Author: Alexander Raidl

Tafel mit Schrift

What does “German before immigration” mean?

For most residence titles, proof of basic knowledge of the German language is a prerequisite for being granted a residence title. This article is about how to prove this basic knowledge and what exceptions there are.

Maria and Tony have been a couple for some time. Both are Canadian citizens. Tony is an engineer and a very successful manager in the metalworking industry. When one day he is offered a managerial position in a large Austrian industrial company, he does not hesitate for long and moves to Austria. Maria is not thrilled about this because she has only recently taken up a job as a Spanish teacher in Canada and she is not yet sure about following Tony to Europe. She, therefore, decides to stay in Canada for the time being.

Tony receives a “Red-White-Red Card” as a particularly highly qualified worker without any problems.

Although neither of them expected it, the relationship between Tony and Maria lasts and after a year they both decide to marry and Maria is now moving to Austria as well.

As a wife, Maria is Tony’s family member and thus entitled to receive a Red-White-Red Card plus. When checking the application requirements, Maria finds out that she has, among other things, to prove basic knowledge of the German language. How is this possible for Maria?

Proof of basic German language skills

Basic knowledge of the German language must already be proven when submitting an initial application by means of a language certificate at A1 level of the European Framework of Reference for Languages. This is the first basic level of language skills, where you can understand and use everyday expressions and very simple sentences.

These language skills can be proven by various language certificates, which can be taken either with providers in Austria or all over the world. Language certificates from the following institutions are officially recognised:

Exceptions to the proof of basic German language skills

Sufficient proof of German language proficiency is of course also provided if higher language levels at A2 or B1 level can be proven. However, there are also exceptions for a number of groups of persons where no knowledge of German is required. For example, children under 14 years of age or persons who cannot reasonably be expected to acquire a language certificate due to their mental and physical condition do not have to provide proof of language proficiency.

In addition, certain family members (spouses or minor children) of holders of certain residence titles are also exempt from this regulation. Thus, family members of holders of a Red-White-Red Card as a particularly highly qualified worker or a Blue Card EU do not have to provide proof of foreign language proficiency.

Result

This means that Maria, as the wife of a holder of a Red-White-Red Card for particularly highly qualified workers, does not have to prove her knowledge of German when applying for her Red-White-Red Card plus. Nevertheless, as a foreign language teacher, Maria is aware of the importance of learning the language spoken in a country, which is why she nevertheless enrolls in a German course and intends to take the language exams as soon as her knowledge allows her to do so.

Employment of foreigners in Austria

The Employment of Foreign Nationals Act applies to the employment of third-country nationals in Austria. An example:

Tom is a US citizen, a college graduate who lives in Texas and has been working for several years, exclusively online, as a freelancer in sales and marketing for an Austrian start-up in the tech sector. When Tom travels to Austria one day to meet some of his colleagues in person, he likes it so much that he decides to move to Austria and continue working for his Austrian employer. He suggests this to his employer, who agrees to help him with the immigration formalities and provide him with all the documents so that he can be legally employed in Austria.

What has to be considered for the employment of third-country nationals in Austria?

The regulations for employment relationships of foreigners in Austria are governed by the Employment of Foreigners Act. According to this law, every person who does not have Austrian citizenship is considered a foreigner. However, there are also numerous exceptions for non-Austrians. For example, persons entitled to asylum, diplomats, pastoral workers, reporters for foreign media, and, above all, EEA citizens and their dependents are excluded from the scope of application of the Employment of Foreign Nationals Act.

Employment within the meaning of this Act is basically any employment relationship, working contracts similar to employment (such as a freelance service relationship or self-employment exercised in a relationship of dependence), training relationships, labor leasing, and company postings in Austria.

What does it mean when the Employment of Foreign Nationals Act applies?

If the provisions of the Employment of Foreign Nationals Act apply to an employment relationship, the employee may not start work until an official permit has been issued by the Employment of Foreign Nationals Authority. The regional office of the Public Employment Service Austria (AMS) is responsible for this.

Before the employment of a foreigner in Austria begins, an employment permit must be applied for and the employee may only start the employment relationship once this permit has been granted. The employer must then report the beginning (and after the end of employment) of an employment relationship with a foreigner to the competent regional office of the AMS within three days.

How are employment permits and residence titles related?

Basically, a residence title only creates the prerequisite for legal residence in Austria, whereas an employment permit is a prerequisite for being able to legally pursue gainful employment in Austria. Many residence titles (such as Red-White-Red Cards or Blue Card EU) combine both the residence title and the employment permit in one document. The advantage of such residence titles is that they can be applied for at the competent immigration authority in one go. The immigration authority then forwards the application to the competent office of the AMS for examination of the prerequisites according to the Employment of Foreign Nationals Act. If the requirements for the issuance of the residence title and the employment permit are met, the relevant residence title is issued by the immigration authority.

