Author: Dr. Alexander Raidl

Dr. Alexander Raidl, BA ist Rechtsanwalt in Wien mit Schwerpunkten im österreichischen Einwanderungsrecht, Aufenthaltsrecht, Staatsbürgerschaftsrecht und Arbeitsrecht. Er berät und vertritt Privatpersonen sowie Unternehmen in rechtlichen Angelegenheiten, insbesondere bei aufenthaltsrechtlichen Verfahren, Einbürgerungen und arbeitsrechtlichen Fragestellungen. Neben seiner anwaltlichen Tätigkeit ist er als Vortragender am WIFI Wien tätig und vermittelt dort juristisches Fachwissen im Bereich Arbeitsrecht.

The Municipal Department 35 (MA 35) or another immigration authority is not processing my case – what can I do?

Written by Dr. Alexander Raidl on September 10, 2024. Posted in Blog.

Even though the Municipal Department 35 (MA 35), the competent immigration and citizenship authority in Vienna, has hired new staff in recent months and is trying to improve its service, in many cases it still takes months, if not years, for applications for residence permits or for the granting of Austrian citizenship to be approved. As an applicant, are you at the mercy of the authorities and their employees? The clear answer is no. In this article, you can find out what legal options are available to you to defend yourself in the event of protracted procedures.

The authority’s (MA 35) duty to decide

Depending on the type of residence permit or Austrian citizenship applied for, the authority is obliged to make a decision within 8 weeks (Red-White-Red Card) or at the latest after six months (e.g. residence title as a family member or granting of Austrian citizenship). If it fails to do so, the applicant has the right to a default appeal to the competent administrative court. If the administrative court still does not act after a further 6 months, an application to set a deadline can be made to the Supreme Administrative Court.

However, there are also other informal ways to speed up the procedure. For example, it can sometimes be enough for a lawyer to call the MA 35 or send an e-mail to the person responsible and draw their attention to the unfinished file. If this does not help either, there is the possibility of a personal visit by the lawyer to the authority.

Official liability

In any case, it helps to make sure that the person in charge does not deliberately postpone or even obstruct the processing of an application. This can have disciplinary consequences for the persons concerned and may also entitle the applicant to bring an official liability claim.

If your application is not processed by the MA 35 or another immigration authority in Austria, or if you have been treated unfairly or inappropriately by your responsible case officer, book an initial consultation to discuss the next steps together.

Is it possible to have a permanent right of residence in several EU countries?

Written by Dr. Alexander Raidl on September 3, 2024. Posted in Blog.

Can people from third countries have a permanent right of residence in several EU countries? Jim is a US citizen. He was stationed in Germany as a US Marine and decided to live there after completing his military service. He then lived in Germany for over 10 years where he worked as a fitness trainer and was granted permanent residency. He then moved to Austria 5 years ago and works as a tour guide in Salzburg. He is now about to be granted permanent residence in Austria as well, but wonders what influence this could have on his right of permanent residence in Germany.

The final stage of the immigration process

For third-country nationals, the granting of an EU permanent residence title is the final stage in the immigration process, apart from citizenship. In addition to housing, health insurance, a secure livelihood and Module 2 of the Integration Agreement, this requires uninterrupted and actual settlement in Austria for a period of 5 years. This period is only interrupted if the person concerned has resided outside Austria for more than 10 months in total or more than 6 months continuously. This regulation also applies in all other EU states, including Germany.

As soon as a third-country national has acquired the right of permanent residence in an EU country, it is generally easier to obtain a residence permit in another EU country. In Austria, however, this is usually only possible under the same conditions as for Red-White-Red Card.

