Austria

Austria’s accession record to relevant human rights treaties is generally good, but it retains several significant reservations to statelessness-specific instruments, which impact on the right to a nationality. Some data on the stateless population in Austria is available, but different nationality categories are applied inconsistently by different authorities, so its reliability is limited.

Austria lacks a definition of a stateless person and a procedure to determine statelessness in domestic law, although there are other administrative procedures through which statelessness may be identified. However, none of these lead to legal residence status nor rights solely on grounds of statelessness, and there are gaps in procedural safeguards and protection. There are also gaps in the framework to prevent the arbitrary detention of stateless people, including a lack of consideration of statelessness in the decision to detain, and issues with the implementation of procedural safeguards.

On the prevention and reduction of statelessness, Austrian law establishes some partial safeguards. The Austrian Citizenship Act was amended in March 2022 to allow children born stateless in Austria to apply for nationality over a three-year period, bringing the provision in line with the 1961 Convention. However, there are still significant gaps in safeguards to prevent childhood statelessness.  Foundlings only acquire Austrian nationality up to the age of six months and jus sanguinis provisions for children born to Austrian nationals abroad are discriminatory. Birth registration law and practice are generally good and do not create a risk of statelessness. However, legal and practical barriers exist for stateless people to access late birth registration.

While the legislation largely prevents statelessness as a result of loss and deprivation of Austrian nationality, some gaps exist in line with Austria’s reservations to the 1961 Convention and the European Convention on Nationality. A landmark judgment from the Court of Justice of the European Union in January 2022 highlighted the limits of Austria’s ‘single nationality’ approach. Until recently, statelessness in Austria mainly occurred in a migratory context, but reports have shown that over 70% of people registered as stateless or undetermined nationality were born in Austria, a percentage that has sharply increased over the past five years. 

Posljednje ažuriranje: 
Feb 2023
Stručnjak/ci za zemlju: 

Leonhard Call-Blaßnig, ENS Individual Member

Dodatni izvori

SREDSTVA PROCJENE

++POZITIVNO
+ DJELOMIČNO POZITIVNO
+-POZITIVNO i NEGATIVNO
- DJELOMIČNO NEGATIVNO
--NEGATIVNO

Dodatne informacije

-NORME i DOBRA PRAKSA

 

Međunarodni i regionalni instrumenti

Assesses whether countries are State party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Austria is state party to all relevant international and regional instruments, including the four statelessness-specific conventions. However, it retains significant reservations to these, which impact substantially on the rights of stateless people and the right to a nationality. Austria’s reservations to the European Convention on Nationality are particularly far-reaching, permitting gender discrimination in the acquisition of nationality by descent; limitations on the acquisition of nationality by foundlings; no facilitation of naturalisation for stateless people; and deprivation of nationality resulting in statelessness in some cases. Furthermore, international law does not have direct effect in Austria, and several important international standards have yet to be implemented in domestic law.

  • Austria is State party to the 1954 Convention, but it maintains a significant reservation to Article 27 (Identity papers). 
  • The Convention does not have direct effect and although some rights could already be found in national law at the time of accession, no further amendments have been made since accession to incorporate the Convention into domestic law.
  • Austria is State party to the 1961 Convention, but it maintains two significant reservations to Article 8(3)(a) permitting deprivation of nationality even if it results in statelessness where a person voluntarily enters the armed forces of another State.
  • The Convention does not have direct effect, and although the Austrian Nationality Act of 1985 enacts many of its provisions, there are legal and/or practical barriers to the realisation of some rights protected under the 1961 Convention.
  • Austria is State party to both Council of Europe conventions on statelessness, the European Convention on the Avoidance of Statelessness in Relation to State Succession, and the European Convention on Nationality (ECN). 
  • However, Austria retains 11 reservations (and made three declarations at the time of accession) to the ECN. The reservations are significant and effectively allow for gender discrimination in the acquisition of nationality by descent; a six-month age limit on the acquisition of nationality by foundlings; no facilitation of naturalisation for stateless people; and deprivation of nationality resulting in stateless in some cases.
  • Austria is bound by the EU Returns Directive, and is State party to all other relevant international and regional instruments, but it retains some reservations, in particular in relation to criminal proceedings (for example, to the International Covenant on Civil and Political Rights) and freedom of expression (for example, to the Convention on the Elimination of All Forms of Racial Discrimination).

