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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.

Residence marriage and police check

Written by Dr. Alexander Raidl on . Posted in Unkategorisiert.

What is a residence marriage?

Ada is a Polish citizen and married to Ahmed, an Iranian citizen. Both want to live together in Austria and therefore apply for the necessary documents from the immigration authority responsible for their place of residence. For Ada this is a registration certificate and for her spouse, who is a third-country national, a residence card must be applied for. A few days after the application is submitted, the police knock on Ada and Ahmed’s door and want to have a look round the flat to see if Ada and Ahmed are actually living there together. Is this legally permissible?

In general, spouses or registered partners of Austrian citizens or EEA citizens authorised to reside in Austria under EU law also have the right of residence in Austria and the competent authorities are obliged to issue a residence permit. However, it can happen that after the application for a residence title has been submitted to the immigration authorities, the suspicion arises that the marriage only exists to obtain a residence title for the third country national. A residence marriage means that the two spouses or partners are not living together as a family. If this is the case, no residence permit may be issued and criminal proceedings must be initiated against both spouses. But how can the immigration authorities determine whether or not a marriage of residence actually exists?

Police investigations and house searches on suspicion of a marriage of residence

If the immigration authorities suspect that a marriage of residence or a partnership of residence may exist in a particular case, they must inform the police. The police are then obliged to carry out investigations into this suspicion.

In the course of these enquiries, the police are obliged to determine whether there are in fact indications that the marriage is a marriage of residence. The first stop for the responsible officers often leads to the address given as the marital home and the officers “ask” to be allowed to look round the flat. Do you have to let the police into your home in such a case?

In principle, the police may only search your home with a court authorisation. The only exception is in the case of imminent danger. If there is – often only a vague – suspicion of the existence of a marital relationship, there is usually no imminent danger and a house search is not permitted without a court order.

However, as soon as the police are voluntarily allowed into the home, these provisions no longer apply and the police can subsequently utilise all the results of their investigations, even if this is to the disadvantage of the people living in the home.

Proof of joint family life

As Ada and Ahmed lead a happy family life, as indicated by the numerous photos they have taken together and put on the walls of their flat, their clothes and the double bed in their flat, Ada lets the police into her flat, where they have a look around and subsequently stop their investigation on suspicion of a marital relationship between Ada and Ahmed. As a result, both of them are granted the residence documents they applied for by the immigration authorities.

Austrian citizenship for stateless persons

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

Anyone who does not have a nationality under the law of any country in the world is considered stateless. In principle, stateless persons acquire Austrian citizenship under the same conditions as all other persons with non-Austrian citizenship. There are, however, some simplifications for people who were born in Austria.

There are many reasons why people can be stateless, such as political upheavals and crises in their home country, discrimination and persecution, contradictory legislation in individual countries or simply because their own parents were already stateless.

In principle, stateless persons can only acquire Austrian citizenship under the same conditions as other people with non-Austrian citizenship. You can find more information on this here.

However, if a stateless person was born in Austria and has had their main residence in Austria for at least 10 years, they can obtain Austrian citizenship without having to fulfil the general requirements for obtaining citizenship (such as minimum income and language skills). There must be no grounds for refusal, such as a criminal record, and the person must be at least 18 years old. But beware, citizenship can only be applied for up to the age of 21.

The City of Vienna was the first federal state to publish its own information page on this topic. Advice from a law firm replaces the initial information event and has the advantage that your own case and individual questions can be dealt with individually.

We are at your side as a reliable partner in the preparation and processing of your application for Austrian citizenship. Book your appointment for an initial consultation here!

Effects of a criminal record on the right of residence in Austria

Written by Dr. Alexander Raidl on . Posted in Unkategorisiert.

A criminal record can have very unpleasant consequences and can have a lasting impact on your life for years to come. What impact can a criminal record have on the right of residence of immigrants?

Criminal law consequences of a car accident

Rajid is an Indian citizen and has been working as a highly qualified IT specialist in Austria for several years and lives here with his family. He has a red-white-red card plus, owns a flat for which he is paying off a loan and is provided with an SUV as a company car by his employer.

One evening, after the departmental Christmas party at his company, Rajid drives home from his office in his company car. He has to drive a short distance on the motorway. Because he has had a stressful week and also had a glass of wine at the party, Rajid accidentally takes the wrong lane on the motorway slip road and ends up driving the motorway in the wrong direction. Just a few seconds after joining the motorway, Rajid realises his mistake and wants to stop and turn around, but it’s too late. Rajid collides head-on with a small car in his SUV. While Rajid is able to get out of his vehicle unharmed, the driver of the small car dies at the scene of the accident.

Due to his alcoholisation, even if only slight, Rajid is sentenced by a criminal court to a fine for negligent homicide and therefore has a criminal record. How does this affect his right of residence in Austria?

