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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.
Einwanderungsrecht und Asyl

Difference between asylum and immigration law

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

Julia is a political activist and has to flee her home country with her two children. She is afraid for her life. She decides to come to Austria. Here she applies for asylum for herself and her children. Julia’s cousin Peter lives in the same country, but he is not a political activist. However, he is so dissatisfied with the political situation and the general living conditions that he wants to emigrate and come to Austria as well. For him, however, only the general possibilities for immigration under immigration law come into question.

What is the difference between Julia’s and her cousin Peter’s stay in Austria and what requirements do they both have to fulfil?

Applying for asylum

Julia is persecuted in her home country and has well-founded fear for her life. She is therefore eligible for asylum. Asylum is fundamentally different from immigration law. In Austria, asylum can be granted to persons who are persecuted or fear persecution because of race, religion, nationality, membership of a certain social group or their political convictions. For this purpose, the person seeking protection must apply for asylum in Austria and then go through the asylum procedure.

Firstly, the person seeking protection must file an asylum application in Austria. This can be done at any police station or with any police officer. There is then an initial interview of the person seeking protection at the police station. All relevant data are also recorded there. Afterwards, it is checked whether Austria is responsible for processing the asylum application or not.

Austria is responsible for processing an asylum application if the person concerned has not already applied for asylum in another Dublin state (European Union, Norway, Iceland, Liechtenstein and Switzerland) or has already received a residence title there (Dublin cases). If Austria is responsible, the person is admitted to the basic care of a federal province. There, a residence restriction applies. The applicants must then reside in the federal province where they receive basic care.

After 6 months at the latest, the competent authority must issue a decision on the asylum application. If the decision is positive, the applicant is granted refugee status (entitled to asylum). Persons entitled to asylum are allowed to work in Austria without restrictions and they also have the possibility to get a convention passport.

Right of residence for persons granted asylum

In the beginning, persons entitled to asylum only have a temporary right of residence for a period of three years with full access to the Austrian labour market. If conditions in the refugee’s country of origin improve within these three years or if the person entitled to asylum commits a criminal offence, a revocation procedure is initiated. This means that the withdrawal of the status will be examined and, under certain circumstances, also withdrawn. Otherwise, the right of residence, which had been limited until then, becomes an unlimited right of residence.

If the conditions for granting the right of asylum are not met, however, the refugee can also be recognised as a beneficiary of subsidiary protection. This protection is initially granted for one year and also offers full access to the labour market. If this is not possible either, the only option is regular immigration under immigration law.

Julia applies for asylum in Austria for herself and her children, which is finally granted after a long and nerve-racking procedure.

Immigration to Austria for other reasons

Peter, on the other hand, has no chance of being granted asylum in Austria. He is neither persecuted in his home country nor does he have to fear persecution. Dissatisfaction with the general political circumstances in a country is not a reason for asylum. Peter’s only option is therefore to become a regular immigrant to Austria. He can then try to get a residence permit (e.g. Red-White-Red card) in accordance with immigration law. The higher his education and language skills are, the easier it will be for him to succeed.

Is it possible to switch between an asylum application and an application under the Settlement Act?

The Settlement and Residence Act, which regulates immigration to Austria, does not apply to asylum seekers or persons granted asylum. This means that, in general, it is not possible to obtain a residence title under the Settlement and Residence Act during an ongoing asylum procedure. If the asylum procedure ends negatively and the applicant is not granted asylum, he or she must leave Austria. Exceptions exist only if a return decision would violate the right to private and family life. The rule of thumb in this context is that a return decision may not be issued if the person concerned has been staying in Austria for more than 5 years and is already well integrated (e.g. through proof of language skills).

Peter must therefore try to obtain a residence title in Austria in a regular way, by applying for a residence title according to the Settlement and Residence Act.

Job-Seeker Visa for Austria

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

Who needs a Job-Seeker Visa?