Podaci o stanovništvu bez državljanstva

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries, and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

There are several partial sources of disaggregated data on stateless people in Austria, including the last (2011) census, the Central Register of Residents, and data on naturalisations, births, deaths, and residence permits. The Ministry of Interior also reports asylum data under the category ‘unknown nationality’, while the Federal Office for Immigration and Asylum reports data under the category ‘stateless’. The Ministry of Interior also records the nationality of immigration detainees, but it does so only in the context of parliamentary requests and not proactively. There is no statelessness determination procedure in Austria nor any coherent and uniform guidance on how to apply the different nationality status categories in the data, so they are applied inconsistently and vary from one authority to another.

  • There are several sources of disaggregated statelessness population data in Austria, including the 2011 census (5,289 people recorded as 'stateless', of 'undetermined' or 'unknown' nationality); the  Central Register of Residents (4,736 'stateless', 798 'unknown nationality' and 14,327 'undetermined nationality' as of 1 Jan 2023); Statistik Austria data on naturalisations (total 609 between 2011-2021, of which 539 'stateless', 49 'undetermined nationality' and 21 'unknown nationality' (of which 232 were born in Austria)); births (541 'stateless', 'unknown' or 'undetermined' nationality between 2013-2018); deaths (583 'stateless', 'unknown' or 'undetermined' nationality between 2012-2018); and information provided by UNHCR on stateless persons residing in Austria with a residence permit (3,219 as of 2022).
  • The data in the Central Register of Residents is disaggregated by age (over 76% are children under 18), gender (46% are women/girls) and place of residence (over 73% reside in Vienna).
  • However, there is no statelessness determination procedure nor any guidance on how to apply the different nationality status categories, so they are applied inconsistently and vary from one authority to another. 
  • Ministry of the Interior data reports that 694 people of unknown nationality (including stateless persons) applied for asylum in 2022. Statistics also record that 374 stateless persons were granted protection; 112 were issued a final return decision; and 87 received a negative Dublin procedure decision in 2022.
  • UNHCR estimated that 2,467 stateless refugees and beneficiaries of subsidiary protection were living in Austria at the end of 2015. 
  • UNHCR relies on data from Statistik Austria and the Ministry of Interior and estimates that all those included in the three categories (stateless, undetermined, or unknown nationality) may be at risk of statelessness. 
  • A mapping study on Statelessness in Austria was published by UNHCR in 2017. 
  • The Ministry of Interior previously reported under the distinct categories 'stateless' and 'unknown nationality' in its asylum data, but the two categories were merged into one ('unknown nationality') in 2015.
  • The Ministry of Interior records the nationality of immigration detainees but it does not publish statistics on people held in immigration detention. 
  • Data from parliamentary inquiries shows that in 2021, 15 stateless people and 33 persons with unknown nationality were held in immigration detention; and from January to August 2022, 3 stateless people and 13 persons with unknown nationality were held in immigration detention.

Utvrđivanje bezdržavljanstva i statusa

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination procedure (SDP) leading to a dedicated stateless status. If an SDP is not place, it assesses whether there are other procedures in which statelessness can be identified or other routes through which stateless people could regularise their stay or access their rights. Countries are subdivided in three groups to enable comparison between those with an SDP leading to protection, those with other procedures, and those with a statelessness status but no clear mechanism to access protection. The existing procedures and rights granted to stateless persons are examined and assessed against international norms and good practice. Assesses whether stateless people fleeing war have access to temporary protection.

There is no definition of a stateless person in Austrian law, and the definition of the 1954 Convention has not been transposed into national law. There is no statelessness determination procedure. Statelessness may be identified through other administrative procedures, including international protection or the procedure for acquiring a residence permit, ‘Fremdenpass’ (foreigners’ passport) or ‘tolerated stay’. However, none of these leads to a residence permit or rights on grounds of statelessness. Different authorities at the municipal, regional, and federal level are responsible for procedures in which statelessness may be relevant, but there is no public information nor instructions for authorities on how to identify or assess statelessness. The law does not establish what the standard of proof is, but there is jurisprudence on the matter. Procedural safeguards such as access to legal aid, interviews and interpreting vary depending on the procedure. Without legal residence on another basis, stateless people have access only to emergency medical care and primary education.

