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?
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.
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.
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.
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.