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23 Aug, 2022

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

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also applies to Ukrainians who had a valid residence title in Austria on 24 Feb 2022, but which was not extended or withdrawn, or if they have resided lawfully in Austria.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

Dr. Alexander Raidl, BA

Pramergasse 21, 1090 Wien

Pramergasse 21
1090 Wien

© Dr. Alexander Raidl. All rights reserved.
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