Expiry of the right of permanent residence

Even if the right of permanent residence is generally valid for an indefinite period, the residence title ‘EU permanent residence’ can also expire again. This is the case if the third-country national spends more than 12 consecutive months outside the EEA territory, e.g. in the USA. Longer stays in other EU countries are therefore not a problem if you receive a residence title and do not terminate the right of permanent residence in this country. However, a ‘permanent residence EU’ residence permit becomes invalid if the person concerned has not resided in the country for 6 years or receives a ‘permanent residence EU’ residence permit in another member state. A third-country national cannot therefore be authorised to reside permanently in two EU states at the same time.

For Jim, this means that he has to decide whether he should actually apply for an EU permanent residence title in Austria or whether he wants to retain his permanent right of residence in Germany.

Residence permit for social service workers

Written by Dr. Alexander Raidl on August 14, 2024. Posted in Unkategorisiert.

In addition to pupils, students or au pairs, social service workers can also obtain a residence permit in Austria.

Alternatives for a residence permit

The Austrian citizen Sophie met the surf instructor John during her last holiday in Bali and takes him with her to Austria. Marriage is out of the question for the time being and it is also not possible for John to obtain a Red-White-Red Card. The only option left to him is to start studying or go to school in Austria in order to obtain a residence permit as a student or pupil.

However, as John no longer wants to go to school and would rather contribute to society, he looks for another way to secure his stay in Austria, at least temporarily, and comes across the possibility of a residence permit for social service workers.

In order to obtain such a residence permit as a social service worker, John must fulfil a whole series of requirements. First of all, he must find a job with a non-partisan and non-profit organisation (e.g. Caritas) that does not pursue profit-making purposes. In addition, he must not be paid for this work, the organisation must issue a declaration of liability for John and the social service must not be subject to the Aliens Employment Act. But that’s not all. The work must also be of a training or further education nature and the general requirements for obtaining a residence permit (secure livelihood, local accommodation and health insurance) must be met.

A further disadvantage of this residence permit as a social service worker is that a change of purpose to another residence title would only be possible as a family member and John Sophie would then have to marry. In addition, this residence permit is issued for a maximum of one year and cannot be extended.

All of these conditions significantly restrict John’s employment opportunities. In particular, it is not possible for him to take on work for which he is not allowed to be paid. John therefore decides against applying for a residence permit as a social service worker and tries to get a place at university so that he can stay in Austria as a student.

Registered partnership and obtaining a residence title in Austria

Written by Dr. Alexander Raidl on August 7, 2024. Posted in Blog.

Is a registered partnership “marriage light”?

Sebastian is an Austrian citizen and has lived and worked abroad for a while, also in China. There, he met Laura, a citizen of the United Kingdom. The two fell in love and moved in together while still in China. After a few years together, both had to return to Europe for professional reasons, Sebastian to Austria and Laura to the UK.

After careful consideration, the two decided to continue their life together in Austria. As Laura only decided to move to Austria after Brexit, she is confronted with the difficult situation that she is now considered a third-country national and that means obtaining a residence permit in Austria is associated with considerable hurdles for her.

It is clear to both of them that the easiest way for Laura to obtain a residence title in Austria would be to marry Sebastian. After that, Laura, who can fulfill the general requirements for obtaining a residence title in Austria without difficulty, could obtain a residence title as a “family member”. During her research, however, Laura comes across the information that not only spouses but also registered partners are considered family members.

Since Sebastian and Laura are not quite sure yet whether they should actually take the big step and marry each other, the idea of entering into a registered partnership, behind which they assume a kind of “marriage light”, sounds very tempting at first. But what are the legal consequences of a registered partnership and is it really just a “marriage light”?

Why is there a registered partnership?

Since the introduction of civil marriage in Austria, this legal institution was only permissible for the establishment of a legally clearly regulated cohabitation between a man and a woman. Homosexual couples did not have the possibility of establishing a civil union, which meant considerable discrimination against this population group. In 2010, after a long period of hesitation, the Austrian legislator created the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz, EPG), which made it possible for persons of the same sex to enter into a form of legally recognized civil partnership largely similar to marriage. Basically, the only difference between a registered partnership and a marriage was that it was only open to homosexual couples and was not called marriage. Different-sex couples still only had the option of entering into a marriage.

