Skip to main content

Author: violin1090

Red-White-Red-Card Plus for displaced persons from Ukraine

Written by violin1090 on . Posted in Unkategorisiert.

On 10 April 2024, the Austrian federal government decided to issue the Red-White-Red Card Plus to displaced persons from Ukraine. This residence title includes unrestricted access to the Austrian labour market, both for employed and self-employed work.

The prerequisite for the issue of a Red-White-Red Card Plus is that the person concerned has been employed in Austria in the last twelve months. This puts Ukrainians in a better position than other applicants, as they must have been employed for at least 21 months in the last 24 months.

The current right of residence for displaced persons from Ukraine runs until 4 March 2025, but it is still unclear which residence permit will be granted to people who cannot obtain a Red-White-Red Card Plus because they have not yet worked in Austria for 12 months.

As soon as further details on the current government decision become known, information will be provided on this website.

Is personell leasing in Austria possible with a red-white-red card?

Written by violin1090 on . Posted in Blog.

The employment of third-country nationals in Austria is generally only possible after a work permit has been issued by the Public Employment Service . Can such an employment permit also be issued for personell leasing?

What is the issue?

In the case of personell leasing, an employer (transferor) makes its employees available to another employer (hirer) for the performance of work. While the employment contract is concluded between the transferor and the employee, the employee is actually deployed by the hirer.

The leased employees provide their services to the employer’s customers, they are integrated into the employer’s operations and all the same protective measures must be taken as for the employer’s own employees. Temporary workers may not be discriminated against and are entitled to appropriate remuneration in line with local practice. This is at least as much as the collective agreement of the employing company provides for a comparable activity of comparable permanent employees.

It is also permissible for lease personell from abroad to be transferred to Austria. However, such employees must also be treated in accordance with the minimum standards applicable in Austria with regard to pay, holidays, notice periods, working hours, etc. A transfer from the EEA is generally not subject to authorisation but an official permit is required for transfers from other countries.

Can an employee from a third country be employed in Austria through personell leasing?

The Aliens Employment Act expressly stipulates that an employment permit may only be issued if an employer will employ a worker in a position in his own company. The personell lease is therefore expressly excluded.

An exception exists in the event that the employer has a special permit for the transfer of labour from abroad to Austria. In this case, an employment permit can also be issued in the case of a cross-border supply of labour. However, such a special permit may only be issued if this is absolutely necessary for labour market policy and economic reasons, if the workers are only available through labour leasing and if this does not endanger the wage and working conditions of domestic employees.

Is there a red-white-red card for personell leasing?

As the requirements for the issue of an employment permit must also be met when applying for a Red-White-Red Card (i.e. a residence permit combined with an employment permit), the employer must also employ the third-country national worker in a workplace in his own company. The hiring out of labour in conjunction with a Red-White-Red Card, an EU Blue Card or as a dependent artist is therefore not permitted. Only a Red-White-Red Card Plus or a permanent residence permit provide unrestricted access to the Austrian labour market.

Residence marriage and police check

Written by violin1090 on . Posted in Unkategorisiert.

What is a residence marriage?

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

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

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

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

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

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

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

Proof of joint family life

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

Austrian citizenship for stateless persons

Written by violin1090 on . Posted in Blog, Unkategorisiert.

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

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

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

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

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

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

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

Written by violin1090 on . Posted in Unkategorisiert.

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

Criminal law consequences of a car accident

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

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

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

Criminal record and public order and safety

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

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

Future prognosis

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

Reisepass Oesterreich

Danger to public peace, order and security – citizenship denied

Written by violin1090 on . Posted in Unkategorisiert.

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

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

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

When can the granting of Austrian citizenship be denied?

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

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

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

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

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

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

Consequence for applicants

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