Checklist Citizenship
A checklist for the award of Austrian citizenship
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.
Checklist Red-White-Red Card
The Red-White-Red Card celebrated its 10th birthday in July 2021. It is, therefore, time to review whether the goal pursued with it, namely to bring qualified workers to Austria on the basis of objective criteria, has actually been achieved or whether it has merely created an administrative hurdle race for immigrants willing to integrate.
Why Red-White-Red Card?
With the introduction of the Red-White-Red Card in 2011, the Austrian legislator wanted to create a new and more flexible way to bring skilled workers to Austria than it had been possible with the rigid system of key workers until then. A major innovation at that time was that highly qualified workers were also allowed to enter Austria with a job-seeker visa in order to look for a job here.
The issuance of residence permits was to be based on objective criteria such as the impact of the Austrian labour market, the economic performance of the national economy, and the expected integration ability of the immigrants.
Red-White-Red Card for whom?
The aim of the new regulations was to provide access to the Austrian labour market for highly qualified key workers, skilled workers in shortage occupations, and graduates of Austrian universities who originate from third countries, in order to cover areas in which a labour shortage cannot be met by the labour potential available domestically.
How many red-white-red Cards?
Since 2020 was an exceptional year in every respect, the establishment and residence statistics of the Ministry of the Interior for 2019 must be used to answer this question in the most objective way possible.
In 2019, there were almost half a million valid residence titles in Austria, over 60% of which were “EU permanent residence titles”, i.e. the residence title that forms the final stage on the path to integration (after that, there is only the possibility to apply for Austrian citizenship). Another 20% of the residence titles were the Red-White-Red Card Plus and only slightly more than 1% of all residence titles in 2019 were a “simple” Red-White-Red Card.
Of these Red-White-Red Cards, the largest share, more than half, was issued to other key workers, while the smallest share, not even 2%, was issued to self-employed key workers and start-up founders.
Is the Red-White-Red Card a success?
If you look at the bare figures, the answer to this question must clearly be no. Even though the Red-White-Red card aims at the immigration of as many highly skilled workers as possible to Austria, almost 10 years after its introduction it remains only an option for the elite of immigrants and thus for a few who are able to meet the high requirements that applying for a Red-White-Red Card imposes on them. Most of the initial applications for a residence title in 2019 were for a “family member” residence title, i.e., a residence title in which the applicant’s right of residence is granted based on the right of residence of a close relative and not on the applicant’s individual professional qualifications.
Nonetheless, the Red-White-Red card offers a sensibly coordinated model that provides those willing to immigrate and integrate with the opportunity to secure a right of residence in Austria through professional qualifications.
An overview of the possibilities to obtain a Red-White-Red Card can be found here:
New Home-Office Regualtions
At the end of January 2021, the Austrian government, together with the social partners, i.e. the interest groups of employers and employees in Austria, agreed on new legal regulations for home office. Although there is no concrete draft for the law yet, the new regulations are to come into force as soon as possible.
Tax advantage
First, there will be tax advantages for home office workers. Specifically, employees will in the future be able to deduct up to € 300 annually as income-related expenses for the purchase of work materials for their home offices (such as a desk or an office chair) as part of their employee tax assessment. At the same time, payments by employers as a subsidy for the costs of employees in the home office will be tax-free up to € 300 per year. Digital work equipment for the home office must be provided by the employer or a cost-reimbursement must be made for it. This will not be considered a taxable benefit for the employee.
Home office remains a matter of agreement
In addition, there will also be clear regulations on questions of labour law, some of which have been controversial up to now. For example, home office, whether for all or only part of the working time, must still be agreed individually between the employer and the employee. Employees cannot take up home office of their own accord, but at the same time, employers cannot make home office compulsory. A home office agreement can be revoked by either party for a good cause with one month’s notice.
Works agreement and liability relief
In addition, the possibility is to be created that in companies with a works council, home office can be agreed within the framework of a works agreement.