Oliver is an American citizen and one of the best chefs on the West Coast of the United States. Although he does not have a college degree, he has learned his trade in the most distinguished restaurants in New York City. Currently, he is the head chef at a newly opened French restaurant on the Upper East Side.

One of the service staff at this restaurant is Lisa, a tourism student from Tyrol, who is completing her four-month mandatory internship there as part of her degree.

Oliver and Lisa get along very well, meet each other even in their free time, and fall in love. When Lisa has to return to Austria at the end of her internship to continue her studies here, it is clear to Oliver that he will break camp in New York and follow her.

For Oliver, the question now is how he can come to Austria, find a job and an apartment here, and work legally. While researching on the Internet, he comes across the possibility of applying for a job-seeker visa and thinks that this would probably be the right thing for him. So he gathers his documents, goes to the Austrian Consulate General in New York to apply for such a work search visa, and thinks that it should be done in a few days. But it takes longer than expected. After a few weeks of waiting and several urgencies, Oliver finally receives the answer that his application has been rejected. What had happened?

Requirements for a job seeker visa

A job-seeker visa (category D visa) allows third-country nationals to stay in Austria for up to 6 months in order to find employment here. The prerequisite for this is that the applicant fulfils the general requirements for the issuance of a Category D visa. For this purpose, a valid travel document must be presented and comprehensive health insurance coverage, as well as sufficient means of subsistence for the duration of the stay in Austria, must be proven. In addition, the person in question must also not be on notice for refusal of entry, the issuance of the visa must not pose a threat to public safety and order, and the applicant must not have committed any criminal acts that could create grounds for refusal of entry.

In addition, the applicant must also meet the admission criteria for very highly qualified workers. Here, the Austrian Labour Market Service (AMS) assesses whether, based on education, work experience, age, and language skills, 70 out of a possible 100 points are met according to a certain point scheme. In general, this is only possible for persons who have a university degree, have worked in a management position, have German or English language skills, and are not older than 45 years.

After being granted a visa to seek work, the person in question is then allowed to stay in Austria for a period of up to 6 months in order to look for a job here. If a job is then found, however, this visa does not yet entitle the person to take up employment. For this purpose, a separate residence title must be applied for.

What alternatives are there to the job-seeker visa?

Citizens of many countries have the possibility to stay in Austria without a visa for a period of up to 3 months. This time can also be used to find a job in Austria. As long as the person concerned is staying in Austria legally, i.e. during his/her visa-free stay, the application for a residence title can be submitted directly to the immigration authorities in Austria. However, such a domestic application does not entitle the applicant to stay in Austria beyond the period of validity of his/her visa-free stay. Therefore, if the application has not been processed in time before the expiry of the 3 months, the person concerned must leave the country and await the decision of the authority abroad.

What does this mean for Oliver?

Since Oliver does not meet the requirements as a particularly highly qualified worker and a job-seeking visa is therefore out of the question for him, he simply decides to travel to Austria on the off chance to look for a job here. From the very first day of his stay, he applies to restaurants for a job as a chef and actually finds a position in a Tyrolean tourist resort after just one week.

His new employer already has experience in employing foreign workers, so he also applies for a Red-White-Red Card for skilled workers in shortage occupations for Oliver. Fortunately, Oliver’s application is processed relatively quickly and the necessary verification by the Austrian Labour Market Service is also carried out very quickly so that Oliver is issued a Red-White-Red Card as a skilled worker in a shortage occupation during his visa-free stay in Austria.

Oliver is happy to be with his Lisa again and he enjoys both, his new job and the beautiful Tyrolean mountains in his free time.

Residence permit for Intra Corporate Transferees – ICT

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

How can Intra Corporate Transferees – ICT be legally employed in Austria?

Jason is a US citizen and has been working as a trainee in a large pharmaceutical company in the USA for 8 months. As part of his traineeship, Jason is required to work at a European subsidiary for at least 6 months in order to get to know the international orientation of his employer.

