Reinstatement after a missed appeal deadline: requirements under Section 71 AVG and Section 33 VwGVG, the application deadline and the route via Section 60 FPG.
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.
It can happen that the appeal deadline against an entry ban is missed even though those affected made an effort to appeal in time. Illness, defective service or other unavoidable events can cause this. In such cases not everything has to be lost.
For cases like these procedural law provides for reinstatement. Under narrow conditions it allows a missed deadline to be remedied afterwards where the omission occurred without fault of your own.
The short self-check below helps you place your own situation. We then explain the requirements for reinstatement and the relevant deadlines.
Answer one or two questions about the deadline and fault. You will receive a first orientation on the next steps.
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Reinstatement only comes into consideration if the deadline has expired. Check the service date and the end of the deadline.
If the appeal deadline was missed without fault of your own, an application for reinstatement can be filed. The relevant provisions are Section 71 AVG and Section 33 VwGVG. The application must be filed within a certain period from the removal of the obstacle.
Set out the unforeseen or unavoidable event in a comprehensible way and make up the missed appeal at the same time.
If missing the deadline was avoidable, reinstatement is generally difficult because it requires the absence of fault. The facts should nonetheless be examined carefully, because the assessment of fault depends on the individual case.
Independently of this, the option remains to apply later to shorten or lift the entry ban under Section 60 FPG once circumstances have changed.
If the appeal deadline is still open, you do not need reinstatement. File the appeal against the entry ban in time. Make sure the deadline is not about to expire in the next few days.
An appeal filed in time can be supplemented in its reasoning, so the deadline should take priority.
As long as it is unclear when the decision was validly served, it cannot be said reliably whether the deadline is missed. Defective service can mean that the deadline has not yet expired. Check the address and method of service.
Keep envelopes, delivery receipts and notifications to establish the running of the deadline in a comprehensible way.
Reinstatement allows a missed deadline to be remedied afterwards. The requirement is that the deadline was missed through an unforeseen or unavoidable event and that the party bears no fault or only a minor degree of fault. The relevant provisions are found in Section 71 AVG and Section 33 VwGVG.
The entry ban itself is imposed under Section 53 FPG and its duration is set there. Reinstatement does not change this directly, it only reopens the route to the appeal directed against the entry ban. How the underlying deadline runs is explained in the entry on the appeal deadline.
Typical reasons are a serious illness, defective service or a comparable event that prevented the timely appeal. The assessment of fault always depends on the individual case.
The application for reinstatement is time-bound. It must be filed within a certain period from the removal of the obstacle. The missed appeal must be made up together with the application so the proceedings can continue immediately if the application is granted. The entry on the Federal Administrative Court explains which court is competent.
If reinstatement is granted, the deadline is deemed observed and the appeal is dealt with in substance. If it is not granted, the decision remains final. For that reason alone the application should be carefully reasoned and supported with evidence.
Independently of reinstatement a further route remains open. An application to shorten or lift the entry ban under Section 60 FPG is possible once the relevant circumstances have changed. This route exists regardless of whether reinstatement is granted.
Important with a missed deadline: The application for reinstatement is itself time-bound and must be filed from the removal of the obstacle. Do not wait too long, because otherwise this route too can be closed. When in doubt act quickly and arrange an initial consultation (72 euros).
Reinstatement comes into consideration where the appeal deadline was missed through an unforeseen or unavoidable event without fault of your own. The relevant provisions are Section 71 AVG and Section 33 VwGVG. The assessment depends on the individual case.
The application for reinstatement must be filed within a certain period from the removal of the obstacle. The missed appeal must be made up together with the application. If the deadline for the application itself is missed, this route too can be closed.
If reinstatement is not granted, the decision remains final. Independently of this, an application to shorten or lift the entry ban under Section 60 FPG remains possible once the relevant circumstances have changed. The entry ban rests on Section 53 FPG.
In immigration law, deadlines and the right argumentation decide. Call us directly or send an email, callback within one business day.
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