  • There is no definition of a stateless person in Austrian law, apart from the definition in the 1954 Convention, which Austria is a party to but does not have direct effect in national law and has not been transposed.
  • In 2023, the Federal Agency for Reception and Support Services (BBU), which also provides free legal aid in asylum and immigration procedures, is providing four full-day training courses on statelessness for their legal counsellors. No information is available about any other training on statelessness for government bodies or the judiciary.
  • UNHCR Austria occasionally facilitates conferences and lectures on statelessness for NGOs and lawyers, particularly in the follow-up to its mapping study.
  • There is no dedicated statelessness determination procedure (SDP) in Austria, but statelessness may be identified in the context of other administrative procedures.
  • In 2011, Austria pledged its readiness to review implementation of the 1954 Convention in line with UNHCR guidance, but it is yet to take any further action towards drafting legislation for an SDP.
  • There are three possibilities for stateless people to regularise their stay in Austria, but none of these has the stated objective of determining statelessness. These are: an application for international protection, naturalisation, or a residence permit (generally from outside Austria).
  • Statelessness may also be identified in administrative procedures such as an application for a 'Foreigners' Passport' (Fremdenpass) for legally residing stateless people (or those with undetermined nationality) without a valid travel document, a ‘Tolerated Stay Card’ (Duldungskarte) in cases of non-removability, or in the context of civil registration procedures. People granted Tolerated Stay are not issued a residence permit, although they may be able to obtain one after a year with Tolerated Stay. Procedures to obtain Tolerated Stay are usually lengthy and have a high threshold of proof. The person must demonstrate that they are un-removeable due to no fault of their own.
  • None of these procedures provide for a right of residence based on statelessness alone, and the enjoyment of rights is subject to the same requirements as for other foreigners. 
  • Stateless people may be exempt from the requirement to produce documents that are normally required but are unavailable to them, such as passports and birth certificates.
  • There is no obligation in law to consider a claim of statelessness within another procedure, no instructions on how to make a claim for statelessness, and little training on statelessness for government bodies, although the Federal Agency for Reception and Support Services (BBU), which also provides free legal aid in asylum and immigration procedures, is providing four full-day training courses on statelessness for their legal counsellors in 2023.
  • Procedures are conducted by various competent authorities: asylum and return procedures, and applications for a Fremdenpass are conducted by the centralised Federal Office for Immigration and Asylum (BFA), but provincial governments and respective offices at local level conduct naturalisation procedures. 
  • Civil registration offices generally cooperate with the BFA on the civil status cases of people who applied for international protection or are in a return procedure. Civil registrars usually seek advice from the legal units of the respective provincial governments in cases of stateless people.
  • The BFA and Federal Administrative Court (BVwG) have gained considerable experience in assessing nationality status/statelessness through their competency for asylum and return procedures.
  • The burden of proof when determining statelessness is not established in law. In the context of applications for Tolerated Stay or a Fremdenpass, the burden of proof lies in practice with the applicant, who is obliged to cooperate and often required to provide evidence documenting their statelessness.
  • The standard of proof for applications for Tolerated Stay or a Fremdenpass is not established in law.
  • The Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) clarified that the authorities also bear responsibility to conduct investigation and establish a link between the applicant and the potential country of nationality, especially if statelessness has been indicated in previous investigations, and even if the applicant did not co-operate in establishing their identity and nationality status. It has also stressed the need to conduct an interview in cases of possible statelessness.
  • The only domestic guidance available to authorities is jurisprudence.
  • Access to free legal aid depends on the procedure. It is available for an application for international protection, and in return and detention procedures, but not for applications for Tolerated Stay or a Fremdenpass.
  • Interviews are generally offered at first instance or appeal during asylum and return procedures except where all facts are established and undisputed. Civil registrars usually also conduct interviews during civil status cases, although practice differs across offices.
  • Free interpreting is offered during asylum and return procedures but not during civil status cases.
  • A right of appeal is established in all cases of negative decisions in asylum and return procedures; the time limit for handing in the appeal, which normally has suspensive effect, is two weeks for adults and four weeks for unaccompanied minors.
  • Decisions are given in writing with reasons.
  • The identification of statelessness by a federal or provincial authority does not result in any legal status. Legal status and rights are dependent on residence status.
  • Stateless people legally residing in Austria who are identified as such by the BFA in the context of an asylum or immigration procedure can apply for a Fremdenpass if they don’t have a valid travel document and the BFA considers it to be in the interests of the State. Besides its function as a travel and identity document, a Fremdenpass does not entail access to any other right under the 1954 Convention.
  • Stateless people without legal residence generally have access only to emergency medical care and may be dismissed from any basic social assistance they were receiving as an asylum seeker if they are refused asylum.
  • Children residing in Austria have the right (and are obliged) to attend school for nine years from the first day of September following their sixth birthday, regardless of their (or their parents') legal status. 
  • Stateless people with habitual residence in Austria are eligible to receive alimony payments.
  • People identified as stateless by civil registration authorities have access to late birth registration.
  • Temporary protection is available in Austria to stateless persons who benefitted from international protection or equivalent national protection in Ukraine. Austria does not extend temporary protection to stateless people who had a valid temporary or permanent residence permit in Ukraine, nor to other stateless and undocumented persons from Ukraine.
  • People who are not eligible for temporary protection or international protection may claim asylum in Austria. They may also enter Austria on humanitarian grounds and are temporarily allowed to stay, but if they are not entitled to protection in Austria the law requires that they organise onward travel to their ‘country of nationality/habitual residence’. If that country is Ukraine, the situation is unclear. Some stateless/undocumented people may be able to regularise their stay in Austria through other routes (e.g. student visa, or tolerated stay), but the requirements are difficult to meet.
  • Most stateless people, people at risk of statelessness and undocumented people fleeing Ukraine are likely to be excluded from protection in Austria unless they meet the eligibility criteria set out above. People who are already in Austria are strongly advised to seek legal advice as soon as possible.

