Removal of EU citizens of the Union and their relatives

*The term ‘EU citizen’ refers not only to EU citizens, but also to other citizens of the European Economic Area (from Iceland, Liechtenstein or Norway) and or Swiss nationals

Removal steps and procedures such as

• Legal ban on residing in the country
• Expulsion
• Deportation

taken against EU citizens, citizens of Switzerland, and their relatives (including third-contry nationals) are only permitted in very limited cases.

Competent body and legal remedy

The Austrian Federal Office for Immigration and Asylum (→ the Federal Office)^{German text} makes decisions regarding removal from Austria, organising departures and imposing detention pending removal. When deciding on steps to be taken for removal, the Federal Office must also consider possible encroachments on private and family life as defined in Article 8 ECHR of the European Convention on Human Rights (ECHR). A complaint against the decision can be filed with the Federal Administrative Court. This must generally be submitted within four weeks to the authority which issued the decision.

Legal bans on residing in the country issued against EU citizens or their relatives

A legal ban on residing in the country may only be imposed by the Federal Office if the affected person poses a risk to public order or security due to their personal behaviour. This is defined as an actual, present and substantial risk affecting a basic public interest. Criminal convictions alone are just as inadequate as a justification for such action as is the goal of general deterrence.

After ten years of residence, a legal ban on residing in the country may only be imposed if the person’s behaviour would pose a sustained and substantial threat to public security in the Republic of Austria.

A legal ban on residing in the country may be ordered for a duration of no more than ten years, and may be ordered indefinitely only in exceptional cases (such as after conviction in a court of law carrying an unconditional custodial sentence of more than five years, in connection with terrorist offences, posing a threat to national security).

Expulsion of EU citizens and their relatives

If the right to remain under EU law of EU citizens/citizens of Switzerland and their relatives does not apply or no longer applies because

• there is a risk on grounds of public order or security,
• evidence of the registration certificate or residence card cannot be provided for relatives or
• the prerequisites for this right of residence do not apply or no longer apply,

the person affected must be notified in writing. The person must be informed that the Federal Office is considering a case of possible removal, which may result in expulsion.

However, expulsion is not permissible if the person affected entered the country to search for work and can demonstrate that they continue to seek employment with a reasonable prospect of being employed. If the person has already obtained a right of permanent residence, expulsion is only permissible if the affected person’s stay poses a serious threat to public order or security. After ten years of residence, expulsion is only permissible if the person’s behaviour would pose a sustained and substantial threat to public security in the Republic of Austria.

Before any possible expulsion, the Federal Office must undertake a balancing of interests and consider the personal circumstances, especially the length of the person’s stay in Austria, the person’s age, state of health, family and financial status, social and cultural integration within Austria and the extent of ties to the person’s country of origin.

If immediate departure is not required in the interest of public order or security, a deferral of enforcement of one month must be granted as a matter of course. In such cases, obligations may also be issued with the deferral (e.g. in the form of reporting regularly at a police station). Under certain conditions, the deferral of enforcement may be revoked.

Deportation of EU citizens and their relatives

Deportation means that a foreign national who is not (or is no longer) eligible to remain in Austria is forcibly removed from the country. Accordingly, persons subject to expulsion or a legal ban on residing in the country may be deported with the assistance of public safety bodies (regional police force) by order of the Federal Office if

• supervision of their departure appears necessary in order to maintain public order or security,
• they have not fulfilled their obligation to depart on time,
• there are grounds for concern based on certain circumstances that they would not fulfil their obligation to depart or
• they have returned to Austria in breach of an entry ban or legal ban on residing in the country.

As part of the deportation process, custody pending removal may also be imposed if this considered expedient (this does not apply for minors).

Further inks

• Austrian Federal Office for Immigration and Asylum (→ BFA)^{German text}
• Residence formalities (→ Your Europe)

Legal basis

• sections 2, 66, 67, 70, 71, 76 of the Fremdenpolizeigesetz (FPG)
• section 55 of the Niederlassungs- und Aufenthaltsgesetz (NAG)