However, this changed fundamentally with a ruling by the Austrian Constitutional Court on 4 December 2017. The Court found that a distinction between marriage and a registered partnership cannot be maintained without discriminating against same-sex couples. Since 1 January 2019, both marriage and registered partnership have therefore been available for same-sex or opposite-sex couples.

Difference between marriage and registered partnership

First of all, this means that Sebastian and Laura can in principle enter into a registered partnership, but how does this differ from a marriage?

In short, not at all. Both legal institutions are virtually identical. When the EPG was created, the provisions of marriage law that already existed at that time were adopted, for the most part word-for-word, down to the last detail. A registered partnership, therefore, has the same legal consequences as a marriage. This includes, among other things, the obligation to live together, participation in the acquisition of the other person, payment of maintenance, adoption law provisions, inheritance law provisions and also the provisions on dissolution or divorce. There is only a small difference insofar as the dissolution of the domestic community in a registered partnership creates an absolute ground for dissolution after 3 years, whereas in a marriage it is only after 6 years.

“Marriage light”?

Today, a registered partnership is therefore nothing more than a legal relic left over after the struggle for equality of homosexual couples before the law. A registered partnership is therefore certainly not a “marriage light” for opposite-sex couples who are not sure whether they really want to take the step of marriage and merely want to give their life together an “official” touch. The registered partnership for same-sex couples is the counterpart to marriage, but since the opening of marriage for all in 2019, it is no longer relevant. Austrian law thus creates two types of cohabitation, both of which have the same legal effects. Basically, they only differ in their name and their history of origin.

Significance in relation to the application for a residence title

With this knowledge in mind, Sebastian and Laura finally decide to enter into a marriage, not least because no advantage is apparent for them from entering into a registered partnership. With regard to the granting of a residence title that depends on the partner’s right of residence (such as residence title “family member”, Red-White-Red Card + for family members, residence card, or residence permit “family community”), it makes no difference whether the applicant is a registered partner or the husband or wife of the person entitled to reside in Austria.

Residence title and health insurance in Austria

Written by Dr. Alexander Raidl on April 30, 2024. Posted in Blog, Unkategorisiert.

In order for a residence permit to be issued in Austria, proof of existing health insurance must be provided. This must cover all risks and be liable to pay benefits in Austria. This poses particular challenges for people who are not subject to compulsory health insurance in Austria. Although private insurance policies are accepted, insurance products from abroad generally do not fulfil the necessary requirements. These are therefore usually not accepted by the Austrian immigration authorities.

Residence permit for wealthy pensioners

Max is 76 years old, a US citizen, receives a high pension and also has very good health insurance plan in the USA. He has worked for a US government organisation for decades. Max now wants to see the world. He books a river cruise on the Danube. During a stay in Vienna he likes it so much that he decides to move to Austria permanently.

Max has a sufficiently high income and no longer wishes to pursue gainful employment. So he is eligible for the residence title “Settlement permit – except for gainful employment”. He has also found accommodation in Austria and is currently attending a German course in order to obtain the required language certificate at A1 level.

Health insurance covering all risks for residence permits

The only headache for Max is the health insurance required. Although he has an excellent health care plan in the USA, which also covers the costs of all necessary medical treatment in Austria, he is told by the relevant immigration authorities that his insurance is not sufficient to be recognised as all-risk insurance cover in Austria.

What options does Max have to obtain health insurance in Austria?

People who are not covered by compulsory insurance can take out their own insurance with the (statutory) Austrian Health Insurance Fund (ÖGK). The cost of this is currently (in 2024) € 495.58 per month. The problem for Max, however, is that he has never been covered by statutory health insurance in Austria or the EU in the past. He can therefore only receive health insurance benefits from the ÖGK after a waiting period of 6 months.