Zadržavanje

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as the identification of statelessness and assessment of whether there is a reasonable prospect of removal, procedural safeguards such as time limits, judicial oversight, and effective remedies, as well as the rights granted to stateless people upon release from detention and protection against re-detention.

There are gaps in protection against the arbitrary detention of stateless people in Austrian law and practice. Statelessness is not considered juridically relevant in decisions to detain, and more than one proposed country of removal (or indeed none if the detained person cannot identify one) may be identified prior to detention. Under the law, detention should only be used as a measure of last resort, but lawyers report that this is not always the case and available alternatives are rarely applied in practice. Law and policy establish various procedural safeguards including a time limit, legal aid, decisions in writing, automatic periodic review, and remedies, but practical barriers to accessing these have been reported. There is little protection on release, and  identification documents are not routinely provided. It is possible to apply for a one-year renewable ‘tolerated stay’ permit if removal cannot be carried out, which provides access to basic assistance but is not considered lawful stay.

  • Powers for immigration detention are provided for in law. 
  • Since an amendment in 2018, the purposes of detention allowed in Austrian law go beyond Article 5(1)(f) ECHR, permitting coercive detention (Beugehaft) for up to four weeks if the person does not cooperate with their removal. Coercive detention may be imposed repeatedly and there is no right to free legal aid, nor an effective remedy.
  • A proposed country of removal must be identified prior to detention, but more than one can be identified, and there is an exception to the rule if responsibility for not being able to identify a country of removal lies with the person concerned. If a country of removal cannot be identified within the maximum time period of detention (18 months), then detention is not (or no longer) permitted. There is a clear obligation in law to release a person if there is no reasonable prospect of removal.
  • Stateless people are detained in practice. In 2021, 15 stateless people and 33 persons with unknown nationality were held in immigration detention. From January until August 2022, 3 stateless people and 13 persons with unknown nationality were held in immigration detention. The average duration of pre-removal detention has continued to decrease incrementally since 2020 (2022: 31.7 days). The average duration of detention for stateless people from January to August 2022 was 46.7 days, significantly higher than the average for others.
  • Domestic legislation and jurisprudence provide that detention should be a last resort and can only be ordered if all other less coercive measures have been found insufficient, but there is evidence that in practice, detention is often used in circumstances where it is not a last resort. Alternatives to detention are established in law and include accommodation in premises specified by the authorities, reporting requirements, and bail. 
  • The law also states that alternatives should generally be applied in the case of minors. It is reported that the number of minors held in detention is low (although no official statistics are available) and often concern those whose age is disputed.
  • Persons in pre-removal detention are sometimes released because their assumed countries of origin do not identify them as their nationals, but their release is often preceded by several months spent in detention.
  • Statelessness is not juridically relevant in the decision to detain and there is no statelessness determination procedure to refer into. The relevant fact is whether a person can be removed to another country, rather than their nationality status. 
  • There is no definition of vulnerability in law. Vulnerability assessments should be carried out as part of the proportionality test when ordering immigration detention, but this is in practice often limited to a police doctor establishing whether a person is (still) fit for detention. Statelessness is not considered by law, practice or jurisprudence to be a relevant factor in this assessment.
  • There is a maximum period of detention set in law, but, for adults, it exceeds the norm of six months. Minors may be detained for up to three months and adults for up to 6 (or 18 months if identity cannot be verified, the proposed country of removal has not approved transit or entry, or if the individual resists removal). Asylum seekers may be detained for up to ten months. De facto police arrest under the Immigration Police Act or Federal Agency Procedure Act may be upheld for a maximum of 24-72 hours depending on the circumstances of the case.
  • The Federal Office for Immigration & Asylum (BFA) orders detention through a written decision and usually also conducts an oral hearing with an interpreter. De facto detention decisions are not communicated in writing but must be communicated orally in a language the person understands.
  • The written detention order contains information about legal remedies and the appointed legal aid organisation, which is informed automatically after a detention order has been issued.
  • The BFA must conduct an ex officio review of whether detention is still proportionate every four weeks, and there is an automatic judicial review after four months. 
  • People in detention may appeal to the Federal Administrative Court (Bundesverwaltungsgericht), which must decide on the continuation of detention within seven days. However, the appeal costs 30 EUR and if it is rejected, applicants must pay court expenses of up to 900 EUR. 
  • In general, free legal aid is available to challenge detention, except in the case of de facto arrests/detention. However, access to free legal advice is available mainly through the Federal Agency for Reception and Support Services (BBU, in operation since 2020), which is a government agency. It provides legal counselling for persons who receive negative decisions in asylum and return procedures or who are subject to immigration detention. UNHCR, lawyers, and others have questioned its suitability to provide impartial legal advice. The Austrian Constitutional Court opened a formal procedure examining if the agency's construction is in line with constitutional principles in 2022.
  • There are no rules in place governing the process of redocumentation or ascertaining nationality.
  • People are not issued with identification documents on release from detention.
  • If removal cannot be carried out for factual reasons outside the control of the individual, they can apply for 'tolerated stay' and a card documenting this fact (Karte für Geduldete). People with tolerated stay in Austria have access to basic assistance including healthcare, shelter and food. Tolerated stay is not regarded as legal stay under domestic law and does not entail the right to work. Tolerated stay cards are usually valid for one year and can be renewed for another year, if the person still cannot be removed, or in certain circumstances, the person may be eligible for a residence permit after one year with Tolerated Stay.
  • Cumulative time spent in detention only counts towards the maximum time limit if it was ordered on the same legal grounds and case facts, otherwise, the maximum time period restarts from zero upon re-detention.
  • Austria has entered into a number of bilateral readmission and return agreements, as well as multilateral EU readmission agreements with third countries, most of which exclude people who have been recognised as stateless in line with the 1954 Convention from being subject to readmission (except for the agreements with Albania, Georgia, Kosovo, Moldova and Nigeria). 
  • It is not clear whether any stateless people have been subject to return or readmission under such agreements.
  • Statelessness is not necessarily considered a relevant fact in relation to possible removal. The key relevant fact rather is whether a person can be removed to another country. In the case of a stateless person, this might also be a country of former habitual residence. Every foreign person subject to a return procedure is obliged by law to cooperate in organising personal documents needed for their removal. Referral to an SDP is not possible, since there is no SDP.

Sprječavanje i smanjenje pojave bezdržavljanstva

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including facilitated routes to naturalisation for stateless people, and protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy, and practice on birth registration, including access to late birth registration, and reduction measures taken by States to prevent and reduce in situ statelessness. Analyses provisions on deprivation of nationality and whether there are safeguards related to renunciation and deprivation of nationality to prevent statelessness from occurring.

