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Austria: Deportation of Illegal Aliens

(May 2, 2008) On March 15, 2008, the Austrian Constitutional Court held that the deportation of an illegal alien is unconstitutional if it violates the guarantee of the family of article 8 of the European Human Rights Convention (Docket No. B 16/08 – 7, available at the Constitutional Court of Austria official Web site). In the case under consideration, the illegal alien was being deported for having committed a criminal offense, but she had been residing in Austria for ten years, part of the time legally and part of the time illegally, and she had three children and a divorced spouse who lived in Austria. Under these circumstances, the Court held that the immigration authorities had not adequately balanced the illegal alien's right to her family with the public interest in deporting illegal aliens.

This decision follows a landmark decision of the Constitutional Court of September 29, 2007 (Docket No. 383 Bundeskanzleramt [Federal Chancellery] Web site (last visited Apr. 18, 2008)) that had established that even a criminal conviction is not a sufficient reason to deport an illegal alien, if there are circumstances that make his family life protection-worthy. This Austrian decision quotes several recent cases of the European Court of Human Rights as having established a higher standard of protection of the family life of aliens. In Austria, the European Human Rights Convention (213 U.N.T.S. 221, official Web site of the Council of Europe (last visited Apr. 29, 2008)) ranks as a Constitutional law (Bundes-Verfassungsgesetznovelle, Mar. 4, 1964, Bundesgesetzblatt No. 164/59 (official source)).