However, the immigration authorities require insurance cover from the first day on which the residence permit is issued in Austria. Self-insurance with the Austrian health insurance fund is therefore not an option for Max.

Solution: Private health insurance

Hence, there is e no other option for Max than to take out private insurance. This must cover all risks in Austria, without restrictions. A list of insurance products accepted by the authorities can be found listed below.

However, it is not easy for Max to take out private insurance in Austria because the insurance companies charge relatively high premiums due to his advanced age. However, as soon as he has received a residence permit, he can take out his own insurance with the Austrian health insurance fund and, after the waiting period of 6 months, cancel his private insurance if it is too expensive for him.

ueberblick-krankenversicherungen-3-1 Herunterladen

Property purchase by foreigners in Austria

Written by Dr. Alexander Raidl on April 19, 2024. Posted in Blog.

Property purchase by foreigners in Austria is only possible under certain conditions. Every acquisition of property or a property-like right (building right, personal easement) to a property, regardless of whether a house or a flat has already been built on it, generally requires approval by the competent land transfer authority.

Exemptions from the authorisation requirement

Only third-country nationals are considered foreigners within the meaning of the Vienna Land Acquisition for Foreigners Act. Citizens and legal entities of the European Economic Area (EEA) and Switzerland are exempt from this authorisation requirement and can acquire purchase property without restriction, just like Austrian citizens. Further exemptions exist for diplomatic missions and international organisations or may be regulated by state treaties.

However, there are also exceptions for property purchase by foreigners . They are exempt from the approval requirement if they acquire a property together with their spouse or registered partner who has Austrian citizenship, also within the framework of an owner partnership in a condominium. Furthermore, the acquisition of real estate within the framework of a legal transaction upon death (based on a will or court-ordered inheritance) does not require approval either. Persons who are exempt from the authorisation requirement shall be issued a confirmation by the authorities upon justified application (negative confirmation).

Third-country nationals who do not fall under an exemption provision shall be granted permission to acquire real estate if there is an economic or social interest in the acquisition of the real estate.

On the one hand, a social interest exists if the real estate is to be used to live in it oneself or if the real estate is to be used by a close relative as an anticipation of an inheritance and to create a place to live. This means that the property purchase by foreigners for personal use is in principle possible for third-country nationals. On the other hand, there is an economic interest if the real estate property is intended to serve the settlement or expansion of a business or to maintain an already existing business. Whether such a social or economic interest exists, however, is always a question of the concrete circumstances of the individual case and can therefore not be answered in advance and in general.

Application

A property purchase by foreigners can only be registered in the land register with his or her right to the property if he or she presents a legally binding authorisation from the competent authority. In Vienna this is the Magistratsabteilung 35.

A number of documents must be submitted to this authority for approval of the real estate acquisition. In addition to a substantiated application, the (purchase) contract, a current excerpt from the land register of the property in question, the passport as well as a valid residence title of the applicant or a confirmation of the legally valid existence of a legal entity must be submitted.

Austrian citizenship can be granted to descendants of victims of National Socialism

Written by Dr. Alexander Raidl on April 17, 2024. Posted in Blog.

Austrian Citizenship for victims of National Socialism: On 1 September 2020, an amendment to the Citizenship Act came into force in Austria, which also allows direct descendants of persons who had to leave the country before 15 May 1955 due to persecution by organs of the NSDAP or by authorities of the Third Reich or because of their commitment to the democratic Republic of Austria, or who were deported abroad before 9 April 1945, to be granted Austrian citizenship without having to give up their previous citizenship.

Extension of the application options

The amendment to the law extends the possibility of obtaining Austrian citizenship to nationals of one of the successor states of the former Austro-Hungarian monarchy or stateless persons who had their main residence in Austria and had to leave the country due to persecution by the Nazi regime. These persons can obtain Austrian citizenship by applying to the competent authority. In addition, this possibility has now also been extended to descendants in the direct descending line and adopted children who were adopted as minors.

