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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.

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.

Ausländerbeschäftigung

Change in the role of the AMS Regional Advisory Council in the granting of emplyoment permit

Written by service on . Posted in Blog, Unkategorisiert.

On 20 July 2023, several amendments to the Employment of Foreign Nationals Act (Ausländerbeschäftigungsgesetz) in connection with the granting of employment permits to foreign nationals came into force in Austria. These amendments provide relief if the regional advisory board of the Public Employment Service Austria (AMS) does not approve the granting of an employment permit.

Repeal of the law by the Constitutional Court

In its decision of 14 December 2021, the Austrian Constitutional Court had completely repealed the provision of the Employment of Foreign Nationals Act that required unanimous approval of the granting of an employment permit by the Regional Advisory Board of the Public Employment Service Austria (AMS). This was justified by the fact that an administrative authority is thus bound in its decision-making competence to the approval of a non-authoritative body.

Employment of foreigners for particularly important reasons

For this reason, a new regulation has now been created that enables the granting of an employment permit even if the Regional Advisory Board of the Public Employment Service Austria does not agree. Accordingly, the granting of an employment permit is now also permissible if the employment of a foreigner is necessary for particularly important reasons. Such important reasons are, on the one hand, the preservation of existing jobs of domestic workers and, on the other hand, the employment of a qualified worker in a shortage occupation. In addition, such an important reason can also be justified by a public or supra-company macroeconomic interest.

Residence permit family community

In this context, the employment of persons with a “family community” residence permit (such as spouses of persons with a residence permit) was also newly regulated. Such persons can also obtain an employment permit without the consent of the AMS regional advisory board, provided that all other requirements are met, such as a positive labour market check.

Bauch von Schwangerer

Red-White-Red Card and pregnancy

Written by service on . Posted in Blog, Unkategorisiert.

What effects do pregnancy and maternity leave have on a Red-White-Red Card and is an extension of the right of residence possible?

Mariana is originally from Colombia. She studied pharmacy in Bogota and worked as a scientist at the National University of Colombia after her studies. Due to an advertisement in a professional magazine, Mariana learns about a vacancy at a pharmaceutical company in Austria that would fit her profile perfectly. Since Mariana has no ties in Colombia and she has always wanted to live in Europe for a while, she applies for the job, which she actually gets.

Since Mariana is very well educated and speaks English fluently, she receives a Red-White-Red card in Austria as a particularly highly qualified worker and can start in her new job just a few weeks after applying.

At her new workplace, Mariana meets Peter, with whom she falls in love at first sight, and begins a love affair with him. A few weeks later, Mariana is pregnant. When she tells Peter, he doesn’t want to know about it and breaks off contact with Mariana. Mariana decides to raise her child alone, but is determined to stay in Austria and also keep her new job, which she enjoys very much.

Loss of residence permit due to pregnancy?

A Red-White-Red Card is restricted to employment with a specific employer for the first two years after it is issued. So, if Mariana loses her job, she would also lose the requirements for the issuance of the Red-White-Red – Card (see this article).

However, as soon as Mariana informs her employer of her pregnancy, her employment cannot be terminated until 4 months after giving birth or if taking maternity leave until 4 weeks after the end of maternity leave. So, for the time being, Mariana does not have to fear that she will lose her residence permit as her employer cannot terminate her employment.

What is the situation during maternity leave or parental leave?

Expectant mothers are generally not allowed to be employed during the last 8 weeks before the birth and 8 weeks after the delivery. These periods are considered to be full periods of employment and do not terminate the employment relationship.

The employment relationship is not interrupted by maternity leave but the employee’s duty to work and the employer’s duty to pay are suspended. This means that the conditions for obtaining a Red-White-Red Card do not cease to apply during maternity leave (as long as there is no minimum payment required for the obtaining of a Red-White-Red Card).

Application for Red-White-Red Card Plus

If Mariana has had a Red-White-Red Card for two years, she can apply for a Red-White-Red Card Plus. To do so, she must prove that she was employed under the conditions for the Red-White-Red Card for at least 21 months within the last 24 months before applying. Periods of employment prohibition during maternity and maternity leave are explicitly included.

It should be noted, however, that the general requirements for the issuance of residence titles must also be fulfilled when applying for the Red-White-Red Card Plus. One of these requirements is proof of a sufficiently secure livelihood. Even though entitlements to family allowance and childcare allowance are in principle to be considered as regular income, Mariana must reach the threshold values of the equalisation supplement reference rate. If the regular income is not sufficient for this, Mariana would also have to prove her sufficiently secure livelihood through existing savings.

Insolvency of the employer and the effects on the Red-White Card

Written by service on . Posted in Unkategorisiert.