There are several barriers to naturalisation of stateless people, including a lengthy residence requirement (ten years) and high fees, although stateless people may be exempted from providing certain documents in the naturalisation process. There are also several gaps in Austrian law, policy and practice for the prevention and reduction of statelessness. Positively, the Austrian Citizenship Act was amended in March 2022 to allow people born stateless in Austria to apply for nationality over a three-year period (between 18 and 21), bringing the provision in line with the 1961 Convention. However, there are still significant gaps in safeguards to prevent childhood statelessness. Foundlings are considered Austrian until proven to the contrary, but the provision applies only to infants up to six months old. There are also gaps in safeguards in adoption procedures and provisions for the acquisition of Austrian nationality by children born to Austrian nationals abroad are discriminatory. Birth registration law and practice is generally good and do not create a risk of statelessness. There is facilitation for parents unable to present key documents, specifically in the asylum context. However, legal and practical barriers exist for stateless people to access late birth registration. Acquisition of Austrian nationality requires the person to have previously renounced all other nationalities, which may result in statelessness. A landmark judgment from the Court of Justice of the European Union in January 2022 highlighted the limits of Austria’s ‘single nationality’ approach, requiring the courts to conduct a proportionality assessment in the context of loss and renunciation of nationality. There are also gaps in safeguards to prevent statelessness in some instances of loss and deprivation of nationality.

