Courts overturn several administrative criminal cases against Nigerians
Courts suspend multiple administrative penalties of a Nigerian
Mr. E. is a Nigerian citizen against whom, by decision of the Federal Office for Foreign Affairs and Asylum of July 2016, a five-year entry ban was issued. He received two convictions for offenses according to the Narcotics Act in 2012 and 2013. Since 2013, he has shown integrity.
In May 2017, Mr. E. married an Austrian citizen who, through her employment in Spain from October 2017 to January 2018, exercised her right to freedom of movement under the EU Citizen's Directive. In November 2018 he was charged by the Vienna Aliens Police with a penal order of €500 for not leaving the country after a residence ban was issued against him.
Subsequently in December 2018, he lodged an appeal against the order. As a result in December 2018, he was fined with a €550 penal order. The appeal filed in December 2018 was rejected by the Administrative Court (AC) after a hearing was conducted in February 2019.
Consequently in March 2019, Mr. E. filed a High Court appeal to the Supreme Administrative Court (SAC), which, in its decision from August 2018, suspended the decision on grounds of unlawfulness. The SAC argued that the residence ban was not enforceable, which is why Mr. E. could not be punished for the absence of illegal residence. Thereupon, the AC, in its decision from October 2019, granted the complaint and dismissed the case.
In another proceeding, Mr. E. was punished with a penal order December 2018 with a fine of €5000 for attempting to enter Austria at Schwechat airport in February 2018. This attempted entry was deemed as unauthorized in accordance with Section 120 (1c) Aliens Law. As a result at the end of December 2018, he filed a complaint to the Lower Austria Regional Administrative Court (LARAC), which, in its decision 2019, granted the complaint and overturned the administrative penalties.
The LARAC argued that the residence ban imposed by the Federal Asylum Office (FAO) in July 2016 for a period of four years, was suspended by a decision of the Federal Asylum Court (FAC) from March 2019. In addition, the expulsion order issued by the legally binding decision of the FAO in July 2017 become irrelevant. Since there currently was no residence ban in place against Mr. E.., the administrative offense could not be imputed charged to him, which is why the penal order was to be suspended.