Alice is originally from Georgia. She graduated from the State University of Tbilisi with a Bachelor’s and a Master’s degree in Computer Science and after graduation worked as a programmer for a few years in Ukraine and then in Italy. During her stay in Italy, her employer informs Alice that he intends to expand his business to Austria and establish a subsidiary here. Alice is asked if she would like to help set up the Austrian branch and take up a job with the Austrian subsidiary. Alice loves new challenges and is enthusiastic about the idea and so the Austrian company applies for a Red-White-Red Card as another key worker for Alice, which is issued to her after a few weeks. Of course, she is not thinking about possible insolvency.

Insolvency of the employer

Unfortunately, business for Alice’s employer in Austria is not going as hoped. At first, the Italian parent company still promotes the development of the Austrian subsidiary, but increasingly loses interest in the business in Austria and finally stops all payments. As a result, payments due can no longer be paid on time by the Austrian subsidiary. For several months, Alice only receives a part of her salary, which is also only paid irregularly, and finally, she learns that insolvency proceedings have been initiated against her employer. What are the consequences for Alice?

The employment relationship remains in force

An employer’s insolvency does not mean that Alice’s employment relationship is automatically terminated. In principle, it continues unchanged. However, the employer’s duties are no longer performed by the company’s management, but by a court-appointed insolvency administrator. In principle, the insolvency administrator has the possibility to terminate the employment relationships of the employees of the insolvent company, whereby the termination options are not only based on labour law, but also on insolvency law regulations.

Withdrawal of the Red-White-Red – Card

Unfortunately, as part of the insolvency proceedings, the closure of the company is ordered and Alice is terminated by the insolvency administrator with due notice. What does this now mean for her Red-White-Red – Card?

As already examined in detail in this article, the loss of a job also means the loss of one of the conditions for the issuance of the Red-White-Red – Card. As a consequence, the competent immigration authority is obliged to initiate a procedure to withdraw the Red-White-Red – Card.

Outstanding remuneration claims in the event of employer insolvency

In the event of an employer’s insolvency, employees’ outstanding remuneration claims are secured by the Insolvency Remuneration Fund. Employees can register their outstanding claims in the insolvency proceedings and apply to IEF-Service-GmbH for payment of insolvency remuneration. Insolvency remuneration is paid for current remuneration, for claims upon termination of the employment relationship, claims for damages, other claims arising from the employment relationship (expenses, company pensions, mileage allowance, etc.), and possible legal costs. Payment is only made upon application, which must be submitted within 6 months of the opening of the insolvency proceedings. The outstanding claims must be proven as precisely as possible.

Consequences for Alice

For Alice, this means on the one hand that she must find new employment as soon as possible, on the basis of which she can apply again for a Red-White-Red card, and on the other hand that she must assert her outstanding claims against her employer. In any case, Alice should act as quickly as possible so that she does not lose any of the claims to which she is entitled and can also secure her right of residence in Austria.

Changes to the Red-White-Red Card and EU Blue Card as of 1 October 2022

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On 1 October 2022, the largest legislative reform of the Red-White-Red Card and the EU Blue Card in Austria in recent years came into force. Even if the changes only seem to affect some details at first glance, in individual cases they can have a great influence on whether an application can be successful or not. Especially in the case of the EU Blue Card, there are considerable facilitations for applicants. The most important changes are listed below.

Changes in the minimum payment for other key workers and graduates

Up to now, graduates had to prove a minimum gross monthly salary of € 2,551.50 in order to apply for a Red-White-Red Card. This threshold is now dropped. All that has to be proved is a salary according to the applicable collective agreement (which is obligatory anyway) plus a possibly existing overpayment customary in the company.

The distinction between applicants under and over 30 years of age when applying for a Red-White-Red Card as other key workers has been abolished. The lower minimum salary of € 2,835.00 per month (value for 2022) now applies regardless of age.          

Introduction of a Red-White-Red Card for regular employees

Persons who have worked as registered seasonal workers in the same economic sector for at least seven months in the past two calendar years can obtain a Red-White-Red Card, provided they can prove German language skills at A2 level and the employer holds out the prospect of a permanent employment relationship. A labour market test is not required.        

Simplifications in the points system of the Red-White-Red Card

Achieving the required points according to the corresponding points system for the issuance of a Red-White-Red Card (Annex A, B and C to the Act on the Employment of Foreign Nationals) will be made easier. From now on, half-years of work experience will also be counted, language certificates to be submitted may be up to 5 years old, and skilled workers in shortage occupations will now receive the highest possible number of points in this category for having completed training in the shortage occupation. Furthermore, additional points are awarded if the predominant company language is English and other key employees do not have to provide evidence of work experience adequate to their training, but any kind of work experience is to be valued accordingly.

