Austria - Administrative Court, 15 December 2011, 2011/21/0237

Facts:

The Applicant had been living in Germany since 1992 where he had seven criminal convictions – some of which were serious – and had unsuccessfully applied for asylum. In 2004 he travelled to Austria where he was sentenced to three years‘ imprisonment owing to further serious offences. The Applicant managed to escape from prison in 2005, but was re-arrested in Austria in 2010 and was in prison at the time of this decision by the Administrative Court.

Owing to the criminal convictions of the Applicant, in 2011 the Federal Police Department issued a return decision in accordance with Section 52 (1) Aliens Police Act 2005. A 10-year entry ban in accordance with Section 53 (1) in conjunction with (3)(1) Aliens Police Act was imposed for the entire Schengen area together with the return decision. The appeal lodged against this to the Steiermark Independent Administrative Chamber was unsuccessful. After this the Applicant lodged an appeal at the Administrative Court. 

Decision & reasoning:

Austrian law has been brought into line to implement the Returns Directive to the extent that now a uniform return decision is to be issued to certain third-country nationals who are staying illegally. This return decision is – in principle – to be combined with an entry ban for at least 18 months.

According to the wording of the legislation, the only condition for a return decision that makes it compulsory to leave the country is an illegal stay in federal territory. Any (further) wrongdoing under aliens’ legislation is of significance only with regard to the length of the entry ban to be imposed. If the authority assumes an unlawful stay, it would have no discretion; on the contrary, the return decision “is” in principle to be issued, as also envisaged in Article 6 of the Returns Directive. Furthermore, it is compulsory to issue an entry ban of at least 18 months with the return decision. Under the conditions defined in more detail in the legislation, the entry ban could be issued for five or 10 years or for an unlimited period.

When determining the length of the entry ban, a review on a case-by-case basis should be undertaken (also according to the comments on the Government Bill on the Amendment to the Rights of Aliens Act). In doing so the authority should assess and take account of the previous conduct of the third-country national whether the (continued) residence of the third party national (or the extent to which public policy might be disrupted by the illegal stay as such) might be a threat to public policy or safety or would run contrary to other public interests mentioned in Article 8 (2) ECHR. If the legislator assumes that under certain circumstances an unlimited entry ban should be issued “in any case”, then this is not covered by legislation and would conflict with Article 11 (2) of the Returns Directive (“may”). Also, it should be noted with regard to criminal convictions that it is not a matter of the mere fact of the conviction or punishment, but always applies to the conduct on which it was based and therefore a case-by-case review should be undertaken. The decisive factors for the length of the entry ban are the nature and severity of the crimes on which it was based and the personality profile resulting from this.

Even if the wrongdoing of the third-country national is limited to an illegal stay in federal territory, according to legislation an entry ban of at least 18 months is to be laid down in any case. According to the comments on the Amendment to the Rights of Aliens Act 2011, this 18-month minimum limit for the entry ban, which corresponds to the requirements of the Returns Directive, must make the purpose and the degree of unlawfulness of an illegal stay appropriately clear. Furthermore, this should ensure that immediate readmission and therefore circumvention of the aims of the Returns Directive is prevented.

However, according to the Administrative Court, it should be remembered on this subject that Article 11 (1) of the Returns Directive envisages ordering an entry ban only (a) when no period is granted for voluntary departure or (b) if the return decision is not complied with. A period for voluntary departure should not be granted according to Article 7 (4) of the Returns Directive if the alien poses a risk to public policy, public security or national security. In other cases – therefore in particular if no such risk exists – the order of an entry ban is merely optional in accordance with the last sentence of Article 11 (1) of the Returns Directive. In addition, it should be pointed out that Article 11 of the Returns Directive does not envisage any minimum period and in Article 11 (2) it is ordered without any restriction that the length of the entry ban is determined “with due regard to all relevant circumstances of the individual case”. Within this meaning, it is already generally stated in the sixth recital of the Returns Directive that “decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay”.

According to the system of the Returns Directive, a mere illegal stay therefore still does not represent such a disruption to public policy that it might always be necessary to issue an entry ban. Regardless of this, a return decision could be accompanied by an entry ban; however a compulsory minimum length of 18 months – even if it is often justified – could not be considered in every case for the determination of the length of the entry ban in view of the relevant circumstances of the individual case. Therefore, the Austrian provision, according to which an entry ban of at least 18 months is to be imposed with the return decision without exception, conflicts with the – directly applicable - Directive provision. Furthermore, the Aliens Police Act does not include a shorter period for the entry ban. It might be the case that no entry ban is imposed at all if the wrongdoing of the third-country national is limited to an illegal stay in federal territory and exceptionally the case in point represents only a slight adverse effect on public policy in the field of dealings with aliens.

The Administrative Court continued that, taking account of Article 7 (1) Returns Directive, it is to be assumed that, in the event of imprisonment, the 14-day period for voluntary departure should be determined not as of the time the decision is issued but as of release from prison. Otherwise, a third-country national serving a prison sentence would never enjoy a voluntary departure if the official decision is issued more than 14 days before his release from prison, which conflicts with Article 7 of the Returns Directive. On the other hand, there should also be the option, even in such a case, to (exceptionally) refrain from determining a period for voluntary departure. In the event of imprisonment, the corresponding provision is to be read in such a way that (also) with regard to the requirement of immediate departure, the focus is on the time of release from prison (within the sense of a forecast). 

In this actual case, the Administrative Court arrived at the conclusion that the length of the entry ban imposed amongst other things on the basis of the widespread criminal wrongdoing of the Applicant had been assessed correctly so that the immediate departure of the Applicant after his release from prison had been necessary.

Outcome:

Appeal refused.

Subsequent proceedings:

Not known.

Observations/comments:

AltAlthough this decision did not directly affect an asylum seeker, it can be of significance for “unsuccessful” asylum seekers on the basis of the applicability in principle of the Returns Directive.

At the time the case summary was compiled (24.06.2013), the Police Aliens Act still envisaged that an entry ban of at least 18 months is automatically to be imposed with a return decision (however this did not apply to asylum seekers). An amendment entered into force here as of 01.01.2014: the imposition of an entry ban together with a return decision then becomes optional; however this can also be applied to asylum seekers.

Ruling which was the subject of this decision by the Administrative Court: ruling by the Steiermark Independent Administrative Chamber of 19.08.2011 on Independent Administrative Chamber number 26.12-17/2011

Other sources:

• Comments on the Government bill on the Amendment to the Rights of Aliens Act 2011