  • There are facilitated naturalisation procedures for people born stateless in Austria (see below), but there is no facilitated procedure for stateless people (including children) who were not born in Austria.
  • Victims of Nazi persecution who resided in Austria before 15 May 1955, and their direct descendants (children, grandchildren etc.), can acquire Austrian nationality under specific provisions which were substantially expanded in April 2022.
  • Like other foreign nationals, stateless people may qualify for discretionary naturalisation after ten years of legal residence, or, at the earliest six years if additional integration requirements can be met or the applicant is a child who was born in Austria. In addition to residence, applicants must have a regular income, must not be dependent on social assistance (with some exceptions e.g. disability), must not have a criminal record, must have ‘a positive attitude towards the Republic of Austria’, pass a citizenship test, and pay a significant fee (approximately 1200-2500 EUR (reduced for minors) depending on the province and grounds for naturalisation).   
  • There are no fee waivers or exemptions for stateless people, except for the possibility to be exempt from providing documents that are normally required for naturalisation but are not available to them, such as passports and birth certificates.
  • Previous criminal convictions may constitute a barrier to acquiring Austrian nationality. To be granted nationality, the applicant must show that they do not pose a danger to public law, order and security.
  • There is a non-automatic provision in law that permits children born stateless in Austria to acquire Austrian nationality by application if they have been stateless from birth; lived lawfully in Austria for at least ten years (five years of continuous residence preceding the application); are between 18 and 21 years of age; have not been convicted by a domestic court for certain offences or by a domestic or a foreign court to more than five years in prison; and demonstrate proficiency in German and pass a nationality test. The Austrian Citizenship Act was amended in March 2022 to extend the upper age limit for this type of application from 20 to 21, allowing for a three-year period to apply.
  • There are no requirements for the parents to have legal status. Children are required to prove that they cannot access another nationality, but there is no further information on practice as the provision has only been applied once since 1981.
  • Additionally, all children born in Austria, regardless of legal status, may qualify for discretionary naturalisation after six years of residence subject to the other standard requirements for naturalisation.
  • The  fees for naturalisation are among the highest in Europe and amount to approx. 1200-2500 EUR, depending on the Austrian province conducting the procedure and the legal ground for naturalisation.
  • There are no specific provisions to protect the right to a nationality of children born to refugees.
  • A new-born child of unknown parentage found on Austrian territory is regarded as a national by descent, until proven to the contrary.
  • Austrian nationality may not be withdrawn from foundlings if this would lead to statelessness.
  • However, there is an explicit age-limit of six months, meaning that the safeguard does not apply to all young children not yet able to communicate the identity of their parents or place of birth.
  • A child national adopted by foreign parents does not lose their Austrian nationality before a new nationality is acquired. However, they do lose their Austrian nationality automatically if they acquire another one during the adoption through an explicit declaration of intent.
  • A child under the age of 14 residing in Austria and adopted by Austrian national parents is entitled to apply for nationality subject to certain conditions. Nationality will be granted within six weeks of the application and the residence requirement may be waived if the adoptive parents' centre of interest and continuous lawful residence have been abroad for more than 12 months.
  • There is therefore some risk of statelessness during the adoption procedure as the acquisition of Austrian nationality applies only to children under 14, is not automatic and is subject to some discretion on the part of the authorities.
  • Children born to nationals abroad acquire Austrian nationality by descent if their mother is a national or if their father is a national and they are born in wedlock. 
  • If born out of wedlock, nationality is automatically conferred to children abroad if their father is a national and acknowledged paternity within eight weeks of birth; or their father is a national and his paternity has been judicially declared after eight weeks of birth.
  • Children born abroad who would otherwise be stateless acquire nationality by descent if an Austrian national is the legal mother or father of the child according to the legislation of the country of birth.
  • The provisions for acquisition of Austrian nationality by children born to nationals abroad are discriminatory. The short deadline of eight weeks for the establishment of fatherhood creates a risk that some children will be left stateless due to delays in establishing paternity. 