The ancestor to whom the descendant refers when applying must be considered a persecuted person within the meaning of this law. This person must have acquired Austrian citizenship or at least have been able to acquire it. In view of the fact that the vast majority of those persecuted during the Nazi era have already passed away, the authorities must not place disproportionately high demands on the traceability of the requirements.

Refusal to grant citizenship to victims of National Socialism

The reasons for refusing Austrian citizenship to victims of National Socialism are basically the same as those for granting Austrian citizenship for other reasons. Accordingly, citizenship may not be granted to persons who have been convicted of serious criminal offences or serious financial crimes or to persons who pose a threat to public peace, order and security or who are affiliated with extremist or terrorist groups.

The role of the National Fund in the application for citizenship for victims of National Socialism

In order for an applicant to be able to prove their entitlement to Austrian citizenship, they must submit certificates and documents from which their claim can be derived. As this can be associated with considerable difficulties, the law expressly stipulates that the authorities can consult the National Fund of the Republic as an expert. The task of the National Fund is to provide benefits to victims of National Socialism, in particular to persons who have received no or completely inadequate benefits, who are in particular need of help or for whom support appears justified due to their life situation. The National Fund also supports both survivors of the Nazi regime and their families by offering to carry out family research and thus already has comprehensive documentation at its disposal. As a result, it may also be able to provide the competent authority with the relevant evidence for a claim to Austrian citizenship.

Competent authority

If the requirements are met, the applicant acquires Austrian citizenship retroactively to the date of notification to the authority. The competent authority is generally the provincial government of the province in which the applicant has his/her main residence. Persons who do not live in Austria can submit the application to the Austrian representative authority responsible for their main place of residence. This authority will then forward the application to the competent authority in Austria.

My application to extend my residence permit was rejected – What can I do?

Written by Dr. Alexander Raidl on April 1, 2024. Posted in Blog.

What to do, when the application for a residence permit is rejected? Yulia is originally from Ukraine, has been living in Vienna for 4 years, and has studied architecture at the Vienna University of Technology. She speaks perfect German and works part-time in small jobs as a waitress or promoter. Her right of residence in Austria is based on a residence permit “Student”, which she has to renew every year at the MA 35. For this renewal, she submits both her current study record and a confirmation of her academic achievements in the past year.

This year she has again applied for an extension of her residence permit. She knows that MA 35 is completely overloaded at the moment, and she is therefore not surprised that she has not heard anything from the authority even several weeks after submitting her application. What to do when the authority does not handle your case at all, please click here.

One day, however, instead of the expected confirmation of the extension of her residence permit, she receives a ” Verständigung vom Ergebnis der Beweisaufnahme ” from MA 35, in which she is informed that the authority intends to reject her application because she did not achieve the required minimum academic performance of 16 ECTS in the past academic year. What happened here and what can Yulia do now?

Minimum study performance for the extension of the residence permit “student”?

If you want to migrate to Austria to study here, you first only have to fulfill the general requirements for the issuance of a residence permit. These are sufficient means of subsistence, health insurance in Austria and one must not endanger public order and security. Students no longer have to prove the legal right to accommodation according to local standards.

In addition, it must be proven to the immigration authorities that you have been admitted as a student to an Austrian university, university of applied sciences, or a recognized private university or that you are attending a preparatory course for admission to a regular course of studies as an extraordinary student.

A residence permit “student“ is always issued for one year only and must be renewed thereafter. Each extension requires that, in addition to the requirements already described, proof of the academic success of 16 ECTS or 8 semester hours per week is provided in the past academic year. The required proof of academic success must always be provided in the past academic year. If the application for extension was submitted in November 2020, for example, the authority must consider the academic year winter semester 2019 and summer semester 2020.

Can a residence permit also be granted if no sufficient academic success can be proven?

