Return decision and entry ban compared: how section 52 FPG governs the obligation to depart, how section 53 FPG sets the re-entry ban and where the difference lies.
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.
In immigration law two terms often appear together that nonetheless mean different things: the return decision and the entry ban. Anyone who receives a decision should keep them apart, because different consequences attach to the distinction.
The return decision requires a person to leave Austria. The entry ban goes further and prohibits re-entry for a set period. Frequently both orders appear in the same decision, yet they can be considered separately and challenged separately.
The short self-check below helps you classify your own decision. We then explain the legal basis of both institutions and their practical differences.
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A return decision requires departure. An entry ban additionally prohibits re-entry for a set period. Often both appear in the same decision.
If only departure is ordered and no duration of a re-entry ban is named, this is a return decision under section 52 FPG. It requires you to leave Austria but does not prohibit return for a set period. The question of a voluntary departure and its deadline thus comes to the fore.
Check whether the return decision is compatible with your ties in Austria. The balancing exercise under Article 8 ECHR can play a role here as well.
If the decision contains both an obligation to depart and a re-entry ban with a set duration, two institutions are combined. The return decision under section 52 FPG requires departure. The entry ban under section 53 FPG additionally prohibits re-entry for the period set and rests on a risk assessment.
Both orders can be considered separately. An appeal may target the obligation to depart, the duration of the entry ban or both.
If it is not clearly apparent whether only an obligation to depart or additionally an entry ban was imposed, it is worth looking carefully at the operative part of the decision. There the orders are expressly designated. What is decisive is whether a set duration of a re-entry ban is named.
The correct classification determines which steps make sense. Keep the full decision to hand in order to clarify the orders point by point.
The return decision under section 52 FPG is the official order to leave Austria. It is directed at people who no longer hold a right of residence and establishes the obligation to depart. As a rule it is combined with a deadline for voluntary departure.
The return decision in itself says nothing about whether and for what period re-entry is prohibited. It concerns solely the obligation to leave Austria. A detailed explanation can be found in the glossary entry on the return decision.
Proportionality plays a role with a return decision too. Where there are close ties in Austria, the measure has to be assessed against Article 8 ECHR. That can be significant in the proceedings.
The entry ban under section 53 FPG goes beyond the mere obligation to depart. It prohibits re-entry and residence for a set period. The authority bases it on a risk assessment and sets the duration within the statutory maximum limits. In this it differs fundamentally from the return decision, which contains no such bar.
While the return decision merely establishes the obligation to leave, the entry ban operates into the future and extends beyond the national border. What the entry ban means in detail is explained by the entry on the entry ban.
Where both orders appear in the decision, it is worth examining each on its own. An appeal may target only the duration of the entry ban without calling into question the obligation to depart as such.
Important: Do not confuse the two orders. A return decision without an entry ban contains no temporal bar to re-entry. Only the entry ban establishes that bar. Anyone uncertain about what was ordered should have the decision examined and arrange an initial consultation (72 euros).
No. The return decision under section 52 FPG requires departure from Austria. The entry ban under section 53 FPG additionally prohibits re-entry for a set period. Both can appear in the same decision but are different institutions.
Yes. A return decision can be issued without a re-entry ban. There is then only the obligation to depart but no temporal bar to return. Whether an entry ban is imposed in addition depends on the requirements of section 53 FPG.
An appeal may target the return decision, the duration of the entry ban or both. Where both orders appear in the decision, they can be examined separately. What is decisive is the appeal deadline, which begins with service of the decision.
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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