  • If paternity is established later than eight weeks after birth, the child can only acquire Austrian nationality upon application if paternity is established and the child is either a lawful resident in Austria at the time of application, or the father has been permanently and lawfully residing abroad for at least 12 months. Applicants must cover all fees and prove that Austria's international relations are not significantly impaired, and law and order and public safety or other public interests are not endangered through the granting of nationality.
  • All births in Austria must be communicated (usually by the hospital/doctor/midwife) to the civil registry office in the place of birth within seven days, regardless of nationality and legal status. Austrian civil registry offices are obliged to immediately register all births notified to them and issue birth certificates containing details of the place and time of birth, the name of the child and the (legal) parents.
  • Parents must submit documents confirming their nationality and civil status (transcribed if they contain non-Latin letters). Decisions issued by the asylum authority or the court containing personal data may be used to confirm identity. If documents cannot be presented, civil registrars conduct ex officio investigations, including oral hearings with the parents; asking the asylum authority to share transcripts from asylum interviews; and conducting oral hearings with testimonies. Oral declarations made before the registration office have greater probative value, as making a false declaration leading to official documentation is a criminal offence.
  • To facilitate birth registration for refugees and asylum seekers civil registrars should be flexible and, for example, relax documentation requirements if the person cannot provide the required evidence. In cases of recognised refugees, civil registrars usually rely on the personal data recorded in their refugee passport (Konventionsreisepass). 
  • Civil registry offices determine the child's nationality and record this information in the Central Civil Status Register (Zentrales Personenstandsregister, ZPR). However, this is not binding on other authorities and the nationality is not documented on the birth certificate.
  • There are no mandatory requirements for health and civil registry authorities to report undocumented migrants seeking birth registration, but they must report marriages/civil partnerships of non-nationals. The law does not explicitly prohibit data sharing between authorities, although in practice some firewalls are in place particularly regarding access to education and healthcare.
  • Late birth registration is possible (and common) after the seven-day deadline, however, there is a fee of 10-25 EUR and a charge for issuing birth certificates after two years. Late registration of births abroad is also possible for Austrian nationals; stateless people and people of undetermined nationality with habitual residence in Austria; or recognised refugees living in Austria. Refusal of late registration can be appealed to the Provincial Administrative Court within four weeks and then to the Constitutional or Supreme Administrative Courts.
  • However, there are legal and practical barriers to late birth registration by stateless people including that there is no definition of a stateless person in the Austrian Civil Status Act nor any procedure to be applied in such cases, leading to inconsistent practice. The definition contained in the Austrian MOI's (non-binding) guidance for civil registrars is very narrow, asserting that stateless people are those who ‘can prove they renounced their former nationality’. Stateless people are often required to provide documents confirming birth outside of Austria. Late birth registration is not accessible to beneficiaries of subsidiary protection nor people with ‘unknown nationality’.
  • Until recently, statelessness in Austria mainly occurred in a migratory context. A 2012 analysis of the former Asylum Court’s practice in relation to stateless asylum-seekers found that most were Syrian Kurds or Palestinians. Anecdotal evidence gathered by UNHCR Austria suggests there could also be a significant number of stateless Palestinian refugees from Iraq living in Austria.
  • As of 1 January 2022, over 70% of people registered in the Central Register of Residents as 'stateless', 'nationality undetermined' or 'nationality unknown' were born in Austria, a percentage that has sharply increased over the past five years.
  • To facilitate birth registration, several hospitals in Austria are equipped with ‘Babypoints’ (outposts of civil registry offices) to enable automatic, immediate birth registration and issuing of birth certificates. Local practice has developed introducing some flexibility around documentation requirements for birth registration for asylum seekers and refugees. 
  • The Government has not implemented any other measures specifically aimed at reducing statelessness.
  • The Austrian Nationality Act contains some provisions on loss and deprivation of nationality which may result in statelessness. The safeguard against statelessness is stronger in cases of deprivation than in cases of automatic loss of nationality.