This is possible, but only under very limited conditions, which often cannot be proven to the authority. This is because there must have been reasons that prevented the achievement of the study success, which the applicant personally had no influence on and which were unforeseeable or unavoidable. This may include, for example, serious illnesses that necessitated a hospital stay of several weeks, but not examination anxiety or stress. The Austrian Supreme Administrative Court has already stated (VwGH 19.3.2021, 2021/22/0033) that study restrictions that occurred due to the Corona pandemic can be considered a recognized impediment, but it always depends on the concrete effects on the applicant.

What can Yulia do now?

Before MA 35 actually issues a dismissive decision, Yulia is requested to comment in writing on the legal opinion of the authority. In her written statement, Yulia explains that she was credited with academic achievements from another study program in the academic year 2019/20, but that the Vienna University of Technology did not enter this credit in her transcript of records until October 2020 for administrative reasons, which is why it now looks as if she did not complete these academic achievements in the academic year 2019/20, although this was very much the case.

What to do when a negative decision is issued?

MA 35 does not recognize Yulia’s argumentation and nevertheless issues a decision rejecting her application for a residence permit. Yulia is appalled by this wrong decision of the authority and wants to take action against it. How can she do this?

An appeal against decisions of MA 35 can be lodged with the Vienna Administrative Court. Such a complaint must be filed in writing with MA 35 within four weeks of the notification of the decision, and it must clearly explain why MA 35’s decision was legally wrong.

The proceedings are then subsequently conducted before the administrative court and thus by an independent judge, who – if so requested – also conducts an oral hearing and examines the facts of the case in detail.

Fortunately, the competent administrative judge recognizes that Yulia has indeed achieved sufficient academic achievements in the academic year 2019/20 and finally approves her application for an extension of her residence permit.

Is personell leasing in Austria possible with a red-white-red card?

Written by Dr. Alexander Raidl on March 21, 2024. Posted in Blog.

The employment of third-country nationals in Austria is generally only possible after a work permit has been issued by the Public Employment Service . Can such an employment permit also be issued for personell leasing?

What is the issue?

In the case of personell leasing, an employer (transferor) makes its employees available to another employer (hirer) for the performance of work. While the employment contract is concluded between the transferor and the employee, the employee is actually deployed by the hirer.

The leased employees provide their services to the employer’s customers, they are integrated into the employer’s operations and all the same protective measures must be taken as for the employer’s own employees. Temporary workers may not be discriminated against and are entitled to appropriate remuneration in line with local practice. This is at least as much as the collective agreement of the employing company provides for a comparable activity of comparable permanent employees.

It is also permissible for lease personell from abroad to be transferred to Austria. However, such employees must also be treated in accordance with the minimum standards applicable in Austria with regard to pay, holidays, notice periods, working hours, etc. A transfer from the EEA is generally not subject to authorisation but an official permit is required for transfers from other countries.

Can an employee from a third country be employed in Austria through personell leasing?

The Aliens Employment Act expressly stipulates that an employment permit may only be issued if an employer will employ a worker in a position in his own company. The personell lease is therefore expressly excluded.

An exception exists in the event that the employer has a special permit for the transfer of labour from abroad to Austria. In this case, an employment permit can also be issued in the case of a cross-border supply of labour. However, such a special permit may only be issued if this is absolutely necessary for labour market policy and economic reasons, if the workers are only available through labour leasing and if this does not endanger the wage and working conditions of domestic employees.

Is there a red-white-red card for personell leasing?

As the requirements for the issue of an employment permit must also be met when applying for a Red-White-Red Card (i.e. a residence permit combined with an employment permit), the employer must also employ the third-country national worker in a workplace in his own company. The hiring out of labour in conjunction with a Red-White-Red Card, an EU Blue Card or as a dependent artist is therefore not permitted. Only a Red-White-Red Card Plus or a permanent residence permit provide unrestricted access to the Austrian labour market.