Jason is offered several traineeship positions in Europe, but he finally chooses Vienna because part of his family originally comes from Austria. What requirements does Jason now have to fulfill in order to start working as a trainee in Austria?

For whom is a residence permit for intra-corporate transferees possible?

Workers from third countries who work for an internationally active employer and are temporarily employed in one or more branches in an EU member state can obtain such a residence permit for a temporary stay without the intention of settlement. The prerequisite for this is that the worker in question is employed as a manager, specialist, or trainee. A specialist or manager must already have been employed in the company for 9 months (a trainee for 6 months) before the residence permit can be applied for.

What requirements must be met for a residence permit to be granted to intra-corporate transferees?

First of all, the applicant must be able to present an employment contract with the foreign employer and a secondment letter (working conditions for the duration of the transfer as well as a return guarantee for the foreigner to an establishment based outside the EU). This must also prove that the applicant can return to a branch of the company after the end of his/her secondment, which must be located in a third country (i.e. outside the EU).

Moreover, the employer must comply with the minimum standards prevailing in Austria with regard to pay, leave, and maximum working hours, and the employee must also be duly registered with social security. In addition, the establishment in Austria must not be affected by a strike, any existing requirements for exercising a regulated profession must be met and the employer must not have violated the provisions of the Employment of Foreign Nationals Act more than once in the last twelve months. Finally, the domestic branch must not have been established solely for the purpose of facilitating the entry of transferred workers, and the branch must be engaged in genuine business activity and must not be insolvent.

In addition, the general requirements for the granting of residence titles must be fulfilled (secure livelihood, health insurance, no threat to public security), whereby proof of accommodation customary in the locality does not have to be provided.

Where and how must the application for a residence permit for intra-corporate transferees be filed?

The application must be submitted by the employee concerned in person to the Austrian representation authority abroad (embassy, consulate).  However, if the employee in question can enter Austria without a visa, the application can also be submitted in Austria at an immigration office.

Together with the application, an employer’s declaration must be submitted in which the employer provides more detailed information on the applicant’s business and planned employment.

After examining all application documents, the competent immigration authority has to forward the application to the Public Employment Service Austria (AMS), which prepares an expert opinion on the fulfillment of the labour market-relevant prerequisites. If all prerequisites are met, this expert opinion is forwarded to the immigration office, which then issues the residence permit.

Summary

For Jason, this means that he has to apply for a residence permit as Intra Corporate Transferees – ICT at the Austrian embassy in the USA before he enters the country and starts his traineeship in Austria. Documents such as the employer’s declaration or a secondment letter, which have to be submitted together with the application, will be provided to Jason by the Austrian branch of the company.

The authorities must make a decision on Jason’s application within 8 weeks of the application being submitted. Extensions of the residence permit are possible, but the total duration of stay may not exceed 3 years for employees transferred within the company and 1 year for trainees.

Finally, after overcoming all the bureaucratic hurdles, Jason can start his traineeship in Austria. As he really likes it in Vienna, he even extends it by another 6 months, for which he is quickly and easily granted an extension of his residence permit by the authorities.

documents for citizenship

Checklist documents for citizenship in Austria

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

What documents must be prepared when applying for Austrian citizenship?

I recently received the following enquiry from Ahmed from Vienna:

Hello, my name is Ahmed, I come from Egypt and have been living in Austria for seven years now. I completed a technical degree in Egypt and was able to obtain a Red-White-Red card for highly qualified workers, which I have been able to convert into an EU permanent residence title in the meantime.

I am very satisfied with my life in Austria, would like to stay here permanently and apply for Austrian citizenship. I assume that I meet all the requirements for being granted citizenship and am now wondering which documents have to be submitted to the competent authority when applying.

However, my first search on the internet only revealed that I will be informed about the required documents during an initial interview at the immigration office. However, I already have experience with the Austrian immigration authorities and know that the staff there are sometimes not as helpful as I would like them to be. I want to know in advance what bureaucratic hurdles I can expect when applying for Austrian citizenship.

