by Lisa Wolfsegger

The NGO asylkoordination österreich is a networking organization that stands up for the rights of vulnerable groups. Particular emphasis is laid on child refugees. This blog post draws attention to major shortcomings in the provision and implementation of children’s rights for child refugees.
 
In 2020, 5,522 children applied for asylum in Austria. While 1,467have entered the country without their parents and are, therefore, unaccompanied, most of them, that is, 4,055, have entered Austria with their parents[1]. All adults and accompanied/unaccompanied minors – have to apply for asylum. This is the only possibility for legal residence in Austria. Other forms of legal entrance are rare. In the asylum process, three points are checked: asylum according the Geneva Refugee Convention (1), subsidiary protection according the European Convention on Human Rights (2) and humanitarian residence permits: §§ 55 and 57 (3).
 
Discrimination of children
In Austria, there are two groups of children– children and child refugees. There are systematic shortcomings before, during and after the asylum process concerning minors. The state does not provide children that fled to Austria without their parents with a guardian for extended periods (weeks or even months). During this initial process, no one is responsible for them. As a result, about half of the unaccompanied minors disappear altogether. No one keeps track of the missing children. In 2020, 764 children disappeared in this way[2].
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After passing through the initial phase, unaccompanied minors are provided with accommodations with 24/7 care. However, they are disadvantaged compared to Austrian children in the custody of state-provided child-care accommodations, as the state provides fewer resources for their care.
 
Study on accompanied minors
In 2019, some colleagues and I jointly published a study with UNICEF[3]. It focused on the situation of accompanied minors, particularly on the rights of accompanied child refugees during the asylum process and on the contribution of existing support services serving their best interest. The focus group were children in families during the asylum process in Austria. As our study shows, most protection is provided through the voluntary commitment of supporters or teachers. Despite this considerable voluntary effort and individual engagement, we found clear deficits in the implementation of the Convention of the Rights of the Child for child refugees. In particular, the state authority providing infrastructure and supporting structures, does not take the best interest of the child and the protection of the children’s rights sufficiently into account.
 
No place for being a child
The asylum procedure is stressful, for children and parents alike. Children have to take the role of adults and therefore involuntarily encounter the world of grownups. There is no space for being a child. Leyla (14 years) described her daily life with “three times a week crying, four times a week being happy”. The eight-year-old Rami wished for a kind fairy to grant a legal residency status (“Aufenthaltsstatus”). While other eight-year-olds desire Lego, Rami dreams of a legal residency status – actually a word that an eight-year-old should not even know.

Asylum seeking children are explicitly excluded from the law that prescribes minors to be educated until the age of 18 (“Ausbildungspflicht”). Their parents are not allowed to work, and the families often live in cramped housing without any private room for children. The parents’ lack of system knowledge prevents them from giving adequate support to their children.

Children often do not know any other place than Austria. Nevertheless, they experience racism and the feeling of being unwanted every day. Although some of them have been born in Austria, this does not entitle them to legal residence. In Austria, children always get the citizenship of their parents, no matter how long they have already lived in the country. This discrimination in the asylum process leads to an enormous physical and psychical burden on them.
 
Legal consequences
As part of guardianship, parents are their children’s legal representatives. When parents cannot afford a lawyer, there is no preparation for, or support at, the interview. Accompanied children often become invisible in this legal context. While the authorities recognise unaccompanied minors as autonomous parties, accompanied minors are seen as “appendix” of their parents. The focus on the violation of children's rights and child-specific grounds for persecution disappears. Families with a positive asylum status can receive minimum benefits (“Mindestsicherung”). If they have subsidiary protection or humanitarian status, it depends on the region whether they get any social welfare at all. If the asylum procedure ends with a negative decision, many families fear deportation. In early 2021, the case of Tina received media attention. The 14-year old Tina was born in Austria and lived here for 12 years. In January 2021, she and her family were deported to Georgia. As we will see below, this case is not an unpleasant exception. Deportations of minors are cruel everyday occurrences in Austria. Even though it would be legally possible, authorities refuse to grant humanitarian status to families. Consequently, Austria deported 67 minors in the pandemic year of 2020.[4] Also detention (“Schubhaft”), the cruel imprisonment without crime does not stop at children. In 2020, 13 children were in detention, eleven of them being unaccompanied minors.[5]
 
