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.

Residence permit for intra-corporate transferees (“ICT”)

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).

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 has the application for a residence permit for intra-corporate transferees to 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 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.

After overcoming all the bureaucratic hurdles, Jason can finally 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.