Strong upgrading of the EU Blue Card

The most far-reaching changes are brought about by the legal reform for the EU Blue Card. First of all, the minimum salary to be proven for the issuance will be reduced from one and a half times to the simple average Austrian gross annual salary. In 2022, this means a gross annual salary of € 44,395.00 plus special payments. However, the Federal Minister of Labour and Economic Affairs has been given the option of raising the minimum salary requirement to the previous level in the event of an above-average increase in wages or an unfavourable situation on the labour market,

In addition, an EU Blue Card for IT specialists will be introduced. For this purpose, no university studies need to be proven, but three years of relevant professional experience acquired within the last seven years prior to application is sufficient.

In addition, holders of an EU Blue Card now have the advantage that they can change their employer relatively easily after a period of employment of 12 months. No labour market test is then required and the new employment may also be taken up immediately, even before a decision has been made on the application for the new EU Blue Card. If the applicant has not yet been employed for 12 months, the new employment may only be taken up after 30 days from the date of application.

Furthermore, holders of an EU Blue Card have 6 months from the loss of their job to find a new job before the AMS has to send a notification to the residence authority that the requirements for the issuance of the residence title are no longer met.

Self-employment

The reform of the law also makes things easier for self-employed persons. For example start-up founders only have to prove a capital of € 30,000.00 (instead of € 50,000.00 as before) for the issuance of a Red-White-Red Card, half of which must be equity capital. In addition, holders of a Red-White-Red Card, an EU Blue Card or a Settlement Permit for Artists are allowed to pursue a self-employed gainful activity in addition to their main activity, provided that this is subordinate to the actual employment and the legal requirements for exercising it are met.

Right of residence for displaced persons from Ukraine and residence title in Austria

Written by service on . Posted in Unkategorisiert.

With the Displaced Persons Ordinance, displaced persons from Ukraine who had to leave their homeland due to the war were granted a temporary right of residence in Austria.

Oxana is a Ukrainian citizen. She graduated in business studies in Kyiv and has been working in the management of hotels around the world for several years. At the time when war broke out in Ukraine in February 2022, Oxana was working in a luxury hotel in Dubai.

Oxana had been planning to come to Vienna for some time to work in the management of a hotel at the Vienna Ringstrasse. She entered Austria in May 2022 and shortly afterward applied for a Red-White-Red card as Another Key Worker.

A few weeks later, Oxana received notification from the immigration authority that the authority would probably reject her application because Oxana, as a Ukrainian citizen who had entered Austria after 24 Feb 2022, was already entitled to a right of residence in Austria on the basis of the Displaced Persons Ordinance. Applying for a residence title such as a Red-White-Red Card is therefore not permissible. Oxana does not understand this, because she did not come to Austria as a refugee, but as a regular immigrant.

Who is covered by the Displaced Persons Ordinance?

The Ordinance on Displaced Persons applies to Ukrainian citizens residing in Ukraine as well as to third-country nationals or stateless persons who have been displaced from Ukraine due to the armed conflict as of 24 Feb 2022. In addition, family members (spouses, minor children, or other relatives who have lived in a domestic community) of these persons are also covered by the Ordinance.

In addition, the Ordinance also applies to Ukrainians who had a valid residence title in Austria on 24 Feb 2022, but which was not extended or withdrawn, or if they have resided lawfully in Austria.

All these persons are entitled to a temporary right of residence in Austria at least until 3 March 2023. However, this right expires if the person concerned leaves Austria for more than a short period of time.

For whom are there exceptions to the applicability of the Displaced Persons Ordinance?

There are exceptions to the Displaced Persons Ordinance for persons who have committed crimes against peace, a war crime, or a crime against humanity as defined by international conventions. Or for persons who have committed serious crimes or have been guilty of acts contrary to the purposes and principles of the United Nations; or if they pose a threat to the security of the host state or to the general public.

What happens when the right of residence expires?

The ordinance itself provides that it is automatically renewed for six months, but no longer than one year if it is not terminated. Furthermore, the law also expressly provides that in the event that the armed conflict continues and permanent integration of the displaced persons should become necessary, it may be possible to apply for a residence title in Austria even if the necessary requirements for this are not met.

For Oxana, this means that she now has to face the cumbersome bureaucracy of the Austrian immigration authorities and explain to them why she does not fall under the displaced persons ordinance and is, therefore, to be classified as a regular immigrant. However, Oxana is very optimistic that she will succeed.

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

Written by service on . Posted in Unkategorisiert.

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.

Residence permit for Intra Corporate Transferees – ICT

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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.

Geld

Necessary income for the granting of Austrian citizenship

Written by service on . Posted in Blog, Unkategorisiert.

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.