Deportation without a detention order: 48 or 72 hours in custody?

Public security officers are empowered by § 40 BFA-VG to arrest a foreign national for the purpose of bringing that person before the Federal Office for Immigration and Asylum, known as the BFA. Where deportation is imminent, a key question is whether an arrest order under § 34 Abs. 3 Z 3 BFA-VG exists and the arrest is based on § 40 Abs. 1 Z 1 BFA-VG. An arrest order and a Schubhaft order provide distinct legal bases. The absence of a Schubhaft order therefore does not in itself make this short period of custody unlawful. What matters is the existing order, its specific purpose and how it is implemented.

The limits assigned by § 40 Abs. 4 BFA-VG depend on the ground of arrest: a maximum of 48 hours applies under Abs. 1 Z 2 or Z 3 and under Abs. 2, while a maximum of 72 hours applies under Abs. 1 Z 1. Consequently, the precise subsection and point matter. Record the time when the deprivation of liberty actually began and every transfer. A new time allowance for the same continuous custody is not created by moving someone to another police detention centre. § 40 FPG concerns a different context and must not be confused with § 40 BFA-VG.

Once the necessary procedural steps have been completed, § 34 Abs. 4 BFA-VG requires release from custody based on an arrest order. The 72 hours constitute an outer limit. The authorities must also be able to explain why the actual duration was necessary for the purpose pursued. Examination of what further action was actually possible is called for by a cancelled flight, missing travel documents, or extended periods without an identifiable procedural step. These circumstances do not automatically require release, but may undermine the basis for continued custody. That examination cannot be replaced by a general reference to planned deportation.

For deprivation of liberty beyond the time limits, § 40 Abs. 4 BFA-VG refers only to § 77 Abs. 5 FPG or Schubhaft under § 76 FPG. An independently valid legal basis is required for each. Where a less restrictive measure applies, the coercive powers necessary to enforce deportation and necessary directions to remain at specified places for periods totalling no more than 72 hours are what § 77 Abs. 5 concerns. This does not constitute an automatic additional time allowance. Precisely check the time and legal basis of any claimed change. Detention in the border asylum procedure under § 40a BFA-VG follows a separate procedure and cannot serve as a substitute basis for excessive short-term custody.

Pursuant to § 22a Abs. 1 Z 1 and Z 2 BFA-VG, an application alleging unlawful arrest or custody, including after custody has ended, may be filed by the person concerned with the Federal Administrative Court. The specific measure, period, and responsible authority must be identified in the complaint. Generally, § 7 Abs. 4 VwGVG provides six weeks for a complaint against coercive administrative action, and the commencement of this period is affected by knowledge of the measure and any impediment to exercising the right to complain. The one-week period in § 22a Abs. 2 BFA-VG concerns a decision on the continuation of Schubhaft. A ruling on every short period of custody before departure is not guaranteed by it. A separate examination is required for a challenge to deportation itself.

Ask for written confirmation of the arrest under § 40 Abs. 4 BFA-VG. Should an arrest order exist, § 34 Abs. 5 BFA-VG entitles you, upon request, to a copy immediately or within the subsequent 24 hours. Counsel also requires the case reference, arrest time, police locations, transfers, announced procedural steps, and what actually occurred. In Ro 2015/21/0025 of 3 September 2015, the Austrian Supreme Administrative Court demonstrated that actual coercive custody pursuant to BFA instructions can be material for judicial review even where no fresh arrest was formally announced. Record the actual sequence of events and the information provided as accurately as possible.