What do we need?
The focus should be on the best interest and the rights of the child. Currently, the best interest of the child hardly matters. According to the law, people receive humanitarian status when the right to a private and family life prevails over the interests of the state. This consideration is in the discretion of the authorities. This humanitarian status is not humanitarian; it simply does not work anymore. In recent years, high legal barriers have been created by the deciding immigration authority, the “Bundesamt für Fremdenwesen und Asyl” (BFA), which is subordinate to the Ministry of Internal Affairs. The BFA is over-financed and uses its large personnel of about 1,000 employees to file legal appeals (“Amtsrevisionen”) against positive decisions by the Federal Administrative Court, which is the second instance. As a result, the criteria for admission and the legal reasoning have become so complex that they beat even specialized lawyers. The entire legal apparatus is inscrutable for all parties involved.
 
What happened before the deportation of 12-year-old Tina?

In the case of Tina, the mother applied for a humanitarian status and, therefore, for a re-examination of the best interest of the child in May 2020, that is, nine months prior to the deportation. Thus, the mother did her best to safeguard the best interest of her child. The authority ignored the application, although it was required to deal with it within six months. This was contrary to law!

The best interest of the child had been examined 1 ½ years before the deportation. A proper procedure would have included a re-examination before deportation. This did not happen. In the long interval since the last examination, the children had become integrated in Austria and their ties to the country of origin had decreased. Therefore, their adaptation to the country of origin had become more difficult. If the authorities take children’s rights seriously, they have to re-examine to decide if the deportation indeed corresponds to the best interest of the child.
 
We see that the shortcomings in the proceedings for children and asylum are systematic. Children’s rights are consistently ignored; child refugees are not recognized as children Just as in the case of Tina, our study shows the need for a stronger focus on the rights of the child in the asylum process. The current situation is a systematic failure that is politically intended. For many years, asylkoordination österreich has been working to improve conditions in the field of children’s rights for this vulnerable group. Each and every one of the 67 deportations of a minor in 2020 was cruel. Altogether, we need better options for the legalization of undocumented persons in Austria – not only for children.


[1] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021

[2] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021

[3] Andrea Fritsche, Katharina Glawischnig, Lisa Wolfsegger: „Dreimal in der Woche weinen, viermal in der Woche glücklich sein“. Zur kinderrechtlichen Situation begleiteter Kinderflüchtlinge und ihrer Familien. UNICEF Österreich / asylkoordination österreich. 260 Seiten. ISBN 978-3-200-0664-1.

[4] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021

[5] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021

By Rainer Bauböck and Gerd Valchars

Early in the morning of 28 January, heavily armed police escorted four children of rejected asylum seekers (three minor girls and a boy) to the airport from where they were deported to Georgia and Armenia. The incident caused widespread protests because the children had been living and attending school in Austria for many years and were considered well integrated. The social democratic governor of Carinthia, Peter Kaiser, and others called for a debate on ius soli, the attribution of citizenship by birth in the territory.

In a guest commentary in one of the Austrian leading newspapers "Der Standard", political scientists Rainer Bauböck and Gerd Valchars show that Austria's citizenship law is in urgent need of reform - and how other countries handle this. The text below is a slightly modified English translation.

​Children who were born and went to school in Austria are being deported because their parents have no right to asylum. The ongoing discussion focuses on whether the Minister of the Interior could have refrained from deporting them despite the negative decision of the courts, whether the best interests of the child should take precedence over state interests, whether such cases should be examined by a hardship commission in the future, and whether the federal provinces must be re-involved in this examination.

A few voices state the obvious. Because of their circumstances of life, the children who were deported are Austrians. They can only be deported because they do not have Austrian citizenship. Our citizenship law only provides for the possibility of naturalization for children born in Austria after six years of residence, and they must meet the same harsh conditions as first-generation adult immigrants.