Response:

Dear Ahmed, this checklist gives you an initial overview of which documents may be necessary when applying for Austrian citizenship. Please note, however, that in individual cases further documents may be required which are not listed here. This largely depends on the authority responsible for your application.

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Residence in Austria as an artist from a third country

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

The freedom of art is constitutionally protected in Austria and also applies to the work of artists who are third-country nationals. In order to make it possible for third-country nationals to reside and work in Austria, a separate residence title “Settlement Permit Artist” was created. The following example shows how and under which conditions such a residence title can be granted.

New type of art

Natalia is a painter and graduate of the prestigious National Academy of Fine Arts and Architecture in Kyiv, Ukraine. Natalia has developed a special style of art. She uses old portraits or photographs as models for her paintings and reinterprets them by using intense colours and softening the facial shapes. However, the people depicted in the portraits or photos always remain recognisable.

Natalia’s works are regularly shown in galleries and at exhibitions all over Ukraine and she is already able to make a good living from the proceeds of the sales of her paintings.

Natalia’s great commission

One day Natalia is contacted by a bank manager from Vienna who tells her that he has seen one of her paintings while visiting an exhibition in Kyiv, that he is enthusiastic about her style and that he may have a major order for her in Vienna. Interested and excited, Natalia then travels to Vienna where she is introduced to the new project.

A private bank located in the centre of Vienna has portraits of all the bank directors since 1832 hanging in its meeting rooms. There are 33 portraits in all. The bank manager explains to Natalia that the meeting rooms will be completely renovated in the next few years and all the portraits of the bank directors will also be displayed in the new meeting rooms in a contemporary style. He asks Natalia if she would be willing to take on the job of making the new portraits. At the same time, he informs her that the existing portraits have to remain in place in Vienna until the new premises are completed and that Natalia therefore cannot take them with her to Kyiv.

Natalia knows from experience that she can do about one portrait a week. This new commission would therefore keep her busy for at least a year, but probably longer. In addition, the fee she is offered is extremely generous and the bank is also prepared to cover the costs of renting a flat and a studio for Natalia in Vienna. Natalia does not think twice and agrees to start work as soon as possible.

Which residence title is now open to Natalia in Austria for this?

As with all other residence titles, artists must fulfil the general requirements for the granting of residence titles. These include a sufficiently secure livelihood, accommodation that is customary in the locality, health insurance that covers all risks and public order and security must not be endangered by the stay.

In addition, an artistic activity must be pursued, whereby a distinction is made as to whether this activity is dependent or self-employed.

For a dependent artistic activity, on the one hand, a declaration must be submitted by the employer before the settlement permit is issued and a notification must be obtained from the Labour Market Service (AMS) confirming that the requirements for a corresponding artistic activity are actually met.

In the case of self-employed artists, on the other hand, it is only necessary to prove to the immigration authorities that the planned activity consists predominantly of artistic creation and that the artist can earn his or her living from the artistic activity, whereby this must be substantiated by proof of corresponding certificates or contracts. The Labour Market Service is not involved in this process.

Natalia receives the settlement permit Artist

Although Natalia will do her work in Vienna independently, she will receive a written contract from the bank she is to work for, in which all the details of the project, which will in any case take more than six months, are precisely regulated and which she can present to the authorities. This will enable her to fulfil all the requirements for the issuance of a settlement permit-artist, which will also be issued to her by the immigration authorities without any problems. This settlement permit is initially valid for one year, but can be renewed thereafter, provided that the necessary legal requirements are still met.

Residence title for family members – What happens in the event of a divorce?

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

As a third-country spouse of an Austrian citizen, you usually receive a residence title as a family member without any problems, but what are the consequences of a divorce?

During a study visit to the USA, Julia, an Austrian, meets the American football player Aaron and falls in love with him. After only a few weeks, the two decide to marry and live together in Austria in the future.