Criminal record and public order and safety

The immigration authorities are obliged to check whether the issuing a residence permit is contrary to the public interest. This is the case, among other things, if the stay would endanger public order or security. If the applicant already has a criminal record in their country of origin (the authority always requires an extract from the criminal record of the country of origin and those countries in which the applicant has lived for more than 6 months), the authority must draw up a risk prognosis. In doing so, it must take into account the specific misconduct that resulted in the previous conviction. However, the threat to public order and safety may not only be due to criminal convictions. Reports alone can also be sufficient for the immigration authorities to assume a threat to public order and security.

A criminal conviction that occurs after a residence title has been issued can have an impact on the renewal of an existing residence title, as the immigration authorities also examine in a  renewal or change of purpose case whether the residence is contrary to public interests. On the other hand, a residence title that has already been issued can also be revoked if the Federal Office for Immigration and Asylum has issued a return decision and a threat to public order and security can be assumed as a result. Here too, the nature and seriousness of the offence on which the crime is based and the resulting personality profile must be assessed. However, the revocation of the residence permit can be prevented even in the event of a threat to public order and security if this would interfere with the constitutionally protected right to private and family life.

Future prognosis

In view of the fact that Rajid, apart from this conviction, has not shown any conspicuous behaviour towards the authorities and that he also admitted his guilt during the criminal proceedings, took responsibility for his crime and attended addiction therapy, the immigration authorities do not assume that there is a threat to public safety. Rajid’s current residence permit will therefore not be revoked and he still has the chance to obtain a permanent residence permit in Austria as soon as he has been resident in Austria for at least 5 years.

Reisepass Oesterreich

Danger to public peace, order and security – citizenship denied

Written by Dr. Alexander Raidl on . Posted in Unkategorisiert.

Can the awarding of Austrian citizenship be denied even though all the conditions for granting are actually met? Yes, if this would mean a danger to public peace, order or security.

Abdul has been living in Austria for almost 10 years as a recognised Convention refugee. He is excellently integrated, has passed a German language exam at C1 level and has been working for several years as a branch manager of a large retail chain.

Abdul has applied for Austrian citizenship. Although he fulfils all the requirements for this, such as a sufficiently long, continuous and lawful stay in Austria, a clean record and a secure livelihood, he is denied Austrian citizenship. The authorities justify this on the grounds that he poses a threat to public peace, order and security. What happened?

When can the granting of Austrian citizenship be denied?

One of the conditions for granting Austrian citizenship is that the applicant has an affirmative attitude towards the Republic of Austria and does not represent a danger to public peace, order and security or other constitutionally protected public interests.

In this context, the citizenship authority examines whether the applicant has committed criminal offences in the past. It does not matter what kind of law has been violated and whether these are judicially punishable acts or administrative offences. It is not even necessary that there has been a final conviction or that the penalty has actually been imposed.

The examination depends on the overall behaviour of the applicant. This is determined by his character profile, which results from the type of offence committed. It also depends on the seriousness of the offence committed and how long it has been since the time of the authority’s decision. The shorter the period of good conduct between the offence and the granting of Austrian citizenship, the more likely this will constitute an obstacle to the granting of Austrian citizenship?

Which offences are considered a threat to public peace, order and security?

The most frequent reason for refusing to grant Austrian citizenship is traffic offences. On the one hand, it depends on the severity of the violation of the Road Traffic Act, as well as on its frequency. A one-time fine for exceeding the maximum speed limit will usually not constitute an obstacle to awarding, especially since this is often punished in the form of an anonymous order anyway and, if paid in due time, will not appear again at a later date. Administrative penalties for serious traffic offences, such as excessive speeding, driving through a red light, driving under the influence of alcohol or driving without a licence will in most cases prevent the awarding of Austrian citizenship.

Apart from traffic offences, all other criminal offences will also be included in the assessment. Criminal convictions to a custodial sentence are an obstacle to the granting of citizenship anyway, but also offences after which there was no conviction or punishment because they could be settled out of court or were discontinued will be assessed in the citizenship procedure within the framework of an overall assessment of conduct. This means that the mere fact that administrative and or/ criminal proceedings were conducted against an applicant in the past may be sufficient that the awarding of Austrian citizenship could be denied.

Consequence for applicants

Abdul worked as a taxi driver for several years before his current job. In the course of this job he received numerous administrative fines for several minor violations of the Road Traffic Act. The last fine he received was about 2 years ago with his private car for unauthorised parking in a no parking and no stopping zone. The competent citizenship authority could therefore not arrive at a positive future prognosis with regard to Abdul’s character picture and had to assume that he would continue to disregard the provisions of the Road Traffic Act in the future. However, if Abdul now behaves inconspicuously for several years and does not commit any new traffic offences, a new application for Austrian citizenship may be successful.

