Austria

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Update from June 2022:

On 23 March 2022, the Austrian Parliament amended the Austrian Citizenship Act so that people born in Austria who would otherwise be stateless may apply for nationality over a three-year period, bringing the provision in line with the minimum requirement of the 1961 Convention. While a welcome step, Austria’s safeguards to prevent childhood statelessness still lag behind other European countries.

In a landmark case JY v Wiener Landesregierung in January 2022, the Court of Justice of the European Union found that Austria’s decision to revoke an assurance to grant nationality was not compatible with the principle of proportionality because it led to the permanent loss of EU citizenship and statelessness and was based on administrative traffic offences. The case also illustrates the limitations of Austria’s ‘single nationality’ approach, which requires applicants for naturalisation to renounce all other nationalities before acquiring Austrian nationality.

Austria received a recommendation during the third cycle of the Universal Periodic Review to establish an efficient procedure for determining statelessness and approve residence permits on the basis of statelessness.

New resources on Austria now available include:

Workshop on Statelessness in Austria during the Asylforum 2022 (July 2022)
SOS Mitmensch and ENS, Joint Press Release (March 2022)
ENS news update, New Austrian law safeguards stateless children (March 2022)
ENS blog, The Austrian naturalisation procedure - disproportionate and in violation of international law (March 2022)
ENS news update, New CJEU judgment (C-118/20) on preventing statelessness in renunciation of nationality (January 2022)
Court of Justice of the European Union, JY v Wiener Landesregierung (C-118/20) (January 2022)

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. 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. 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.

Information below by theme was last updated in March 2021.

Last updated:

Mar 2021

Next scheduled update:

Mar 2022

Country expert(s):

Leonhard Call, ENS Individual Member

Additional resources

ASSESSMENT KEY

++POSITIVE

+ SOMEWHAT POSITIVE

+-POSITIVE and NEGATIVE

- SOMEWHAT NEGATIVE

--NEGATIVE

ADDITIONAL INFO

NORMS & GOOD PRACTICE

International and Regional Instruments

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.

The 1954 Convention

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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.

The 1961 Convention

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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.

Other Conventions

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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).

Statelessness Population Data

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’, and records the nationality of immigration detainees, but it does not publish the latter. There is no statelessness determination procedure in Austria nor any 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.

Availability and sources

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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 (4,255 'stateless', 745 'unknown nationality' and 12,025 'undetermined nationality' as of 1 Jan 2020); Statistik Austria data on naturalisations (total 492 between 2008-2018, of which 426 'stateless', 49 'undetermined nationality' and 17 '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 persons residing in Austria with a residence permit (1,132 at the end of 2019).
The data in the Central Register of Residents is disaggregated by age (over 70% are children under 14), gender (46% are women) and place of residence (over 70% 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.
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 has been published by UNHCR.
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. UNHCR estimated that 2,467 stateless refugees and beneficiaries of subsidiary protection were living in Austria at the end of 2015 (3% of the refugee population).
People with 'unknown nationality' were the 7th largest ‘nationality’ group applying for asylum in Austria in 2019 (267 applications). 377 people with 'unknown nationality' received protection in 2019 (asylum: 311, subsidiary protection: 32 and humanitarian status: 34).

Stateless in detention data

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The Ministry of Interior records the nationality of immigration detainees but it does not publish statistics on people held in immigration detention.
Data made available through parliamentary inquiries and UNHCR suggests that few stateless people are detained in Austria, however, this number is rising in comparison with previous years. In 2019, 14 stateless people were held in immigration detention (including one minor).

Statelessness Determination and Status

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 stateless 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.

There is no definition of a stateless person in Austrian law and 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 are responsible for different procedures and there is no public information nor instructions for authorities on how to identify or assess statelessness. Jurisprudence gives some guidance and has determined that the standard of proof should not be too high. Procedural safeguards such as access to legal aid, interviews and interpreting also vary depending on the procedure. Without legal residence on another basis, stateless people have access only to emergency medical care and primary education. There are several barriers to naturalisation including a lengthy residence requirement (ten years) and high fees, although stateless people may be exempted from providing certain documents in the naturalisation process.

Definition of a stateless person

There is no definition of a stateless person in Austrian law.

Training

No information is available about any specific 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.

Existence of a dedicated statelessness determination procedure (SDP)

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.

Procedures in which statelessness can be identified and other routes to regularisation

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.
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 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.
Tolerated Stay procedures are usually lengthy and have a high threshold of substantiation to prove that the person is un-removeable due to no fault of their own.

