The Fremdengestz (FdG, Aliens Act) provides for two different sanctions to oblige a foreigner to leave the country: the Aufenthaltsbeendigung (expulsion) and the Aufenthaltsverbot (residence ban). With regard to expulsion the Fremdenpolizei (Aliens Police) has to differentiate whether the concerned persons does or does not hold a valid residence permit. Those third country nationals who do not hold a residence permit may be expelled if they are illegally employed, if they illegally crossed the border, or if they infringe certain laws within the first month of their stay (Aliens Act article 33 paragraph 2 no. 5 and 6).

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The Fremdengestz (FdG, Aliens Act) provides for two different sanctions to oblige a foreigner to leave the country: the Aufenthaltsbeendigung (expulsion) and the Aufenthaltsverbot (residence ban). With regard to expulsion the Fremdenpolizei (Aliens Police) has to differentiate whether the concerned persons does or does not hold a valid residence permit. Those third country nationals who do not hold a residence permit may be expelled if they are illegally employed, if they illegally crossed the border, or if they infringe certain laws within the first month of their stay (Aliens Act article 33 paragraph 2 no. 5 and 6).

The Aliens Police may impose an expulsion order according to article 34 Aliens Act if:

- there are grounds for rejection which become known at a later date

- fraudulent marriage is involved

- a third country national who has lived in Austria for less than eight years has been unemployed for a year

A residence ban, according article 36 of the Aliens Act may be imposed for example in cases of:

- criminal conviction involving prison sentences

- repeated penalties relating to the violation of certain administrative regulations, e.g. trading ordinance, or illegal residence

- false claims made to an Austrian authority in order to obtain a residence authorization

- unregistered employment

- fraudulent marriage in return for money.

The district administrative authority or the Aliens Police have to check in every case whether the protection of private and family life are grounds for expulsion or a residence ban. Articles 35 and 38 of the Aliens Act contain provisions that expulsion or residence ban are not allowed, if the third country national is already “integrated”, which means legally for at least five/eight years in the country (provisions pertaining to progressive residence security). In cases of illegal employment no residence ban may be imposed if the person could have worked legally for the same employer.

Illegal employment is monitored by the Arbeitsinspektorat (labor inspection), which belongs to the administrative unit of the Arbeitsmarktservice (Labor Market Service). This agency is supported by the health service, and the regional and Länder Labor Market Service, article 26 Aliens Employment Act. The infringement of administrative offences is monitored by the Labor Market Service, which then has to initiate procedures according to sections 26 to 29a of the Verwaltungsstrafgesetz (Administrative Offences Act).

If a foreigner has committed an infringement which is defined as a criminal offence, for example in severe cases of human trafficking, the office of the prosecutor and the Criminal Court are responsible.

Asylum seekers applying at the airport can be held in the airport's transit zone whilst awaiting the decision of the Federal Asylum Office on whether their application is admissible and not manifestly unfounded. They may also be subject to detention measures during the asylum procedure, in particular if they have entered the country illegally and/or do not have any provisional right to stay. Such detention must not exceed a total period of six months. Rejected asylum seekers may be arrested and held in custody to ensure deportation or forcible return to their country, in accordance with Article 61 of the Aliens Act. The maximum period of time allowed for such pre-deportation detention is two months. Under particular circumstances, however, this may be extended for a further four months, i.e. for a total of six months. Those who cannot be removed or deported are released from detention, but do not receive any kind of residence permit.

Article 16 1b of the Aliens Act provides for withdrawal of the long-term residence status if the holder has given up his/her will to be settled in Austria (Niederlassungswille) and has left Austria for good. The provision also means that a person who leaves Austria for a longer period of time than 2 years and who can demonstrate that this is not for good, may avoid withdrawal of the long-term residence status. There is no provision in the law that absences of less than 2 years will not lead to withdrawal of the status, but this will be examined individually in every case.

Holders of a Niederlassungsnachweis (Certificate of Residency) are subject to the same system of expulsion and residence bans as any other immigrant. This first grade of security of residence (article 35 paragraph 1 Aliens Act) means that after 5 years of legal residence the immigrant is protected against expulsion if s/he has problems with meeting the otherwise required criteria with regard to the income situation. This protection against expulsion is subject to the immigrant’s ability to demonstrate that s/he is willing and trying to care for her/his living and this has a realistic chance of succeeding.

In the period between 5 and 8 years of legal residence holders of a Certificate of Residency may still be expelled if they have not had gainful employment nearly without interruption for one year. This is regardless of whether the person has received unemployment assistance. Only after 8 years of legal residence the immigrant is protected against expulsion without such restrictions. After 10 years of uninterrupted legal residence, expulsion may only be imposed in case of severe or repeated criminal offences. Immigrants who were born and/or have grown up and lived for a long time in Austria may not be expelled at all. A person who may not be expelled may also not have a residence ban imposed.

Illegal trafficking in human being is qualified as a criminal offence and is punishable according to section 104 (fines) and 105 (imprisonment) of the Strafgesetzbuch (Criminal Code). If trafficking in human beings or the arranging of fraudulent marriages is a business activity, the offender may be imprisoned for up to three years (section 105 paragraph 2, paragraph 106).

Victims of trafficking have access to special support services: they are accommodated in a safe place and may be granted a temporary residence permit. However, practice varies according to the region and depends on the individual case; there are several advisory centers for victims of violence or trafficking in women, which can give relevant information. Witnesses may not be held in police custody. However, they may be detained if they are also accused of illegal residence/employment or of another offence.

There exist numerous reports of incidents of discriminatory behavior and sometimes violent behavior on the part of the police vis-à-vis people of immigrant origin. Although foreigners and Austrian citizens of immigrant background are not the only alleged victims of this type of behavior, a considerable number of allegations come from members of these groups. The acts most frequently cited are discriminatory identity checks, insults, bodily injuries, humiliating treatment and arbitrary detention. In some instances, police officers are also alleged to have used racist language. When formal complaints have been lodged, the victims have in most cases been accused of resisting a public officer in the execution of his duties or defamation. This situation discourages potential complaints of abuse committed by the police.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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