophobic circles?

MG: Austrian human rights groups were very hopeful after the nomination of Caspar Einem last year. However, although a year has passed, the law is still the same as before and nothing, or very little, has changed as regards the composition, the mentality and the practice of the civil servants apparatus under the Interior Minister. Mr Einem’s first draft proposal for a reform of foreigners legislation which was not voted because the elections were advanced, was a step in the right direction.. A new draft proposal of March 1996 was acceptable too, except for a questionable "third safe country" clause. However, in May, Einem suddenly held a press conference together with the leader of the ÖVP’s parliamentary group. This latest proposal brought a massive change for the worse, as compared to the earlier drafts, and even to prevailing unacceptable practice.

Two provisions of the draft, in particular, are totally unacceptable to NGOs. The first states that an asylum application may be rejected as "manifestly unfounded", if it does not meet the criteria of the Geneva Refugee Convention or if the applicant is manifestly untrustworthy. This sort of motivation of rejections is of course widely used already now. However, for the time being, legal remedy against such decisions is still available. The new draft abolishes this legal protection. According to the new draft law, asylum seekers have a right to stay in the country pending a decision on their application - a change much praised by the government. However, another provision of the new draft says that, if an asylum application is rejected as "manifestly unfounded" in a fast-track procedure, the applicant is also denied provisional stay. According to the new draft, such decisions must be appealed against within 48 hours and are decided upon within four days. Thus, an asylum procedure would take no more than six days. The reason for this is that Hungary and other countries are not obliged to readmit asylum seekers who have stayed in Austria for more than a week. That is why the authors of the draft invented what I would call a fast-track "prevention of asylum procedure".

We are completely aware, that practically all of our clients would have their applications turned down according to this scheme. Recently, a group of Afghan women with small children arrived in Austria. Their applications were all turned down. The grounds given were identical in all decisions: They had fled from a civil war situation "only" and therefore were not "refugees" under the Geneva Convention. One of the women had fled, because her husband had been murdered. The assailants had cut off his head, his arms and legs, torn out his eyes and placed all this in front of his wife’s house door. We appealed against the negative decision. Under the new draft law, we would have only 48 hours to do so, and quite probably we would never see the applicant and could not do anything at all.

This is why all NGOs massively opposed this proposal, and it was eventually withdrawn - partly because of our protests, but in the first line because of criticism of the Right, as well as the unions and the Chamber of Labour, which feared that some of the more liberal provisions of the foreigner law would weaken Austrian citizens’ position on the labour market. The government also was afraid of Jörg Haider, the leader of the nationalist and xenophobic "Freedom" Party. Haider threatened to launch a referendum campaign against Einem’s reform. Elections for the European Parliament and the Vienna City Council are taking place in October, so the Government wanted to put an end to the heated public debate and propose a new draft after the elections.

 

FECL: Was the provision on "manifestly unfounded" applications introduced with a view to adapting to Schengen practice at a time when Austria is preparing for the implementation of the Convention?

MG: Already under its previous Interior Minister, Löschnak, Austria was pioneering European harmonisation of asylum law along the most restrictive lines. And this is continuing now. But we should not forget that an unstable situation has arisen in Austria. On the one hand, the human rights movement succeeded through years of massive campaigning in forcing Mr Löschnak’s resignation and obtaining the nomination of an Interior Minister with a liberal reputation. On the other hand, the political pressure of the Schengen Group is obviously enormous. In my opinion, it is not certain yet, how this confrontation will end.

I do not believe that Austria will necessarily have to play the role of an eastern watchdog of "Fortress Europe". Austria, it is true, was among the first countries to introduce restrictive laws, but Löschnak’s fall and the planned change of legislation could also result in a roll-back, with Austria becoming a pioneer of liberalisation on an international scale. This is what we are struggling for.

 

FECL: You still seem to attach some hope to Caspar Einem’s reform. Can you name some positive elements in his most recent draft proposal?