Red-White-Red Card (with employment permit included)

Since Tom has a university degree and also gets a relatively well-paid job, he is granted a Red-White-Red Card as a key worker. With this residence title, the AMS had to carry out a replacement worker procedure (this checks whether suitably qualified workers are available on the Austrian labor market), but could not find any suitable alternative candidates. Therefore the employment permit was granted to Tom. As soon as Tom has the coveted residence title in his hands, his employer can register him with social security and he can start working.

Note und 2 Hände

Red-White-Red Card: Cooperation between Immigration Authority and Labour Market Service

How do the Immigration Service and the Labor Market Service work together when applying for a Red-White-Red – Card?

Luana is an Albanian citizen and studies at the Vienna University of Economics and Business Administration. As she does not receive any financial support from home, Luana is forced to work while studying. She makes full use of the maximum permissible working time of 20 hours per week on the basis of her residence permit as a student. However, Luana’s success in her studies suffers from her intensive professional activity and at the latest when she only just reaches the 16 ECTS per academic year required for the extension of her residence permit, she decides to take a temporary break from her studies in order to work full time for a while and save enough so that she can devote herself exclusively to her studies in one or two years.

Luana is now thinking about how she can secure her stay in Austria permanently, even if she does not continue her studies. A friend who works as an accountant for a tax consultant tells Luana that payroll accountants are currently in great demand on the labour market and that with such a job one can obtain a Red-White-Red card as a skilled worker in a shortage occupation. To become a payroll accountant, Luana has to attend a demanding course, but a degree is not required for such a job.

Luana applies to her friend’s tax consultancy and immediately receives an offer in which the company agrees to pay for Luana’s payroll course if she agrees to work for the company for at least two years after successfully completing the training.

Luana agrees to this arrangement, successfully completes the course as a payroll accountant and the associated examination and now only needs to obtain a red-white-red card before she can start in her new job.

Competence of the authorities in issuing the Red-White-Red Card

The special feature of the Red-White-Red Card is that the applicant is granted both a residence permit and an employment permit with only one document and by only one authority. However, this (unfortunately) does not mean that only one authority will actually deal with an application.

Applications for a Red-White-Red Card must be submitted to the competent settlement and residence authority. The authority first checks whether the general requirements for the issuance of a residence title are met and whether there may be reasons why a residence title may not be issued.

If the general requirements for issuing a residence title are met and there are no obstacles to issuing such a residence title, the competent settlement and residence authority shall forward the application to the regional office of the Labour Market Service responsible for the employer’s place of business.

The regional office of the Labour Market Service then only checks whether the specific admission requirements for the Red-White-Red Card applied for are met.

After hearing the regional advisory board of the Labour Market Service (administrative bodies of the Labour Market Service consisting of representatives of employees, employers and the Labour Market Service ), the Labour Market Service has to confirm within four weeks to the competent settlement and residence authority whether the admission requirements are met so that the latter can subsequently issue the Red-White-Red Card applied for.

If the admission requirements are not fulfilled, however, the corresponding rejection is not made by the settlement and residence authority, but by the Labour Market Service itself, which does not send the negative decision directly to the applicant, but forwards it to the settlement and residence authority.

What does this mean for Luana’s application – which authority decides?

Even if the application for a Red-White-Red Card is only submitted to one authority and the residence title applied for can also only be issued by one authority, a negative decision can be made by two different authorities, namely by the settlement and residence authority as well as by the Labour Market Service. In both cases, it is possible to appeal against a rejection decision within four weeks of the notification of the decision. However, there is an essential difference in the administrative court to which the corresponding appeal is to be addressed. The regional administrative court of the respective province (Bundesland) in which the authority is located decides against decisions of the settlement and residence authority. In the case of a dismissive decision by the Labour Market Service, the Federal Administrative Court, which has branch offices in several cities in Austria, decides in all cases on an appeal against a decision.

Fortunately, this question does not concern Luana, because her application for a Red-White-Red Card as a skilled worker in a shortage occupation was decided positively and she was granted the residence permit she applied for, so that she can finally start in her new job.

Default appeal – What to do if the authority fails to act?

Application for the granting of Austrian citizenship

Valeriya is (still) a Ukrainian citizen. A few weeks ago she applied for Austrian citizenship. She submitted all the necessary documents together with her application. If the authorities now leave her application pending, she can lodge a default appeal.

However, she hopes to have her Austrian passport in her hands in a few weeks. In fact, shortly after her application, Valeriya receives an invitation to take the citizenship exam. She passes without any problems.

Valeriya now waits anxiously every day for a positive decision from the authorities, but nothing happens for months.