As a US citizen, Aaron is a third-country national, but as the spouse of an Austrian woman who finds a well-paid job after returning from the USA and has also inherited a family home from her parents, he receives a residence title as a “family member” without any problems. This residence title is initially issued for one year, can be extended on application and entitles the holder to take up any gainful employment in Austria.

Problems of life in Austria

Just a few weeks after the wedding, things start to crumble between Julia and Aaron. Aaron is disappointed that he cannot continue his career as a football player in Austria and cannot find any other employment. Julia, on the other hand, is absorbed in her new job and often works late into the night. Just three months after the wedding, Aaron tells Julia that he is no longer interested in a life with her and wants a divorce. After an initial shock, Julia realises that this marriage was a big mistake and agrees to the divorce.

In the meantime, however, Aaron has already started taking a German course and has fallen in love with his German teacher Sarah, with whom he begins a relationship. For this reason, he wants to continue living in Austria after his divorce, although he has learned from his experience with Julia and wants to take his time with a possible second marriage. How and under what circumstances can Aaron maintain his right of residence in Austria even after his divorce from Julia?

Right of settlement of family members

Family members who have been granted a residence title “family member” acquire an independent right of settlement. However, if the status of a family member ceases due to divorce, this residence title can no longer be issued. However, if the former family member fulfils the general requirements for the issuance of a residence title and there are no obstacles to the issuance of a residence title, a “Red-White-Red Card Plus” is to be issued. The cessation of the status as a family member has to be notified to the authorities within one month.

General requirements and obstacles to issuance of a residence title

Residence permits may only be granted to a foreigner if this is not contrary to public interests and if relations with other states are not substantially affected if a legal entitlement to accommodation customary in the locality is given, if health insurance coverage covering all risks exists and if sufficient means of subsistence can be proven.

Obstacles to issuance are, for example, valid entry bans, overstaying the visa-free stay in Austria or legally binding punishments for unlawful entry into Austria.

Exceptions

Aaron has lived in his wife’s house until now, was covered by health insurance through her professional activity and does not receive any income himself. It is therefore currently not possible for him to fulfil the general requirements for the granting of a residence title in Austria. Under certain circumstances, however, a residence title can be granted to family members even if they do not fulfil the general requirements.

This is the case if the spouse dies, the spouse is to blame for the divorce or for reasons that are particularly worthy of special consideration. Such reasons worthy of special consideration exist in the case of victims of a forced marriage or if family members were victims of violence or if the residence title was withdrawn because the merging spouse was legally convicted of a committed criminal offence.

What can Aaron do now?

If Aaron were to apply for a Red-White-Red Card Plus immediately after his divorce, his application would have to be rejected because the general requirements for a residence title were not met and Aaron would lose his right of residence in Austria. One of the exemption provisions would not apply to him either.

He should therefore try to delay the divorce until he can stand on his own two feet, i.e. until he has found his own accommodation, taken out health insurance and got a job that guarantees him at least a certain basic income. Once he has achieved this, he can also be granted a “Red-White-Red Card Plus” after the divorce. 

The Integration Agreement in Austria

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

Persons who have legally settled in Austria should be integrated into Austrian society as quickly as possible. For this purpose, it is necessary both that integration support is offered and that the persons concerned actively participate in it. To this end, a system was created under the – misleading – term “Integration Agreement”, which is intended to ensure the acquisition of in-depth knowledge of the German language as well as of the democratic order and the basic principles that can be derived from it and prevail in Austria. However, this is not a measure in which persons immigrating to Austria can voluntarily participate, as the term “agreement” suggests, but rather an obligation that must be fulfilled in order to be granted or renew certain residence titles.

Following parents as an example

Oxana immigrated to Austria from Ukraine many years ago. In the meantime, she has already become an Austrian citizen and is also married to an Austrian. When Oxana and her husband, who are both employed, are expecting their first child, Oxana asks her mother from Ukraine to move in with her to Austria to help her look after the children. Oxana’s mother agrees and applies for a settlement permit “relative”, which gives her a temporary right of residence but no access to the labour market in Austria. Oxana’s mother has also completed a German course at the Goethe Institute in Kyiv before applying and can thus already prove basic knowledge of the German language at the A1 level of the European Framework of Reference.