Ausländerbeschäftigung

Change in the role of the AMS Regional Advisory Council in the granting of emplyoment permit

Written by Dr. Alexander Raidl on . Posted in Blog.

On 20 July 2023, several amendments to the Employment of Foreign Nationals Act (Ausländerbeschäftigungsgesetz) in connection with the granting of employment permits to foreign nationals came into force in Austria. These amendments provide relief if the regional advisory board of the Public Employment Service Austria (AMS) does not approve the granting of an employment permit.

Repeal of the law by the Constitutional Court

In its decision of 14 December 2021, the Austrian Constitutional Court had completely repealed the provision of the Employment of Foreign Nationals Act that required unanimous approval of the granting of an employment permit by the Regional Advisory Board of the Public Employment Service Austria (AMS). This was justified by the fact that an administrative authority is thus bound in its decision-making competence to the approval of a non-authoritative body.

Employment of foreigners for particularly important reasons

For this reason, a new regulation has now been created that enables the granting of an employment permit even if the Regional Advisory Board of the Public Employment Service Austria does not agree. Accordingly, the granting of an employment permit is now also permissible if the employment of a foreigner is necessary for particularly important reasons. Such important reasons are, on the one hand, the preservation of existing jobs of domestic workers and, on the other hand, the employment of a qualified worker in a shortage occupation. In addition, such an important reason can also be justified by a public or supra-company macroeconomic interest.

Residence permit family community

In this context, the employment of persons with a “family community” residence permit (such as spouses of persons with a residence permit) was also newly regulated. Such persons can also obtain an employment permit without the consent of the AMS regional advisory board, provided that all other requirements are met, such as a positive labour market check.

Meaning of a change of purpose application for a residence title

Written by Dr. Alexander Raidl on . Posted in Blog.

What are the advantages of a change of purpose application and what distinguishes it from a renewal application or initial application?

Tim is a US citizen, studies in Austria and has had a residence permit “student” for several years, which he has to renew annually. He has been together with Andreas, an Austrian citizen, for 2 years now and is already living with him in his flat. They are also planning to enter into a registered partnership next year.

In the past academic year, Tim had a lot on his plate and could not concentrate properly on his studies. After he has applied again for an extension of his “student” residence permit, he receives information from the immigration authorities that he did not achieve the required academic success in the past academic year to extend his residence permit.

Tim is initially devastated, but Andreas knows that registered partners can obtain a residence title in Austria as family members. The two therefore conclude the registered partnership earlier than originally planned and assume that the authorities will simply grant Tim the right residence title. What do you have to pay attention to?

Application for a change of purpose in case of a change of the purpose of residence

If during the current period of validity of an already existing residence title the requirements change so fundamentally that a new residence title with a different purpose of stay can be applied for, an application for a change of purpose can be submitted to the competent immigration authority at any time, even before the current residence title expires. The advantage of such a change of purpose application is that it can be filed within the country. Even a rejection of an application for a change of purpose has no effect on the existing right of residence. An application for the extension of an existing residence permit can therefore still be submitted as long as the current residence title is still valid.

Missing the change of purpose leads to initial application

Even after Tim receives the information from the immigration authorities that his study success is not sufficient to extend his residence permit “student”, he does not care any further and simply sends his partnership certificate to the authorities without any further comment.

Since Tim has failed to change his current application for extension into an application for a change of purpose, the authorities issue a negative decision on his application for extension of his “student” residence permit. After Tim receives this decision, he is very surprised and writes an e-mail to the authorities asking them to grant him a residence title as a “family member” due to his registered partnership with an Austrian citizen.

Unfortunately, this application comes too late, because an application for a change of purpose is only permissible until the decision on an application for renewal is issued. Tim’s application for a residence title is therefore to be regarded as an initial application.

Disadvantages of the initial application

Once the decision rejecting the application for renewal becomes final, Tim is in Austria illegally and the residence title he applied for as a “family member” cannot be granted to him, even if all the necessary requirements are met. On the one hand, he has to leave for USA and wait there for the residence title to be granted, and on the other hand, his current stay in Austria is thereby interrupted and the 5-year period for obtaining a permanent right of residence in Austria starts all over again.

Employment of foreigners: Facilitation for Red-White-Red Card and for Displaced Persons from Ukraine

Written by Dr. Alexander Raidl on . Posted in Blog.

Empolyment of foreigners: Today, a couple of amendments to the Act on the Employment of Foreign Nationals came into force in Austria, which make life easier for displaced persons from Ukraine as well as for third-country nationals applying for a Red-White-Red Card.

No employment permit for displaced persons from Ukraine

Persons who were displaced from Ukraine after 24 February 2022 due to the armed conflict in Ukraine are allowed to work in Austria. Until now, however, it was necessary for the employer to apply for an employment permit at the Public Employment Service Austria (AMS) before taking up the employment, which meant an increased workload and delays for the employer. This requirement has now been dropped.