When asked whether the citizenship law should not be reformed, ÖVP parliamentary faction chairman August Wöginger answered twice on ORF (the Austrian public broadcasting corporation): "We have a well-functioning citizenship law." No, Mr. Chairman, we don’t! In December, the Brussels Migration Policy Group published the current figures of its Migrant Integration Policy Index (MIPEX), which social scientists consider a solid measurement tool for integration policies. In a recent comparison of access to nationality in 52 countries Austria ends up in last place, together with Bulgaria.

​Born in the country
The NGO SOS Mitmensch (SOS fellow human being) has therefore called for children born in Austria to be automatically granted citizenship if one parent has lived in the country for six years prior to birth. With such a conditional ius soli Austria would join Germany, Finland, France, Greece, Great Britain, Ireland, Luxembourg or Portugal. In the case of Tina and her little sister, however, this would not have prevented the deportations because the mother had not been in the country long enough before giving birth and her stay was linked to her ongoing asylum procedure. Only an unconditional ius soli, in which birth in the country alone is sufficient for the automatic acquisition of citizenship, would have protected the girls. According to GLOBALCIT, such a birthright exists in as many as 31 countries worldwide, most of which are in North and South America. In Europe, there has been no unconditional ius soli since 2004.

Pure coincidence
One argument against unconditional ius soli is that it creates an incentive for "birth tourism". This cannot be dismissed out of hand. Middle class mothers from Mexico and China pay a lot of money to deliver their babies in specialized birth clinics in the US so that their children get American citizenship. One can also rightly object that the mere coincidence of birth in the territory is not a sufficient indicator of attachment to a state. However, when children grow up and go to school in a country, this is certainly enough evidence that that country is their home.

So, in addition to birth, socialization in the country needs to be added as a second and crucial indicator for belonging. And here there are several European countries that can serve as models. Let's look at the two European MIPEX leaders: In Portugal, minors are eligible for naturalization if they were born in the country and have been in school or training there for at least one year. In Sweden, underage children with permanent residency get citizenship after three years (or two years for stateless children) with no further conditions, based on a simple declaration by their parents.

Is there a chance for reform?
The obvious solution, then, would be to reform the Austrian citizenship law to introduce both a conditional ius soli and an entitlement to citizenship for minors regardless of their place of birth and their parents' residence status. Would that create an incentive for abusive asylum applications? This cannot be completely ruled out, but the answer is surely obvious: fair and speedy asylum procedures would eliminate this incentive.

Is there any chance of such a reform in Austria? The Green Party is currently being harshly criticized by many for not having the courage to risk even breaking up the government coalition on this issue. Green MP Sibylle Hamann is right that this would not help anyone.[1] However, there is not a single word about citizenship in the coalition agreement. This issue was obviously left out because the Greens were not in favor of further restrictions. In view of the continuation of the agenda of the right-wing ÖVP-FPÖ government (2017-19) in the other areas of migration and asylum policy, this silence on naturalization was a small and little-noticed success for the Greens. Now, however, they are challenged to actually use this leeway. Given the unattractive alternative coalition options for the ÖVP, it is not very likely that Chancellor Sebastian Kurz will let the coalition fall apart if the Greens make a push for the overdue reform of the citizenship law.

What is needed now for the deported children is a humanitarian repatriation campaign. For thousands of children who are threatened with deportation from their Austrian homeland in the future, a reform of the citizenship law is needed.

Notes

[1] https://www.derstandard.at/story/2000123761978/die-oevp-muss-sich-bewegen

By Josef Kohlbacher & Maria Six-Hohenbalken

As Agier (2011, 158) has aptly put it, "all refugees are vulnerable". The concept of vulnerability fulfils a central function: it serves to identify groups that need targeted support and special protection. In its practical application, however, the concept has ambivalent effects. Used as a "label" that establishes unequal power relations, it neglects existing heterogeneity/s within groups and may lead to an underestimation of the groups' capacity to act. In what follows, we present how our recently published volume entitled Vulnerability in Contexts of Flight advances the discussion on this topic.
 