Despite repeated requests to the authorities, more than half a year has passed since Valeriya submitted her application. Hence, seh has not received any new information about her citizenship application.

Can Valeriy speed up the authorities’ decision?

When can a default appeal be filed?

As a matter of principle, an administrative authority must issue a decision without undue delay, but at the latest after 6 months. This also applies to an application for the granting of Austrian citizenship. This period begins on the day on which the application is received by the authority.

If the authority does not make a decision within this period, the applicant has the possibility to lodge a default appeal.

The written default appeal must comply with strict formal content requirements stipulated by law and must therefore be drafted very carefully.

After filing the appeal, however, the authority can still issue the requested decision within a period of up to 3 months. Whether it does so is at its discretion. If the authority does not issue the requested decision, it has to submit the default appeal together with all documents to the competent administrative court.

The court may limit its decision to the most important legal issues. The administrative court may order the authority to make up for the missed decision within a maximum of 8 weeks. In addition, the administrative court also has the possibility to decide on the matter itself.

Public liability claim in case of default

Last but not least, a serious violation of the authority’s duty to decide can also give rise to a claim for public liability, i.e. a claim for damages against the public legal entity of the authority (the respective federal state), which, however, must be asserted in separate court proceedings.

Valeriya is therefore not completely defenseless. In any case, she has the possibility to file a complaint against the authority’s inactivity.

Einwanderungsrecht und Asyl

Difference between asylum and immigration law

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.

Geld

Citizenship in Austria – Is your income high enough?

Is your livelihood sufficiently secured for the granting of Austrian citizenship?

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.

Enter your income and regular expenses and find out immediately whether your income is sufficiently secured to apply for Austrian citizenship.

This calculation tool only serves as a first orientation on the question of whether your livelihood is sufficiently secured for the granting of Austrian citizenship. The calculation is exemplary for a single person without children, with an application at the end of 2022.

This calculation tool does not provide binding legal information and cannot replace detailed advice in individual cases. Attorney-at-law Dr. Alexander Raidl, BA accepts no liability whatsoever arising from the use of this calculation tool.

Job-Seeker Visa for Austria

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

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

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.

Residence in Austria as an artist from a third country

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?

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

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

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

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.

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

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. 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.

Registered partnership and obtaining a residence title in Austria

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.

Checklist Red-White-Red Card

The Red-White-Red Card will celebrated its 10th  birthday in July 2021. It is, therefore, time to take stock of 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: Checklist Red-White-Red Card.

Acquisition of real estate by third-country nationals in Austria

Foreigners can only acquire real estate in Austria 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. The details regarding the competent authorities and the respective documents to be submitted are regulated separately for each Austrian province. In this article, the provisions applicable to Vienna are considered.

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 real estate 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 third-country nationals. 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).

Social or economic interest

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 acquisition of real estate 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 third-country national acquiring a property 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.

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.

documents for citizenship

Award of Austrian Citizenship to descendants of persecutees of the Nazi regime

1. As of September 1, 2020, an amendment to the Austrian Citizenship Act entered into force which enables direct descendants of persons who had to leave the country before May 15, 1955, because of persecution by organs of the NSDAP or by authorities of the Third Reich or because of their advocacy of the democratic Republic of Austria, to be granted Austrian Citizenship without having to give up their previous citizenship.

Extension of the application possibilities

2. The recent amendment to the law extended 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 who had to leave the country due to persecution by the Nazi regime. These persons can obtain Austrian Citizenship by notifying competent authority. Furthermore, this possibility has now been extended to descendants in direct descending line and adopted children who were already adopted as minors in place of children.

3. The ancestor to whom the descendant refers in his application 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 majority of those persecuted during the Nazi era have already died, the authorities may not make disproportionately high demands on the comprehensibility of these requirements.

Refusal to award citizenship

4. The reasons for which Austrian Citizenship cannot be granted are basically the same as those that apply to the granting of Austrian citizenship for other reasons. Accordingly, citizenship may not be granted to persons who have been convicted of serious criminal offenses or serious financial offenses, or to persons who pose a threat to public peace, order, and security, or who are affiliated with extremist or terrorist groups.

The importance of the National Fund in the application process

5. In order for an applicant to prove his or her entitlement to Austrian Citizenship, he or she must present certificates and documents from which his or her entitlement can be derived. Since this may involve considerable difficulties, the law expressly provides that the authority may consult the National Fund of the Republic as an expert. The task of the National Fund is to render payments to victims of National Socialism, in particular to those who had previously received little or no compensation; to those in need of special assistance, or those whose personal circumstances warrant relief. The National Fund also supports both survivors of the National Socialist regime and their families by offering to carry out family research and thus already has comprehensive documentation at its disposal in order to be able to provide the relevant evidence for a claim for the granting of Austrian Citizenship to the competent authority.

Competent authority

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

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).