Finally, the employee protection provisions, as well as the regulations on working hours and employee liability, also apply to the full extent in the home office. In the event of damage to work equipment in the home office, the provisions of the Employee Liability Act are also extended to relatives of the employee or his pets, which offers improved protection for employees in the event of a claim for damages.
Employee protection
The parts of the Employee Protection Act and the Labour Inspection Act applicable to home offices also continue to apply unchanged. However, it is clarified that the labour inspectorate is not allowed access to private homes. Employers should therefore instruct their employees on how to set up their home office workplaces in compliance with the law before they start their home office. For this purpose, an information brochure will be prepared by the social partners and the Federation of Austrian Industries together with the Ministry of Labour.
Accident insurance
Last but not least, a much-discussed controversial issue will finally be settled. The regulation on accident insurance in the home office, which was already introduced in connection with the first lockdown, is now to be incorporated into permanent law. Accordingly, employees are also insured against accidents in the home office, just as they are at their usual place of work. This also applies to accidents on the way between the home office and the workplace, from the home office to a doctor’s appointment or when taking children to kindergarten.
The BREXIT trade agreement and residence in Austria
1. On 1 January 2021, the United Kingdom will definitively leave the EU internal market, the customs union and all EU policies. The free movement of persons, goods, services and capital between the EU and the United Kingdom will also end.
2. Fortunately, after long and arduous negotiations, a trade and cooperation agreement between the UK and the EU was concluded at the last minute on 24 December 2020. It stipulates that the withdrawal agreement between the EU and the UK, which entered into force on 1 February 2020 and sets out the modalities for the orderly withdrawal of the UK from the EU, will remain in force.
3. The withdrawal agreement between the EU and the United Kingdom regulates, among other things, the right of residence of British nationals residing in Austria and their family members.
Residence permit pursuant to Art 50 Treaty on European Union (TEU)
4. A British citizen or third-country national family member of a British citizen who wishes to live in Austria must apply for a residence title “Art 50 TEU” as of 1 January 2021. In order to obtain this residence title, British citizens – just like EU citizens – must be gainfully employed in Austria or have sufficient assets to be able to afford to live in Austria without drawing social benefits (i.e. prove at least an income above the social assistance threshold). In addition, comprehensive health insurance coverage must be guaranteed.
5. The residence title “Art 50 TEU” is initially valid for a period of 5 years and if the applicant has already acquired a permanent right of residence in Austria, for 10 years. This residence title grants unrestricted access to the Austrian labour market. Persons with this residence title may therefore continue to live, work and study in Austria.
6. The application can be submitted between 1.1.2021 and 31.12.2021 at the district administrative authority responsible for the applicant’s main place of residence, in Vienna at the Magistratsabteilung 35 (MA 35).
Right of residence under EU law in Austria for EU citizens and their relatives
What do you have to pay attention to and what bureaucratic requirements must be met if you make use of the right of residence under EU law and settle in Austria as a citizen of another EU member state and what applies to your family members?
Requirements for the right of residence in Austria under EU law
Even though the fundamental freedom of movement of persons generally allows EU citizens to live or work in another member state without restrictions, there are still some important points to consider when immigrating to Austria. The regulations described below apply not only to EU citizens, but also to nationals of the European Economic Area (Iceland, Liechtenstein and Norway) and Switzerland.
EU citizens are generally authorised to stay in another member state without a visa for a period of up to three months. If they wish to settle in Austria for a longer period, they may only do so if they are working in Austria (as employees or self-employed persons) or if they have sufficient means of subsistence and comprehensive health insurance cover for themselves and their family members (private individuals) or if the main purpose of their stay is for educational purposes and the person concerned has sufficient means of subsistence and comprehensive health insurance cover for themselves and their family members. In both cases, no social welfare benefits may be claimed.