Since she can also prove all other necessary requirements, Oxana’s mother is granted the applied-for settlement permit “relative”. Together with the issuance of the residence permit, however, she is informed that she is obliged to fulfil Module 1 of the Integration Agreement within 2 years. Should she fail to do so, her right of residence cannot be further extended after the expiry of these 2 years.

Module 1 of the Integration Agreement

There are a number of ways to fulfil Module 1 of the Integration Agreement. On the one hand, this can be done by passing certain examinations, namely by proving a successful integration examination at the Austrian Integration Fund (ÖIF) at language level A2 or by proving an integration examination at the A2 level of the “Verein Österreichisches Sprachdiplom Deutsch” (ÖSD). On the other hand, Module 1 of the Integration Agreement can also be fulfilled by providing evidence of a certain level of education. This is possible either by providing proof of a school-leaving qualification equivalent to the general university entrance qualification or by providing proof of graduation from a vocational secondary school (such as a Fachschule or Handelsschule). In addition, persons who have been granted a Red-White-Red Card are automatically deemed to have fulfilled Module 1 of the Integration Agreement. Finally, Module 1 of the Integration Agreement is also considered fulfilled if Module 2 has been successfully completed.

Module 2 of the Integration Agreement

In order to fulfil Module 2 of the Integration Agreement, language skills at the B1 level of the European Framework of Reference must be proven. Unlike Module 1, however, there is no obligation to fulfil Module 2 in order to renew an existing residence title. Fulfilment of Module 2 is, however, a necessary prerequisite for the granting of an “EU permanent residence title” or, subsequently, for the granting of Austrian citizenship.

Like Module 1, Module 2 can be fulfilled by taking appropriate integration examinations at B1 level at the ÖIF or the ÖSD. In addition, Module 2 is also deemed to be fulfilled if the person concerned is a minor and attends primary or secondary school in Austria (if attending secondary school, the subject “German” must have been positively completed in the last school year), or by providing proof of a degree in the subject “German” at a foreign secondary school (whereby the lessons must have been attended for at least 4 years), or by providing proof of an apprenticeship-leave exam in Austria, or by providing proof of completion of at least 32 ECTS within the framework of a postsecondary study programme in Austria that was held in German. 

Exception for health reasons

Oxana’s mother has been staying in Austria continuously for almost two years due to her settlement permit for “relatives”. However, she has not yet managed to fulfil Module 1 of the Integration Agreement. On the one hand, she is busy looking after her grandchildren and, on the other hand, suffers from great exam anxiety. Is it still possible for Oxana’s mother to have her residence permit extended after two years, even if she cannot prove that she has fulfilled Module 1 of the Integration Agreement?

Persons who cannot be expected to fulfil Module 1 of the Integration Agreement due to their mental or physical state of health are exempt from this. This must be confirmed by a medical certificate from a public health officer. Oxana’s mother, however, has doubts as to whether her fear of exams is actually recognised as such a serious psychological limitation that it is actually confirmed as an exceptional reason by a public health officer.

Extension of the obligation to fulfil

Oxana’s mother also has the option of applying for an extension of the obligation to fulfil Module 1 of the Integration Agreement for up to 12 months. When deciding on such an application for an extension, the authorities must take into account the concrete circumstances of the third-country national’s life. In this context, Oxana’s mother’s multiple burdens with childcare and exam anxiety may very well play an important role. Even if Oxana’s mother cannot avoid the obligation to fulfil Module 1 of the Integration Agreement, she can gain up to one year’s time to take the required examination by applying for an extension of the obligation to fulfil.

Geld

Necessary income for the granting of Austrian citizenship

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

How high does the income have to be for Austrian citizenship to be granted?

