Significance of illegitimacy in the acquisition of Austria citizenship
Luan is passionate about playing football and is sent by his club to an Austria-wide selected youth team to participate in international tournaments. One of the requirements for participation in these tournaments is proof of Austrian citizenship.
Luan was born in Vienna in September 2012. His father is an Austrian citizen, his mother is Brazilian and has a permanent right of residence in Austria. Luan’s parents were never married and separated before he was born.
Luan, who until now has only held a Brazilian passport, now wants to obtain Austrian citizenship as well.
Acquisition by birth
The Austrian Citizenship Act provides that children acquire Austrian citizenship at the time of their birth if either the father or the mother is an Austrian citizen. Since Luan has an Austrian father, he assumes that acquiring citizenship should not be a problem for him.
However, this regulation is relatively new and only came into force on 1 Nov 2013. Until then, citizenship law distinguished between children born in and out of wedlock. Children born out of wedlock were only granted Austrian citizenship until then if the mother was an Austrian citizen at the time of birth. The Austrian citizenship of the father did not change this.
Although this regulation was eliminated with effect from the cut-off date of 1 Nov 2013, it does not have retroactive effect. This means that illegitimate children of Austrian fathers only acquire Austrian citizenship by birth if they were born after 31 Oct 2013.
Citizenship for Luan
Luan was therefore born too early to benefit from the new legal provisions for acquiring Austrian citizenship. If he wants to obtain Austrian citizenship, he is now dependent on a granting procedure at the citizenship authority, whereby the prerequisite for this is that Luan’s father, as an Austrian citizen, must also have custody.
Alternatively, Luan’s parents could marry, which would allow him to acquire Austrian citizenship through legitimation. If Luan is already 14 years old by then, he himself and his legal representatives would have to agree to the acquisition of citizenship within three years of his parents’ marriage. But since Luan’s parents already have other spouses, this option is ruled out for him. Therefore, the only option left for Luan is the arduous path of obtaining Austrian citizenship by way of awarding.