Sufficient means of subsistence are deemed to exist if they are above the social welfare threshold. In Austria, this limit is determined by the means-tested minimum income (depending on the federal state, in Vienna in 2024 this is an income below the limit of € 1,155.84 for single persons or single parents, € 809.09 [per person] for couples and € 312.08 additionally for underage children [per child]).
Right of residence for relatives of EU citizens
Relatives of EU citizens who make use of their right of residence in Austria and who are EU citizens themselves are also entitled to reside in Austria. Relatives include spouses, registered partners or cohabiting partners (whereby the existence of a long-term relationship must be proven). They also include certain other relatives, such as relatives in the descending line (children, including stepchildren, adopted children and grandchildren up to their 21st birthday, provided that maintenance is actually provided), relatives in the ascending line (parents or grandparents, provided that maintenance is actually provided) or other relatives (who have already received maintenance in the country of origin or have lived in a household or for whom personal care is urgently required due to health problems).
Relatives of EU citizens (who make use of their right of residence in Austria) who are not EU citizens themselves also have a right of residence in Austria under EU law. This is also associated with unrestricted access to the Austrian labour market and an employment permit is not required. The status of family member is assessed according to the same criteria as for family members who are themselves EU citizens.
Registration certificate and residence card
EU citizens or their relatives who wish to settle in Austria on the basis of the requirements described above must notify the competent authority (in Vienna this is Municipal Department 35) within four months. The authority must then issue a registration certificate documenting the right of residence in Austria under EU law. When applying, in addition to a valid passport or identity card, proof of the right of residence under EU law must be submitted (e.g. employment contract, proof of sufficient financial means, confirmation of school attendance, etc.).
Third-country nationals of EU citizens are issued a residence card to document their right of residence in Austria. The application for this must also be submitted to the competent authority within four months of entry. This documents free access to the labour market. Upon application, the Public Employment Service Austria (AMS) can also issue a separate confirmation of this.
Red White Red Card – What to do when you lose your Job?
What are the consequences if a holder of a Red White Red Card loses his or her job within the first two years in Austria? Is the right of residence in Austria withdrawn or is there another way to obtain a residence permit in order to legally remain in the country?
Red White Red Card for specific employer
The RWR Card entitles the holder to settle in Austria and to work for a specific employer. If one loses his or her job with the employer specifically named in the application, the Red White Red Card must be withdrawn because the conditions under which it was issued are no longer fulfilled.
However, the law provides for a separate regulation in the event of a change of employer (which will be in particular the case in the event of termination of employment through the employee). If, during the period of validity of the RWR Card (24 months) the card holder changes his or her employer, the entire procedure for the issue of a Red White Red Card must be followed from the beginning.
This means that a change of job is also possible, provided that an application for a new residence title issued to the new employer is submitted before the new job starts.
Termination by employer
However, if the employment relationship is terminated by the employer (employer’s notice) and a new employer is not immediately found, i.e. in the event of unemployment, the conditions for the issue of a Red White Red Card are no longer applicable. So the card must then be withdrawn from the person concerned.
Change of purpose
In order to avoid losing the right to remain in Austria as a third-country national, an application for a change of purpose of the residence permit can be submitted to the immigration authorities. However, a new residence permit will only be granted if the applicant fulfils the necessary requirements and if a quota place (if necessary) is available. Therefore, if the requirements for the granting of a RWR Card are no longer met, one can try to apply for another residence title (e.g. “Niederlassungsbewilligung – Sonderfälle unselbstständiger Erwerbstätigkeit“ or “Niederlassungsbewilligung – ausgenommen Erwerbstätigkeit”). However, the necessary prerequisites for this residence titles must be fulfilled in any case.
Calculation of a secure livelihood when granting Austrian citizenship due to sustainable personal integration
Persons who are very well integrated in Austria can obtain Austrian citizenship after a stay of only 6 years. Moreover, they must prove that their livelihood is sufficiently secured. This article deals with the question of how the responsible authorities evaluate this requirement in practice and how the secured livelihood is calculated in concrete terms.
