Suspensive effect for an entry ban: what Section 13 VwGVG means, when the BFA withdraws it under Section 18 BFA-VG and what right to remain exists until the decision.
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.
With an appeal against an entry ban a pressing question quickly arises: may those affected remain in Austria until the decision? The answer depends on suspensive effect. It determines whether a measure may be enforced while the proceedings are pending.
Suspensive effect is not a given in every case. It can be withdrawn under certain conditions. Anyone who wants to understand this should read the decision carefully and know the relevant provisions.
The short self-check below helps you place your own situation. We then explain what suspensive effect means and when it can be withdrawn.
Answer one or two questions about the appeal and suspensive effect. You will receive a first orientation on the next steps.
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Suspensive effect attaches to a timely appeal. Without an appeal the question does not arise.
If your appeal has suspensive effect, the entry ban may not be enforced until the court decides. You may therefore in principle remain in Austria. Use this time to support the appeal in substance.
Keep an eye on the stage of the proceedings, because the situation can change through a later order. Keep all documents in order.
If suspensive effect was withdrawn from the appeal under Section 18 BFA-VG, the measure may be enforceable despite the pending appeal. In that case a separate application may be required asking the court to grant suspensive effect. Short deadlines apply.
Set out the disproportionate consequences that immediate enforcement would have, in particular with regard to your ties under Article 8 ECHR.
Whether suspensive effect exists follows from the decision and the further course of the proceedings. Read the operative part and the reasoning carefully for whether a withdrawal under Section 18 BFA-VG was pronounced. Whether you may remain in Austria until the decision depends on this.
When in doubt the stage of the proceedings should be clarified before further steps are taken.
The question of suspensive effect only arises once an appeal has been filed. File the appeal against the entry ban in time first. Only then can it be clarified whether suspensive effect applies or has been withdrawn.
Mind the four-week deadline from service so the decision does not become final.
Suspensive effect means that a contested decision may not be enforced until the appeal has been decided. With an entry ban this means the measure rests while the proceedings are pending. The legal basis is found in Section 13 VwGVG, which in principle grants appeals suspensive effect.
The entry ban itself rests on Section 53 FPG, which governs the imposition and the duration. Suspensive effect changes nothing about this basis, it only postpones the point of possible enforcement. It thus provides a provisional right to remain until the decision. A deeper explanation is offered by the entry on suspensive effect.
For those affected this effect is often decisive. It determines whether an orderly procedure can be conducted in Austria or whether enforcement must be expected beforehand.
Suspensive effect is not present in every case. The Federal Office for Immigration and Asylum can withdraw it under the conditions of Section 18 BFA-VG. In that case the measure may be enforceable despite the pending appeal. Whether such a withdrawal was pronounced follows from the operative part and the reasoning of the decision.
If suspensive effect was withdrawn, a separate application is available asking the court to grant suspensive effect. Short deadlines apply, which is why the decision must be examined carefully and quickly. How the deadline for the underlying appeal runs is explained in the entry on the appeal deadline.
In the reasoning the threatened consequences of immediate enforcement count, such as separation from family members. These circumstances are to be set out in the light of Article 8 ECHR.
Important on withdrawal: If suspensive effect was withdrawn from the appeal, the measure may be enforceable despite the pending appeal. Here short deadlines and a careful review of the decision count. When in doubt act quickly and arrange an initial consultation (72 euros).
It means the entry ban may not be enforced until the appeal has been decided. The basis is Section 13 VwGVG. Those affected may therefore in principle remain in Austria while the effect exists. The entry ban itself rests on Section 53 FPG.
Yes. The Federal Office for Immigration and Asylum can withdraw suspensive effect under the conditions of Section 18 BFA-VG. In that case the measure may be enforceable despite the pending appeal. A separate application to the court may then be required.
As long as suspensive effect exists, the entry ban may not be enforced until the decision, which in principle provides a provisional right to remain. If it was withdrawn, this does not apply automatically. The decision should therefore be examined carefully.
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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