Section 59(2) FPG can postpone enforceability of a return decision during a criminal-court-ordered custodial sentence. What matters for time limits and deportation.
Mag. Mirela Saric
Attorney at law · German and BCS
Mirela Saric assists clients in immigration matters with a clear structure: review the decision, secure deadlines, define the strategy and act quickly. She advises in German and Bosnian/Croatian/Serbian.
A custodial sentence can postpone when a return decision becomes enforceable. Section 59(2) of the Austrian Foreign Police Act, FPG, governs this specific period. The return decision and any entry ban remain decisions in force, while the timing of enforcement must be assessed separately.
The distinction matters in practice: postponement during custody is not an appeal against the decision and is not an independent prohibition on deportation. It answers when the return decision becomes enforceable.
This article explains postponement under section 59(2) FPG, its relevance to the voluntary departure period and the documents needed for a timeline review. The requirements for an appeal, a prohibition on deportation and a reduction of an entry ban remain separate issues.
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The exact decision, the length of the custodial sentence and any separate appeal issue determine the first review.
Section 59(2) FPG links the postponement to a custodial sentence imposed for a criminal offence. Keep the decision, the criminal judgment and documents showing the duration of custody.
The postponement does not remove the return decision. It identifies the period during which its enforceability is postponed.
Check when custody ended and which return decision applies. Section 55(2) FPG links the voluntary departure period to enforceability or to the end of the reason for postponement.
The decision, release confirmation and later official correspondence provide the basis for the timeline.
The statutory postponement during custody concerns when the return decision becomes enforceable. The suspensive effect of an appeal follows separate procedural rules. Both questions must be reviewed separately using the decision and the current procedural status.
Section 59(2) FPG provides that the entry into force of enforceability of a return decision is postponed for the duration of a custodial sentence imposed for a criminal offence. The provision therefore creates a statutory timing effect. It does not require a separate authorisation of the postponement by the immigration authority.
The relevant custody must be based on a criminal court decision. The review therefore needs the criminal judgment and the actual custody period. An assumption about a possible sentence or a short official notice is not enough to reconstruct the timeline reliably.
The postponement changes the timing of enforceability. It does not annul the return decision or decide whether the decision was lawful when issued. It also does not by itself cancel or reduce an entry ban.
Similar terms lead to different reviews. The decision and the current procedural status determine the next question.
| Issue | Core question | Legal reference |
|---|---|---|
| Postponed enforceability When does the return decision become enforceable? | Custody imposed by a criminal court | |
| Suspensive effect Can a challenged decision be enforced while the appeal is pending? | Appeal proceedings and the procedural rules that apply to them | |
| Prohibition on deportation Can deportation be carried out to the particular destination country? | Destination-country obstacles under section 50 FPG |
Section 55(2) FPG generally provides a 14-day period for voluntary departure from the point at which the return decision becomes enforceable. If enforceability is postponed under section 59(2) FPG, the period must be assessed from the end of the reason for postponement. The exact starting point therefore depends on the custody period and the specific decision.
The release date is an important reference point, but it does not replace a complete review of the decision. The operative part, proof of service, any period already granted for voluntary departure and later official correspondence must also be read. A separate appeal or another statutory effect may affect the assessment.
A dated timeline is useful in practice. Record the issue and service of the return decision, the start and end of custody, the release date and every notice concerning voluntary departure or impending enforcement.
The complete decision shows the operative part and service.
The custody must be based on a criminal court decision.
The postponement is linked to the duration of custody.
Only then can the next period be assessed reliably.
The review needs the complete return decision and proof of service. It also needs the criminal court decision, confirmation of the start and end of custody and every notice served after release concerning departure or deportation.
A single timeline is useful. Arrange each document by date and note the legal question it concerns. This keeps criminal custody, the return decision, the voluntary departure period and any enforcement measure separate.
If an entry ban, a destination-country issue or an appeal is also pending, record each issue separately. The overview of operative points in a return decision and entry ban helps with the first document review.
Postponement under section 59(2) FPG answers the timing question of enforceability. It does not by itself establish whether the return decision was lawful. That requires a review of the operative part, reasons, service and available legal remedies.
The postponement also does not replace a destination-country review. If a risk in the destination country is alleged, the prohibition on deportation under section 50 FPG is a separate legal issue. The overview of deportation, return decisions and entry bans explains these levels of enforcement.
An entry ban has its own legal effect. Its issue and duration are not automatically changed by postponed enforceability. The overview of appeals against entry bans addresses the separate appeal review.
A common mistake is to equate a custodial sentence with cancellation of the return decision. Custody can postpone when the decision becomes enforceable. The decision itself remains an official decision.
Another mistake is to calculate the voluntary departure period from the date of the judgment even though enforceability and the actual custody period must be reviewed. Section 55(2) FPG links the starting point to the statutory rule and the facts of the case.
A third mistake is to merge the issue with suspensive effect. An appeal, its effect and statutory postponement during custody have different legal triggers. The documents should therefore be separated by legal question.
Important: The time limit review depends on the return decision, the criminal-court-ordered custody and the actual timeline. The release date alone does not answer the enforcement question.
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No. Section 59(2) FPG can postpone enforceability during a relevant period of custody. The return decision remains a decision in force.
Section 55(2) FPG links the generally 14-day period to enforceability of the return decision. If enforceability is postponed under section 59(2) FPG, the end of the reason for postponement is important for the further assessment.
No. Section 59(2) FPG links postponement to custody. Suspensive effect concerns the consequences of an appeal and must be reviewed under the rules that apply to that appeal.
Read the return decision and entry ban as separate operative points.
The levels of enforcement and their different legal effects.
Review the remedy, time limit and suspensive effect separately.
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