1) Austrian citizenship can generally be granted after a legal and uninterrupted stay of 10 years in Austria, whereby the applicant must have been resident in Austria for 5 years (e.g. on the basis of a Red-White-Red card or a Permanent Residence Permit EU).
2) Under certain circumstances, however, a legal and uninterrupted stay of 6 years in Austria can be enough for an applicant to be granted Austrian citizenship. Apart from spouses of Austrian citizens, other persons may also be eligible for this shortened period of residence if they can prove knowledge of the German language at B2 level or if they have at least language skills at B1 level and can prove their sustainable personal integration in Austria.
3) Sustainable personal integration can be proven by voluntary engagement in a non-profit organization for at least three years or by exercising a profession in the educational, social or health sector or by a function in an interest group, also for at least three years in each case.
4) But even if the proof of personal integration is successful, this does not mean that Austrian citizenship will automatically be granted. The general requirements must also be fulfilled. These include no severe criminal convictions, an affirmative attitude towards the Republic of Austria and, last but not least, proof of a sufficiently secure livelihood.
5) Austrian citizenship may therefore only be granted to persons who can cover their living costs in Austria with a corresponding income and without recourse to social welfare benefits.
6) The Citizenship Act (Staatsbürgerschaftsgesetz) contains a precise regulation on how the authority must calculate whether the applicant’s livelihood is sufficiently secured. For this purpose, the applicant must have a fixed and regular income of his or her own from employment, self-employment, legal maintenance claims or insurance benefits. The applicant must provide evidence of these entitlements for a total period of 36 months within the last 6 years before the application is submitted, whereby the last 6 months before the application are always included.
7) This means that an applicant should select the best 30 months of the last 5.5 years before the application is made and submit the relevant income statements to the authorities to prove that he/she has enough means of livelihood. In addition, sufficiently high income should also be available in the last six months before the application is submitted, as this will be included in the assessment by the authority in any case.
8) But how high must the regular income be for the authority in order to be recognized it as a secure livelihood? The answer to this question can be found in the General Social Security Act (ASVG). There, the reference rates for the entitlement to a compensatory allowance for pensions from the pension insurance are regulated. The applicant’s income must be at least equal to the average of the reference rates of the last three years before the application was made, without recourse to social welfare benefits during the period mentioned above (36 months in six years before the application was made). These reference rates change annually. In 2024, the reference rate for singles was € 1,217.96, for married couples € 1,921.46 and for each child an additional € 187.93.
9) As proof of a secure livelihood, wage slips, wage confirmations, service contracts, preliminary contracts, confirmations of pension or other insurance benefits, proof of receipt of childcare allowance or proof of own assets in sufficient amount can be presented. Maintenance claims will only be considered if they are legally justified. However, benefits from maintenance contracts or voluntary benefits and gifts of money (even if they are regular) cannot be used as proof of a secure livelihood.
10) However, 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 who do not live in the common household. These regular expenses are to be deducted from the net income, leaving a so-called “free station” (for 2024: € 359.72), which is not considered when calculating the regular expenses. Thus, only the regular expenses reduce the income that exceeds this “free station”. If childcare allowance is received in the last six months before the application is filed, the livelihood is considered sufficiently secured during this period in any case.
11) A simplified example of this:
If an applicant (single) has regular monthly income of € 2,000.00 and regular expenses of € 800.00, the “free station” is to be deducted from the regular expenses (€ 800.00 – € 359.72 = € 440.28). In the result therefore the income of the applicant amounts to € 1,217.96 and lies thereby over the reference rate of € 966.65 per month for single persons.
12) Persons who are impaired in earning their regular livelihood due to a disability or a permanent, serious illness are exempt from the obligation to provide the described requirements. These restrictions must be proven by a medical certificate.
13) The exact calculation of the guaranteed living expenses 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. Before applying for Austrian citizenship, it is therefore advisable to check carefully whether all legal requirements, such as a sufficiently secure livelihood, are met to the required extent.