Immigration Law: The Impact of the Outbreak of the Corona Crisis on Overstay in Austria

Outbreak of the Corona-Pandemic

In February 2020 at the outbreak of the COVID-19 pandemic in Europe, many foreigners from outside the Schengen-Area stayed in Austria. At that time, they were watching the developments in China, when suddenly their own flights were cancelled, and tourists as well as international business travelers got stranded in Austria.

Overstay

As numerous cases have shown, many foreigners who had a visa that was about to expire were shocked, forgot to act or take legal advice, and eventually overstayed. In particular, travelers who stayed in private houses were not aware that there might be a legal obligation to act.

In the middle of March 2020, the emergency lockdown started, and the Austrian government issued a diversity of regulations. However, the immigration laws did not change. April and May passed. Numerous travelers were trapped and had to wait for the return flight to their home country even until July 2020. Some travelers, however, still regard themselves as not having had the chance to leave the Schengen Area.

Once travelers were lucky to book a flight back home, they certainly had to pass the immigration counter, e.g., at the airport in Wien-Schwechat. Due to the overstay, it was not until that moment that some travelers passing the immigration counter had their awakening.

Illegal Stay in Austria (Schengen Area)

The immigration officer would put the traveler aside for a short chat about Austrian immigration laws and ask about the specific circumstances of the traveler. At the latest at that point in time, the traveler would realize that he or she was illegal in Austria. Basically, the authority (“Bundesamt für Fremdenwesen und Asyl”) only issued the official document “Verständigung vom Ergebnis der Beweisaufnahme” (notification of evidence) to the travelers. Once the traveler confirmed the receipt of the document, the immigration officer granted the exit from Austria as the traveler planned to exit Austria on a voluntary basis anyway.

The “Verständigung vom Ergebnis der Beweisaufnahme” includes the opportunity for the traveler to provide a written statement on the reasons for the overstay and to answer certain questions within a deadline of 14 days. Kindly note that the written request for the written statement (“Aufforderung zur Stellungnahme”) may be hard to notice in certain documents for travelers with little or no knowledge of the German language. This request is sometimes not clearly marked in the document itself and/or the traveler ignores this important information provided by the immigration officer due to the stressful situation.

Risk of an Entry Ban to Austria

An overstay may imply serious legal consequences. E.g., Austrian immigration laws provide that if somebody is illegal in Austria, the authority may ban the person from entering Austria for a certain period of time, even though the person leaves Austria on a voluntary basis. Please note, that such entry ban is valid for the whole Schengen-Area. Depending on the circumstances, an entry ban may be issued up to five years, in serious cases up to ten years, or even for an unlimited period of time.

If a traveler plans to reenter Austria or the Schengen Area and does not wish to face legal problems, it is necessary that the traveler provides the written statement requested by the authority within the deadline of 14 days. The statement has to cover topics such as family, employment, residence, criminal records, social contacts, money and health. Some questions, however, might be considered tricky, if German is not the mother tongue.

Should the written statement fulfill the requirements of the authority, it is highly likely that the authority shows a very generous approach because of the Coronavirus epidemic. In the absence of negligence of the traveler for the overstay, the authority would stop its investigations, and would not impose an entry ban to Austria.

Implications for the Current Corona-Wave

In a summary, a tourist or business traveler, who overstayed because of the first Corona wave and left the Schengen Area on a voluntary basis, basically, did not face a serious aftermath, if the traveler provides the written statement requested by the authority. However, this administrative practice also depends on a case-to-case evaluation of the negligence of the traveler.

In case you are about to overstay or already overstayed in Austria, ask your legal adviser. If you plan to exit Austria on a voluntary basis, make sure you provide the authority with a professionally written statement in German after receiving the “Verständigung vom Ergebnis der Beweisaufnahme” to avoid an entry ban that is valid for the whole Schengen-Area.

This article gives a rough overview of the recent administrative practice on overstay resulting from the outbreak of the Corona crisis. Any liability for the content of this article is ruled out. Should you need further information, please feel free to contact me.

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