Access to procedures

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 no specific training on statelessness for government bodies.
Different procedures are conducted by different 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.
The BFA and Federal Administrative Court (BVwG) have gained considerable experience in assessing nationality status/statelessness through their competency for asylum and return 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.

Assessment

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 threshold of substantiation should not be too high if statelessness has been indicated in previous investigations. It has also stressed the need to conduct an interview in cases of possible statelessness.
The only guidance available to authorities is jurisprudence.

Procedural safeguards

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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 different offices.
Free interpreting is offered during asylum and return procedures but not during civil status cases.
Decisions are given in writing with reasons.

Protection

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.

Detention

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 to prevent 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. 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 as 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.

Immigration detention

Powers for immigration detention are provided for in law.
Since an amendment to the Immigration Police Act (Aliens Police Act) in 2018, the purposes allowed 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 can’t be identified within the maximum time period of detention (18 months), then detention is not (or no longer) permitted.
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.
Stateless people are detained in practice. In 2019, 14 stateless people were held in immigration detention (including one minor). Despite the outbreak of the COVID 19-pandemic, the number of people in pre-removal detention and the average duration of detention increased. The average length of detention for a stateless person was 59 days (January to June 2020).
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 lawyers representing individuals in detention report that this is often not followed in practice.
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.

Identification of statelessness

coming soon

Information and analysis coming soon

Procedural safeguards

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There is a maximum period of detention set in law, but it exceeds the norm of six months (plus 12 in specific circumstances). Minors may be detained for up to three months and adults for up to 16 (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. However, lawyers have reported that the written order is sometimes withheld from people who refuse to sign it.
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 independent legal counselling and to effective legal remedies is available only through the appointed legal organisation and in some cases, the independence of appointed organisations has been questioned.
There are no rules in place governing the process of redocumentation or ascertaining nationality.

Protection on release

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.
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.

Return and readmission agreements

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Austria has entered into a number of bilateral readmission and return agreements, 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), as well as multilateral EU readmission agreements with third countries.
It is not clear whether any stateless people have been subject to return or readmission under such agreements.

Prevention and Reduction

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 gaps in Austrian law, policy and practice for the prevention and reduction of statelessness. Children born stateless in Austria must meet requirements that go beyond the 1961 Convention (such as ten years’ legal stay and application in a too-short timeframe), before acquiring Austrian nationality. 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. There are also gaps in safeguards to prevent statelessness in some instances of loss and deprivation of nationality.

Naturalisation

There are facilitated naturalisation procedures for people born stateless in Austria (subject to restrictive conditions - see Prevention & Reduction) 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 were forced to leave, and their direct descendants (children, grandchildren etc.), can acquire Austrian nationality.
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. 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.

Stateless born on territory

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 20 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; demonstrate proficiency in German and pass a nationality test.
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.
There are no specific provisions to protect the right to a nationality of children born to refugees.

Foundlings

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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.

Adoption

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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.

Ius sanguinis

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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 within 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.

Birth registration

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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’.

Reducing in situ statelessness

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Statelessness in Austria mainly occurs 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, which is likely to remain the case given the proportion of asylum applications from Syria in recent years. Recent anecdotal evidence gathered by UNHCR Austria suggests there could also be a significant number of stateless Palestinian refugees from Iraq living in Austria.
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.

Deprivation of nationality

The Austrian Nationality Act contains provisions on loss and deprivation of nationality, which may result in statelessness.
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.
There are no 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. A case is pending before the CJEU to assess whether these provisions are compatible with EU law.
Deprivation of nationality is possible if Austrian nationality was obtained through fraud; 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. There have been ongoing debates in 2020 regarding the introduction of provisions on deprivation of nationality in a national security context.
Austrian nationality obtained through fraud may be withdrawn even if it renders the person 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. 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).

Resources

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.

International and regional treaties

United Nations - Convention relating to the Status of Stateless Persons (Jan 1954)

Council of Europe - European Convention on Nationality (Nov 1997)

Council of Europe - Convention on the Avoidance of Statelessness in relation to State Succession (Jan 2006)

United Nations - Convention on the Reduction of Statelessness (Jan 1961)

Publications

UNHCR - Mapping statelessness in Austria (Jan 2017)

European Network on Statelessness - Thematic briefing: Birth registration and the prevention of statelessness in Europe (Jul 2020)

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)

Additional resources

ASSESSMENT KEY

ADDITIONAL INFO

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