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Residence in Austria for EU citizens and their relatives

1) Even though the fundamental freedom of free movement of persons allows EU citizens to live or work in another Member State without restrictions, some important aspects must also be observed for this group of immigrants when immigrating to Austria. This article deals with the question of what to pay attention to and what bureaucratic requirements have to be met when settling in Austria as a citizen of another EU member state and what possibilities their relatives (who may or may not be EU citizens themselves) have for legal residence in Austria.

2) The rules described below apply not only to EU citizens but also to citizens of the European Economic Area (Iceland, Liechtenstein and Norway) and Switzerland. A further article on the consequences of the Brexit will be published in the next few days.

3) EU citizens are in principle entitled to stay visa-free in another Member State for a period of up to three months. If they wish to settle in Austria for a longer period, they may do so only if they are employed or self-employed in Austria 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 the stay is for educational purposes and the person concerned has sufficient means of subsistence and comprehensive health insurance cover for himself and his family members. In both cases social security benefits must not be used.

4) Sufficient means of subsistence are deemed to exist if they are above the social assistance threshold. In Austria, this limit results from the minimum income support (depending on the province, in Vienna in 2020: an income below the limit of € 917.35 for single persons or single parents, € 688.01 [per person] for couples and € 247.68 additionally for minor children [per child]).

5) EU citizens can be expelled, for example, if they make unreasonable use of social security benefits in the host country. However, when taking a decision in this regard, the authority must take account of the individual situation of the person concerned.

6) Relatives of EU citizens who make use of their right of residence in Austria and who are themselves EU citizens are also entitled to reside in Austria. Relatives are defined as spouses, registered partners or life partners (whereby the existence of a permanent relationship must be proven). They also include certain other relatives, such as relatives in the descending line (children, including stepchildren or adopted children and grandchildren up to their 21st birthday, provided that maintenance is actually paid), relatives in the ascending line (parents or grandparents, provided that maintenance is actually paid) or other relatives (who have already received maintenance in the country of origin or have lived in a household or who require urgent personal care due to health problems).

7) EU citizens or their relatives who wish to settle in Austria based on the described requirements must notify the competent authority (in Vienna this is the MA 35) within four months. The authority must then issue a registration certificate documenting the right of residence in Austria under EU law. In addition to a valid passport or identity card, the application must be accompanied by evidence of the right of residence under EU law (e.g. employment contract, proof of sufficient financial means, confirmation of school attendance, etc.).

8) Relatives of EU citizens (who claim their right of residence in Austria) who are not EU citizens themselves also have a right of residence in Austria under EU law. This also entails unrestricted access to the Austrian labour market. The status of relatives is assessed according to the same criteria as for relatives who are themselves EU citizens.

9) Third-country nationals who are relatives of EU citizens are entitled to obtain a residence card to document their right of residence in Austria. Also, in this case the application must be submitted to the competent authority within four months of entry to Austria. This document gives free access to the labour market in Austria. Moreover, 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?

The Red White Red 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 for the Red White Red Card, 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 Red White Red 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. However, whether the necessary points are achieved will then no longer be checked by the authority.

This means that a change of job is also possible for holders of a Red White Red Card, provided that an application for a new Red White Red Card issued to the new employer is submitted before the new job starts.

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.

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 Red White Red 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 (for which a legal residence is sufficient, a settlement is not required) 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 2020, the reference rate for singles was € 966.65, for married couples € 1,524.99 and for each child an additional € 149.15.

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 2020: € 299.95), 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 – € 299.95 = € 500.05). In the result therefore the income of the applicant amounts to € 1,499.95 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.