The granting of Austrian citizenship is linked to a number of prerequisites. In addition to a sufficiently long residence in Austria and some general legal requirements (such as exemption from punishment for serious offenses or an affirmative attitude towards the Republic of Austria), a sufficiently secure livelihood must be proven. How this is calculated and which income and expenses have to be taken into account is answered here.

Austrian citizenship may only be granted to persons who are able to cover their living expenses in Austria by means of an adequate income and without recourse to social welfare benefits and who have sufficiently secured this income.

For this purpose, the applicant must have fixed and regular own income from gainful employment or other income, legal maintenance claims or insurance benefits. The applicant must prove these claims for a total period of 36 months within the last 6 years prior to the application, whereby the last six months prior to the application are included in any case.

This means that in order to prove that he or she has sufficient means of livelihood, an applicant must pick out the best 30 months of the last 5.5 years prior to application and submit the relevant proof of income to the authority for this purpose. In addition, there should also be sufficiently high income in the last six months before the application, because these months are in any case included in the assessment by the authority.

How high must the regular income for Austrian citizenship be?

How high does the regular income have to be for the authorities to recognise it as a secure livelihood? The answer to this question can be found in the General Social Insurance Act (ASVG). There, the reference rates for the entitlement to a compensatory supplement to pensions from the pension insurance are regulated. The applicant’s income, without recourse to social assistance benefits, must at least correspond to the average of the reference rates of the last three years before the application in a period of (the best) 36 months in the last 6 years before the application. These reference rates change annually. In 2021, the reference rate for single persons is € 1,000.48, for married couples € 1,578.36 and for each child an additional € 154.37.

How can I prove that I have a secure livelihood?

For example, wage slips, wage confirmations, work contracts, preliminary contracts under labour law, confirmations of pension or other insurance benefits, proof of receipt of childcare allowance or proof of own assets in a sufficient amount can be submitted as proof of secure livelihood. However, maintenance claims are only taken into account if they are legally justified. Benefits from maintenance contracts or voluntary allowances and gifts of money (even if these are made regularly), on the other hand, cannot be used as proof of a secure livelihood.

How are regular expenses taken into account?

The applicant’s own fixed and regular income is reduced by regular expenses. These regular expenses include rent, loan payments, garnishments and maintenance payments to persons not living in the joint household. These regular expenses are to be deducted from the net income, leaving a so-called “free ward” (for 2021: € 304.45), which is not taken into account when calculating the regular expenses. Thus, only the regular expenses reduce the income that exceeds this “free ward”. If childcare allowance is received in the last six months prior to the application, subsistence is considered to be sufficiently secured in this period in any case.

A simplified example of the calculation of sufficient income for Austria citizenship

If a claimant (single) has regular monthly income of € 2,000.00 net and regular expenses of € 800.00, in a first step the “free ward” has to be deducted from the regular expenses.

Regular expenses (for rent, loan, etc)……..€ 800.00
Deduct free ward……………………………………..- € 304.45
Regular expenses to be deducted………..€ 495.55

In a second step, the regular expenses calculated in this way are to be deducted from the regular net income.

Regular net income…………………………………€ 2,000.00
Regular expenses to be deducted………- € 495,55
Regular own income…………………………….€ 1,504.45

As the regular monthly income of the applicant is higher than € 1,000.48, his livelihood would be sufficiently secured this month. However, if the applicant would also have to provide for a wife with this income and with the same expenses, the threshold of € 1,578.36 would not be reached this month.

Use the online calculation tool to check whether your livelihood is sufficiently secured!

Are there also exceptions?

Persons who, due to a disability or a permanent, serious illness, are impaired in earning their regular livelihood are exempt from the obligation to prove this according to the described requirements. These restrictions must in any case be proven by a medical certificate.