Initially applied to risk and disaster studies, the conceptualisation of vulnerability was subsequently taken up and elaborated on by various disciplines. Owing to its application in politics, as well as in guidelines and indicator systems in International Organizations (UNHCR; WHO), the concept has gained additional weight. On the down side, there are some inherent pitfalls to the multiplicity of approaches, applications and discourses and the resulting centrifugal tendencies. In addition to discordant academic approaches, we have to take tendencies of compartmentalization, pathologization and victimization into account.
 
Vulnerability includes two components: inherent and situational factors. The former refer to aspects that are quasi-inherent to human nature, i.e. a social or affective dependency on other people, basic life needs based on our biological nature, such as those for food supply, physical or psychological integrity, recreation, etc. The latter refer to the need to cope with the challenges of life. By contrast, "situational vulnerability" is context-specific and is influenced by social, political, economic or environmental determinants. These have an inherent temporal component and can be effective in the short, medium or long term. There is a legal definition that stipulates which people particularly need protection. According to Art. 21 of the EU Reception Directive (Directive 2013/33/EU), these are in particular (unaccompanied) minors, people with disabilities, people with serious physical or mental illnesses, pregnant women, single parents, victims of human trafficking, torture or psychological, physical and sexual violence, as well as older people. Furthermore, LGBTIQ refugees are in particular need of protection.
 
Its relational aspects aside, the concept presupposes the vulnerability of refugees as a given characteristic. Yet, the social construction of vulnerability and the mechanisms of creating and/or denying the ability to act need to be addressed from a scholarly and socio-political perspective. This approach brings social environments, framework conditions, networks, institutions, organisations and discourses into focus. It is necessary to investigate the factors that enable, force or deny the ability of refugees to act. Furthermore, the entitlement of all refugees to universal rights and to social participation must be considered. The rights and needs of refugees and their inclusion in the host societies constitute the uniting theme of all the contributions in this volume.
 
In addition to highlighting specific problems pertaining to the vulnerability of certain groups of refugees, this volume presents preventive measures geared to promote resilience - i.e. the ability to cope with extreme life crises - and to prevent the development of clinical symptoms of illness. All the authors aim to make visible and give voice to the concerns of refugees who are by definition "vulnerable", be they women, LGBTIQ, people with mental illness or people who do not fall into these categorisations, such as young men and fragmented families. A further intention is to pursue an inter- or transdisciplinary orientation and to point out the challenges for practitioners in refugee work. The authors illustrate the conceptual issues confronting the endeavour to shift the focus to those people for whom fleeing and being a refugee poses special and additional challenges due to age, gender, illness/health, social contexts, etc. The concept of vulnerability is also a challenge for practitioners in refugee work. We attempt to show that the status of being a refugee does not come to an end with a positive asylum decision. The fragmentation of families, problems in family reunification, the long-term consequences of the refugee experience, political violence and torture are factors that perpetuate individual vulnerability. Vulnerability cannot be captured by legal definitions alone. It is the intersectionality of different factors that brings further vulnerabilities to light.
 