MG: Yes. For example, asylum seekers who are not considered refugees as defined by the Convention can be granted a de facto refugee status, if sending them back to their country of origin would constitute a violation of the principle of non-refoulement, or if their return is unreasonable considering the political situation in their home country. In practice, this category existed already before, but the draft establishes a legal title to de facto status. NGOs, however, demand that this legal title comprise a secure social status. They further demand that the de facto status be granted not only ex officio, but also upon application according to a fair procedure.

Another improvement concerns the right to family reunion. Asylum could be extended to relatives of a recognised refugee other than just spouses. And finally: For eight years (previously five years), refugee status cannot be withdrawn on the grounds that the situation in the country of origin has improved.

Even the "third safe country" provision has been softened down a bit in so far as it shall be examined whether a third country actually grants the asylum seeker concerned stay and access to a fair asylum examination procedure. In the present law it says that an application must be rejected even if an applicant only travelled through the third country in transit.

With regard to residency law, the most important improvement is that adolescent "second generation" immigrants may no longer be expelled. This is, indeed, substantial. Also guest workers shall have a right to bring their family to Austria. This particularly outraged the far-right xenophobics. They claimed that this would result in masses of foreigners pouring into the country, at a time when many Austrians were without a job. Very justly, Interior Minister Einem has always insisted on the need to link the right to work to the right to residency. In other words, anybody legally residing in Austria must automatically also be authorised to work. This means the abolition of the Law on the Employment of foreigners (Ausländerbeschäftigungsgesetz) which privileges Austrian citizens on the labour market. Yet, with this position, Einem has run into fierce resistance from the unions and the so-called Minister of Social Affairs.

 

FECL: Einem likes provocation. For example, he maintains stubbornly that Austria is a country of immigration. This in an act of courage on the part of an Interior Minister and considering today’s political climate.

MG: Einem is courageous on the one hand, when he makes remarks that question existing regulations and habits. Yet he made one big mistake. He was not courageous enough, or he gave up to soon. He always refrained from purging his department of blatantly disloyal civil servants. After Mr Löschnak’s fall, we repeatedly demanded a thorough reform of the civil servants apparatus. This meant no less than purging the Interior Ministry’s bureaucracy of those racist and anti-constitutional elements who tried to oust Einem from office immediately after his nomination and with the enthusiastic support of Mr Haider and the Viennese tabloid, Die Kronenzeitung. This was actually little less than a coup attempt, thwarted only thanks to massive demonstrations on 1 May 1995 (see FECL No.34, p.3). Einem failed to get rid of these people. In such dangerous situations, mistakes made out of good nature often prove to be the worst.

We did get rid of one extremist and in the asylum authorities. He was the former director of the Vienna asylum office and he was a candidate for the directorship of the Federal Office for Asylum. At the decisive moment, we presented Minister Einem and the public with a comprehensive dossier. The man did not obtain the post, he disappeared from the asylum authorities as a whole and is now administering the law on war weapons exports. Of course, he can do a lot of harm there, but at least he no longer deals with refugees. In his place, Wolfgang Taucher, a former head of the legal department of the catholic charity, Caritas, has become the head of the Federal Office for Asylum. This is an improvement, indeed. However, too many other civil servants are continuing to do mischief in Mr Einem’s department.

 

FECL: Does this not indicate that the Interior Minister lacks support within the ranks of his own party an70d in the coalition government?

MG: Certainly. Within the SPÖ (Social Democrats) he represents minority positions. Nonetheless, he did very well in the elections for Parliament, although he was placed at the bottom of the list of candidates on his party’s voting-papers. He was actually voted by direct mandate. The Social Democrats increased their share of the vote from 31 to 38 per cent in these elections, but they should be aware that these were "lent" votes. They got them, because people were afraid of a conservative-nationalist coalition (ÖVP and Haider’s Freedom Party) and because they wanted a change of foreigner law. That is what Einem promised when he became Minister. He presented his first proposal just before the advanced elections were announced, so he was bound to fail that time. But now, we must demand that the Social Democrats fulfil their promise.

 

Abridged English version of an Interview by Helga Schwarz, Vienna.