Residence ban after prison in Austria: what follows a conviction?

Section 53 FPG authorises the authority to impose an entry ban on third-country nationals where certain conditions are met. A conviction to a custodial sentence of one year or more can justify a ban of up to five years; for more serious offences longer bans are possible. The proportionality of the measure and its compatibility with Article 8 ECHR must be examined.

What to do now: First, clarify the exact sentence and ground of conviction with a lawyer, as these determine the duration and admissibility of the entry ban. Second, document family and social ties in Austria since these affect proportionality. Third, have the authority's decision carefully reviewed and observe the appeal deadlines.

Section 67 FPG permits a residence ban against EEA citizens and Swiss nationals only where their conduct represents a genuine, present and serious threat affecting a fundamental interest of society. A bare conviction does not suffice; the authority must make a future prognosis. For persons with a permanent right of residence the threshold is even higher.

What to do now: First, establish whether a permanent right of residence or enhanced protection under section 67 para 2 or 3 FPG exists. Second, prepare a favourable future prognosis, for instance through evidence of social reintegration, therapy or employment. Third, lodge a timely appeal with the Federal Administrative Court against any decision.

Section 11 para 2 no 1 NAG requires for the grant of a residence title, among other things, that the foreign national has not been finally convicted to an unconditional custodial sentence exceeding three months. Conditional convictions above certain thresholds can also constitute grounds for refusal. The authority must however always conduct a balancing exercise under Article 8 ECHR.

What to do now: First, compare the exact sentence with the thresholds in section 11 NAG. Second, prepare evidence of family ties, length of integration and economic establishment in Austria, as these influence the Article 8 ECHR balancing in favour of the person concerned. Third, submit the application for renewal of the title in good time before expiry and with full documentation.

Decisions of the authority on entry bans or residence bans can be challenged by appeal to the Federal Administrative Court. The deadline is generally four weeks from service. At the same time suspensive effect should be applied for so that the person concerned does not have to leave during the proceedings. The court reviews proportionality and Article 8 ECHR compliance afresh.

What to do now: First, secure the proof of service of the decision and calculate the four-week deadline precisely. Second, apply for suspensive effect simultaneously with the appeal. Third, document all family, social and economic ties in Austria with original documents, as the court conducts its own balancing exercise.