Review the FPG decision and NAG bar separately
Collect the full FPG decision, proof of service and the current status of the entry ban or return decision. Section 11(1)(6) NAG does not answer this separate FPG question.
Unlawful entry and border-control evasion: twelve-month residence bar
Section 11(1)(6) NAG: the twelve-month bar after a final penalty for border-control evasion or unlawful entry, distinguished from section 53 FPG and Article 8 ECHR.
30 September 2026
Proceedings
Mag. Mirela Saric, Attorney at Law
Section 11(1)(6) NAG creates a separate twelve-month bar: as a rule, a residence permit may not be granted if a person has been finally punished within the last twelve months for evading border control or entering Austria unlawfully.
The review depends on the concrete penalty file and the date on which the penalty became final. The authority must be able to identify the penalty and determine whether it still falls within the statutory period when the case is decided. A possible grant despite this obstacle can arise only from a concrete review of private and family life under Article 8 ECHR.
This article deals with the NAG grant obstacle. An entry ban under section 53 FPG, an overstay of an authorised visa-free or visa-based period and the general means-of-support requirements are separate questions.
Classify the grant obstacle
Which entry or penalty situation applies?
This short check separates section 11(1)(6) NAG from an entry ban, an overstay and the possible Article 8 ECHR review.
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What is the focus of your case?
All paths at a glance
Overview of all answers.
Distinguish an overstay under section 11(1)(5) NAG
Review the entry, visa or visa-free status and the exact expiry date. An overstay is addressed separately in section 11(1)(5) NAG and does not replace the review of the section 11(1)(6) penalty ground.
Review finality and the twelve-month window precisely
Put the penalty decision, proof that it became final and the intended application date together. Only then can it be assessed whether the penalty still falls within the last twelve months when the case is decided. This does not promise a grant.
Do not assess the end of the twelve-month period in isolation
If the date of finality is more than twelve months old, the section 11(1)(6) ground may have to be assessed differently under its wording. Other grant obstacles and a separate FPG measure may remain relevant.
Review Article 8 ECHR on the basis of concrete ties
Organise family life, private life, length of stay, integration, ties to the country of origin and the criminal-law situation. Section 11(3) NAG permits a grant despite the section 11(1)(6) obstacle only where this is required to maintain private and family life.
Complete the facts for the Article 8 review
Describe concretely which family or private ties exist and when they arose. For the section 11(3) NAG balancing exercise, the length of stay, integration, ties to the country of origin and the circumstances of entry must also be understandable.
What section 11(1)(6) NAG bars
Section 11(1)(6) NAG names two situations: evading border control and entering Austria unlawfully. It also requires a final penalty. The bar therefore depends on the statutory ground and on the status of the penalty.
The first step is to identify what the penalty concerns and whether the decision is final. A suspicion, a pending proceeding or an incomplete penalty file does not allow the twelve-month period to be classified reliably.
The bar concerns the grant of a residence permit. It does not by itself answer whether a measure ending residence is pending or whether an existing title continues in another form.
How the twelve-month window is reviewed
The statutory wording asks whether the person has been finally punished within the last twelve months. The file must therefore bring together the penalty decision, the date on which it became final and the relevant date in the residence proceedings.
The date of entry, the border check or the report must not be substituted for the date of finality without review. The original documents and the authority file show the procedural status.
If finality lies more than twelve months in the past, the section 11(1)(6) ground has to be reassessed under its wording. Other grant obstacles or a separate FPG measure may remain independent of that result.
Why this bar is not an entry ban
Section 11(1)(6) NAG stands alongside the grant obstacle created by an existing entry ban under section 53 FPG. An entry ban is therefore not the name for every NAG bar. The relevant decision and procedural track must be identified.
An overstay of an authorised visa-free or visa-based period is also regulated separately in section 11(1)(5) NAG. That question requires a review of entry, authorised stay and the expiry date. It does not replace the review of a final penalty under section 11(1)(6).
The general requirements in section 11(2) NAG, including accommodation, health insurance and means of support, are another step in the review. The article on German language proof before a first NAG application covers a separate evidence issue.
When Article 8 ECHR must still be reviewed
Under section 11(3) NAG, a residence permit may be granted despite the section 11(1)(6) obstacle where this is required to maintain private and family life under Article 8 ECHR. The provision calls for a concrete balancing exercise, not a general exception.
The statutory factors include the nature and length of the previous stay, genuine family life, the protection afforded to private life, the level of integration, ties to the country of origin, a clean criminal record and breaches of public order. The point at which private or family life arose despite an uncertain residence status may also matter.
A statement should connect these facts with a clear chronology and suitable documents. The article on the right to be heard in NAG proceedings explains how to prepare such a statement. A grant does not follow automatically from the review.
Which documents matter for the review
The file for the bar should contain the complete penalty decision, proof of finality and identity documents. Entry and residence records, the intended purpose of the stay and the planned application date should also be recorded.
If an Article 8 ECHR review is relevant, the authority needs concrete information about family members, shared life, care responsibilities, work, education, integration and length of stay. The required evidence depends on the actual ties and the procedural stage.
Any entry ban, return decision or other FPG correspondence should be collected separately with proof of service and details of finality. This keeps clear which legal consequence comes from which decision.
Frequently asked questions on the twelve-month residence bar
Is the section 11(1)(6) NAG bar the same as an entry ban?
No. Section 11(1)(6) NAG concerns the grant of a residence permit after a relevant final penalty. An existing entry ban under section 53 FPG is listed separately in section 11(1)(1) NAG.
Which date matters for the twelve months?
The penalty decision, the date on which it became final and the relevant point in the residence proceedings must be considered together. The exact result depends on the complete authority file.
Is an overstay of a visa-free period the same situation?
No. An overstay of an authorised visa-free or visa-based period is listed separately in section 11(1)(5) NAG. It must be distinguished from a final penalty for evading border control or unlawful entry under section 11(1)(6).
Can a residence permit be granted despite the penalty?
Section 11(3) NAG allows a grant despite the section 11(1)(6) obstacle where this is required to maintain private and family life under Article 8 ECHR. The statutory factors must be balanced in the concrete case.
Which documents should I collect first?
Secure the penalty decision and proof of finality together with identity, entry and residence records. An Article 8 ECHR review also requires concrete evidence of private life, family life, integration and length of stay.