The Contributions in Detail
Monika Mokre deals with the vulnerability of young male refugees. She pursues two analytical goals. Firstly, she shows that discourses on the vulnerability of migrants and the hazards they face do not contradict but complement each other. Secondly, she elucidates the specific gender reference of these discourses, which in effect exclude young refugee men from support services. Gabriele Rasuly-Paleczek's contribution is dedicated to the emergence of the vulnerability paradigm and its implementation. Although the term is omnipresent in international as well as national discourses, there is as yet no consensus on to whom and how the term is applied. The author presents the different definitions and approaches based on an inherent or a situational understanding of vulnerability and discusses the legal instruments of operational refugee protection. Sabine Bauer-Amin and Maria Six-Hohenbalken focus on transformations in the family relationships of refugees from Syria. Experiences of flight cause ambivalences and phases of liminality with regard to spatial and temporal factors. The authors use examples from interviews with refugees from Syria to show how family structures, which are anyhow constantly evolving, change in the context of flight. Refuge not only causes a fragmentation of families, but also promotes their denucleation, which as a major consequence leads to efforts to maintain family relationships on a larger scale despite considerable spatial distances. Josef Kohlbacher analyses the resident mobility of refugees from Afghanistan within Austria in the field of tension between determinants of vulnerability and the structural integration opportunities on the housing market. Most refugees prefer to live in an urban setting. As a result, those entitled to asylum, tend to migrate to Vienna. However, this hardly corresponds to a realistic assessment of the real opportunities on the urban labour and housing market, which is analysed in the article. Lena Siemers deals with the situation of Nigerian women who have become victims of human trafficking and forced prostitution. In the course of psychosocial counselling in 2018 and 2019, the author supported numerous trafficked persons and learned about their fates. On the basis of the experience of a young woman sold into prostitution via Libya to France and then to Germany, she describes the practices of human trafficking and the numerous mechanisms of sexual exploitation and oppression young women from Nigeria are exposed to. The text by Serdar Arslan, Cécile Balbous and Magdalena Mach from Queer Base Vienna is dedicated to LGBTIQ refugees, and their specific problems between vulnerability and self-empowerment in the Austrian asylum system. LGBTIQ are exposed to various forms of discrimination, especially to social and institutional racism. In particular, they find themselves in the difficult situation of having to perform their sexual orientation within a normative framework that offers no space for otherness. This contribution examines the socio-political (and legal) situation of LGBTIQ refugees from a perspective grounded in activist practice. Klaus Mihacek and Martin Stepanek of the Psychosocial Centre ESRA (Hebrew for “aid”) analyse the requirements of psychosocial care models for the treatment of trauma sequelae in the context of flight and migration. In psychotraumatology, "trauma" is understood as a physical and psychological reaction to situations of extraordinary threat or of a catastrophic scale that would trigger profound despair in almost any person. The authors describe the requirements that arise for the psychosocial care of migrants, asylum seekers and refugees. Thomas Wenzel and Reem Alksiri from the World Psychiatric Association, Scientific Section on Psychological Aspects of Torture and Persecution and CEHRI (The Centre for the Enforcement of Human Rights International) reflect on the many aspects of torture and human rights in an interdisciplinary framework. They emphasise that safeguarding such essential human rights as protection from torture and care for survivors and relatives hinges on an interdisciplinary cooperation bringing together health professionals, lawyers and cultural anthropologists and offering public support for those affected. Ursula Trummer and Sonja Novak-Zezula of the Center for Health and Migration (Vienna) discuss aspects of “irregular migration”. How to offer health care for persons who have migrated to Austria without a valid legal status? Their contribution analyses the results of a study conducted in four EU member states on the economic costs of care for these migrants, comparing primary care and emergency hospital care. The volume includes interviews with two experts on refugee work. One is with Peter Sarto, who works for the Office of the Ombudsman for Children and Young People (Kinder- und Jugendanwaltschaft, KJA), which also attends to the needs of minors living in socio-pedagogical institutions. In the second interview, Ali Gedik reports on his experiences in caring for unaccompanied minor refugees. 
 
The overall aim of the volume is to critically discuss the concept of vulnerability and to provide an overview of the theories associated with it. Of particular concern are the emergence of vulnerability, its differentiations in the context of flight and migration, the danger of instrumentalization, as well as its practical implications. Vulnerability in Contexts of Flight offers conceptual and functional perspectives on this complex phenomenon and provides an overview of the specific practice-related tasks confronting the respective experts. In the context of flight, vulnerability occurs in many different forms, and the resulting consequences for refugees are just as diverse. We plead for a critical reflection on the social and legal framework and its impact on the perpetuation of vulnerability of refugees in the host societies. In politics, the great potential and skills of refugees tend to be overlooked. Institutionally, sustained efforts need to be made to promote and develop the agency of refugees, not only for their own benefit, but also for the benefit of the host societies.
 
 
References
 
Agier, Michel 2011: Managing the Undesirables. Refugee Camps and Humanitarian Government. Cambridge.
 
Kohlbacher, Josef; Six-Hohenbalken, Maria 2020: Vulnerabilität in Fluchtkontexten. ISR Forschungsberichte 53. Wien: ÖAW Verlag.

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