From now on, persons holding an ID card for displaced persons can start employment in Austria without the employer having to obtain an employment permit in advance. However, the general labour and social law requirements that apply to all workers in Austria, such as a ban on underpayment or the obligation to register with the social security system, naturally also remain in place for displaced persons from Ukraine.

Employment of foreigners: Changes to the admission criteria for the Red-White-Red Card

Further changes in the Act on the Employment of Foreign Nationals concern the point schemes that are used to assess the conditions for issuing Red-White-Red Cards. From now on, language skills in French, Spanish, Bosnian, Croatian or Serbian (BKS) will also be counted as 5 points when assessing the requirements for issuing a Red-White-Red Card as a particularly highly qualified worker, skilled worker in a shortage occupation, other key worker or as a start-up founder, provided that these can be proven to be at least at B1 level of the European Framework of Reference for Languages.

Employment of foreigners: Changes for seasonal workers

In addition, the issuing of a Red-White-Red card for regular employees (seasonal workers) will be made easier. From now on, they only have to prove German language skills at A1 level of the European Framework of Reference for Languages and no longer, as before, at A2 level in order to be admitted to employment as a regular employee and thus be able to obtain a Red-White-Red card.

Emloyment of Ukrainians in Austria gets easier

Written by Dr. Alexander Raidl on . Posted in Blog.

While persons from Ukraine, who as displaced persons have a temporary right of residence in Austria, previously had to apply for an employment permit at the AMS before starting employment, this requirement will now be dropped. A legislative resolution is to be passed in the Austrian Parliament at the end of March 2023.

This means that in future displaced persons from Ukraine will be allowed to be employed in Austria without further requirements, just like other employees.

But beware, if you are a refugee from Ukraine and are still receiving basic benefits from one of the federal provinces, you should be aware that taking up employment that exceeds the additional earnings limits will count towards your basic benefits.

Bauch von Schwangerer

Red-White-Red Card and pregnancy

Written by Dr. Alexander Raidl on . Posted in Blog.

What effects do pregnancy and maternity leave have on a Red-White-Red Card and is an extension of the right of residence possible?

Mariana is originally from Colombia. She studied pharmacy in Bogota and worked as a scientist at the National University of Colombia after her studies. Due to an advertisement in a professional magazine, Mariana learns about a vacancy at a pharmaceutical company in Austria that would fit her profile perfectly. Since Mariana has no ties in Colombia and she has always wanted to live in Europe for a while, she applies for the job, which she actually gets.

Since Mariana is very well educated and speaks English fluently, she receives a Red-White-Red card in Austria as a particularly highly qualified worker and can start in her new job just a few weeks after applying.

At her new workplace, Mariana meets Peter, with whom she falls in love at first sight, and begins a love affair with him. A few weeks later, Mariana is pregnant. When she tells Peter, he doesn’t want to know about it and breaks off contact with Mariana. Mariana decides to raise her child alone, but is determined to stay in Austria and also keep her new job, which she enjoys very much.

Loss of residence permit due to pregnancy?

A Red-White-Red Card is restricted to employment with a specific employer for the first two years after it is issued. So, if Mariana loses her job, she would also lose the requirements for the issuance of the Red-White-Red – Card (see this article).

However, as soon as Mariana informs her employer of her pregnancy, her employment cannot be terminated until 4 months after giving birth or if taking maternity leave until 4 weeks after the end of maternity leave. So, for the time being, Mariana does not have to fear that she will lose her residence permit as her employer cannot terminate her employment.

What is the situation during maternity leave or parental leave?

Expectant mothers are generally not allowed to be employed during the last 8 weeks before the birth and 8 weeks after the delivery. These periods are considered to be full periods of employment and do not terminate the employment relationship.

The employment relationship is not interrupted by maternity leave but the employee’s duty to work and the employer’s duty to pay are suspended. This means that the conditions for obtaining a Red-White-Red Card do not cease to apply during maternity leave (as long as there is no minimum payment required for the obtaining of a Red-White-Red Card).

Application for Red-White-Red Card Plus

If Mariana has had a Red-White-Red Card for two years, she can apply for a Red-White-Red Card Plus. To do so, she must prove that she was employed under the conditions for the Red-White-Red Card for at least 21 months within the last 24 months before applying. Periods of employment prohibition during maternity and maternity leave are explicitly included.

It should be noted, however, that the general requirements for the issuance of residence titles must also be fulfilled when applying for the Red-White-Red Card Plus. One of these requirements is proof of a sufficiently secure livelihood. Even though entitlements to family allowance and childcare allowance are in principle to be considered as regular income, Mariana must reach the threshold values of the equalisation supplement reference rate. If the regular income is not sufficient for this, Mariana would also have to prove her sufficiently secure livelihood through existing savings.