Conclusion

The exact calculation of a secure livelihood as a prerequisite for the granting of Austrian citizenship can therefore be very complicated, especially if the income comes from different sources or is offset by high regular expenses. In order to avoid unpleasant surprises, it is, therefore, advisable to check carefully before applying for the granting of Austrian citizenship whether all legally required prerequisites, such as the sufficiently secure livelihood, are actually fulfilled to the required extent.

Award of Austrian citizenship through exceptional performance

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

The Austrian Citizenship Act provides for the possibility of granting Austrian citizenship to aliens without the usual prerequisites. In this case, it is not necessary to give proof of a certain period of residence or a secure livelihood, and there is also no need to prove knowledge of German or pass a citizenship examination or give up the previous citizenship. In such a case, however, it is necessary that the applicant has already rendered or can still be expected to render exceptional performance in the interest of the Republic. This is assessed by a confirmation of the Austrian Federal Government.

What counts as exceptional performance in the interest of the Republic?

The law does not define what counts as exceptional performance in the interest of the Republic. On the basis of the citizenships already awarded for exceptional performance, the Federal Ministry of the Interior has developed a catalog of certain criteria which are to be used as a benchmark in the decision of the Federal Government and provide orientation for an objective assessment of the individual case.

First of all, a rough distinction is made between four sub-areas in which exceptional performance can be made in the interest of the Republic. These are scientific achievements, economic achievements, sporting and artistic achievements, whereby extraordinary achievements in other areas are also possible, provided they are of comparable importance.

Examples of exceptional performance

Exceptional scientific achievements include, for example, activities in a scientific field that has not yet been explored, a high reputation in the international scientific community, publication activities, teaching at Austrian universities, etc.

Exceptional economic performance can entitle a person to be granted Austrian citizenship if he or she is active in a company as the owner or in a managerial function with significant influence, if this company has a high economic performance, if jobs are created or secured in Austria, if significant projects with high investments are carried out in Austria and/or if the company is also known abroad and if Austria’s foreign relations in the economic sector are thereby also promoted.

In the case of extraordinary sporting achievements, on the other hand, the assessment first aims to determine whether other athletes at a similar level of performance are already available in Austria, be it in the active or junior area. Only if this is not the case there can be an interest of the Republic in granting citizenship for sporting achievements. In addition, the exceptional sporting achievements must have been made in Austria over a period of at least one year and the active sporting career must still continue over a longer period. Another criterion is whether it is formally possible to field the athlete in the Austrian national team immediately after the granting of citizenship and whether very good placements have already been achieved in international competitions, either as an individual or in a team.

In the case of extraordinary artistic achievements, the criteria are much more blurred. For example, the individual artistic achievement must represent a significant contribution to artistic events in Austria, significant achievements are made in the field of education at Austrian universities, Austria’s artistic reputation is strengthened on an international level, the artistic achievement attracts the public and own techniques are developed or old techniques are reactivated in use or the development of a new technique.

What is the procedure for obtaining confirmation from the Federal Government?

First of all, the application, like every application for the award of Austrian citizenship, has to be submitted to the provincial government responsible for the applicant’s place of residence. The provincial government first checks whether there are any obstacles to the granting of citizenship (such as final convictions, impairment of international relations by the granting of citizenship, no danger to public order, etc.). Afterwards, the authority has to submit the administrative act with the application to the Federal Ministry of the Interior.

The Minister of the Interior must then himself assess whether the services rendered or still to be rendered by the applicant are in the special interest of the Republic. If the applicant resides abroad, the Minister of Foreign Affairs must also submit a corresponding assessment. Within the framework of these assessments, the ministers must give detailed reasons why the granting of citizenship is in the special interest of the Republic or why this is not the case, and whether the granting is supported or not.

Afterwards, the Minister of the Interior has to prepare a statement ready for decision and to draw up a recommendation for the decision-making of the Federal Government. The Federal Government decides at least once every calendar half-year whether to grant or not to grant confirmation of the award of Austrian citizenship because of extraordinary performance in the interest of the Republic. The decision on granting or rejecting the application is then issued by the respective provincial government to which the application was submitted.