  • Following a terror attack in 2020, a new provision was introduced into law allowing for deprivation of nationality if a person was convicted for crimes related to terrorism by a domestic or foreign court and deprivation does not cause the person to become stateless.
  • The law provides for ex lege loss of nationality if someone intentionally acquires a foreign nationality without having been granted the right to retain their Austrian nationality. Automatic loss could cause someone to become stateless if the foreign nationality has, in the meantime, been renounced. There is no safeguard against statelessness in the law except for the possibility to request the right to retain Austrian nationality before acquiring another.  The right to do so was recently broadened by rulings of the Austrian High Courts. In certain limited circumstances, there is a right to retain Austrian nationality upon acquisition of another nationality.
  • There are insufficient safeguards against statelessness in the provisions governing voluntary renunciation and acquisition of Austrian nationality. Austria adopts a 'single nationality' approach, therefore until it is evidenced that the person has renounced all other nationalities, only a guarantee of a grant of Austrian nationality is issued. This guarantee may be revoked in certain circumstances, which may result in statelessness.  An applicant only receives a guarantee of grant of Austrian nationality, when evidence is provided that (a) the applicant relinquished their former nationality(ies), or (b) the applicant was unable or could not reasonably be expected to take the necessary steps to relinquish their previous nationality.
  • A landmark judgment from the Court of Justice of the European Union in January 2022 (JY) highlighted the limits of Austria’s ‘single nationality’ approach, and  highlighted that the authorities must conduct a proportionality assessment in decisions to revoke an assurance to grant Austrian nationality. This gave rise to several rulings of Austrian High Courts in 2022, strengthening the safeguards against statelessness in the context of automatic loss of nationality and in the course of naturalisation.
  • In a 2019 decision the Supreme Administrative Court found that ex lege loss of Austrian nationality is only admissible if the measure is considered proportional (following the Tjebbes judgement of the Court of Justice of the European Union).
  • Deprivation of nationality is possible if Austrian nationality was obtained through fraud even if it renders the person stateless. 
  • Deprivation is also possible if a national voluntarily enters the military service of a foreign country, is in the service of a foreign country and severely damages the interests or reputation of Austria, or takes an active part in combat operations abroad on behalf of an organised armed group and deprivation does not cause the person to become stateless; if a person acquired Austrian nationality more than two but less than six years earlier and has not yet renounced their former nationality; or if a person was convicted of crimes related to terrorism by a domestic or foreign court and deprivation does not cause the person to become stateless.
  • Austrian nationality acquired by a dependent spouse or child may also be withdrawn if the nationality of their family member is withdrawn and if withdrawal is found to be proportional. 
  • The competent authority for withdrawal of Austrian nationality is the respective provincial government and the local authority where the person has their habitual residence. The decision can be appealed within four weeks to the respective Provincial Administrative Court (Landesverwaltungsgericht). This decision can then be appealed within six weeks to the Constitutional Court (Verfassungsgerichtshof) or the Supreme Administrative Court (Verwaltungsgerichtshof). Applicants who cannot afford the costs of court proceedings can apply for legal aid.
  • Provisions on deprivation of nationality are applied in practice, particularly between 2017 and 2019 in the case of Austrian nationals believed to have acquired Turkish nationality. Thousands of procedures were initiated following the publication in 2017 of a putative Turkish electoral register containing the names of Austrian nationals. The Constitutional Court ruled in 2018 that an unofficial copy of a putative electoral list is not evidence of nationality in its own right.

Izvori

Library of resources, legal instruments, publications and training materials on statelessness, specifically relevant to this country. More regional and international materials, as well as resources from other countries, are available on the Resources library. Domestic case law can be consulted in the Statelessness Case Law Database (with summaries available in English).

Please note that we are in the process of adding new resources, so check back soon.

Council of Europe - European Convention on Nationality (Nov 1997)
United Nations - Convention on the Reduction of Statelessness (Jan 1961)

Asylkoordination Österreich, Diakonie Flüchtlingsdienst, ENS & ISI - Joint Submission to the Human Rights Council at UPR37 - Austria (Jul 2020)
European Network on Statelessness - Statelessness determination and protection in Europe (Sep 2021)

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