Tag: Appeal

Note und 2 Hände

Red-White-Red Card: Cooperation between Immigration Authority and Labour Market Service

How do the Immigration Service and the Labor Market Service work together when applying for a Red-White-Red – Card?

Luana is an Albanian citizen and studies at the Vienna University of Economics and Business Administration. As she does not receive any financial support from home, Luana is forced to work while studying. She makes full use of the maximum permissible working time of 20 hours per week on the basis of her residence permit as a student. However, Luana’s success in her studies suffers from her intensive professional activity and at the latest when she only just reaches the 16 ECTS per academic year required for the extension of her residence permit, she decides to take a temporary break from her studies in order to work full time for a while and save enough so that she can devote herself exclusively to her studies in one or two years.

Luana is now thinking about how she can secure her stay in Austria permanently, even if she does not continue her studies. A friend who works as an accountant for a tax consultant tells Luana that payroll accountants are currently in great demand on the labour market and that with such a job one can obtain a Red-White-Red card as a skilled worker in a shortage occupation. To become a payroll accountant, Luana has to attend a demanding course, but a degree is not required for such a job.

Luana applies to her friend’s tax consultancy and immediately receives an offer in which the company agrees to pay for Luana’s payroll course if she agrees to work for the company for at least two years after successfully completing the training.

Luana agrees to this arrangement, successfully completes the course as a payroll accountant and the associated examination and now only needs to obtain a red-white-red card before she can start in her new job.

Competence of the authorities in issuing the Red-White-Red Card

The special feature of the Red-White-Red Card is that the applicant is granted both a residence permit and an employment permit with only one document and by only one authority. However, this (unfortunately) does not mean that only one authority will actually deal with an application.

Applications for a Red-White-Red Card must be submitted to the competent settlement and residence authority. The authority first checks whether the general requirements for the issuance of a residence title are met and whether there may be reasons why a residence title may not be issued.

If the general requirements for issuing a residence title are met and there are no obstacles to issuing such a residence title, the competent settlement and residence authority shall forward the application to the regional office of the Labour Market Service responsible for the employer’s place of business.

The regional office of the Labour Market Service then only checks whether the specific admission requirements for the Red-White-Red Card applied for are met.

After hearing the regional advisory board of the Labour Market Service (administrative bodies of the Labour Market Service consisting of representatives of employees, employers and the Labour Market Service ), the Labour Market Service has to confirm within four weeks to the competent settlement and residence authority whether the admission requirements are met so that the latter can subsequently issue the Red-White-Red Card applied for.

If the admission requirements are not fulfilled, however, the corresponding rejection is not made by the settlement and residence authority, but by the Labour Market Service itself, which does not send the negative decision directly to the applicant, but forwards it to the settlement and residence authority.

What does this mean for Luana’s application – which authority decides?

Even if the application for a Red-White-Red Card is only submitted to one authority and the residence title applied for can also only be issued by one authority, a negative decision can be made by two different authorities, namely by the settlement and residence authority as well as by the Labour Market Service. In both cases, it is possible to appeal against a rejection decision within four weeks of the notification of the decision. However, there is an essential difference in the administrative court to which the corresponding appeal is to be addressed. The regional administrative court of the respective province (Bundesland) in which the authority is located decides against decisions of the settlement and residence authority. In the case of a dismissive decision by the Labour Market Service, the Federal Administrative Court, which has branch offices in several cities in Austria, decides in all cases on an appeal against a decision.

Fortunately, this question does not concern Luana, because her application for a Red-White-Red Card as a skilled worker in a shortage occupation was decided positively and she was granted the residence permit she applied for, so that she can finally start in her new job.

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.

My application to extend my residence permit was rejected – What can I do?

Yulia is originally from Ukraine, has been living in Vienna for 4 years, and has studied architecture at the Vienna University of Technology. She speaks perfect German and works part-time in small jobs as a waitress or promoter. Her right of residence in Austria is based on a residence permit “Student”, which she has to renew every year at the MA 35. For this renewal, she submits both her current study record and a confirmation of her academic achievements in the past year.

This year she has again applied for an extension of her residence permit. She knows that MA 35 is completely overloaded at the moment, and she is therefore not surprised that she has not heard anything from the authority even several weeks after submitting her application. One day, however, instead of the expected confirmation of the extension of her residence permit, she receives a ” Verständigung vom Ergebnis der Beweisaufnahme ” from MA 35, in which she is informed that the authority intends to reject her application because she did not achieve the required minimum academic performance of 16 ECTS in the past academic year. What happened here and what can Yulia do now?

Minimum study performance for the extension of the residence permit “student”?

If you want to migrate to Austria to study here, you first only have to fulfill the general requirements for the issuance of a residence permit. These are sufficient means of subsistence, health insurance in Austria and one must not endanger public order and security. Students no longer have to prove the legal right to accommodation according to local standards.

In addition, it must be proven to the immigration authorities that you have been admitted as a student to an Austrian university, university of applied sciences, or a recognized private university or that you are attending a preparatory course for admission to a regular course of studies as an extraordinary student.

A residence permit “student“ is always issued for one year only and must be renewed thereafter. Each extension requires that, in addition to the requirements already described, proof of the academic success of 16 ECTS or 8 semester hours per week is provided in the past academic year. The required proof of academic success must always be provided in the past academic year. If the application for extension was submitted in November 2020, for example, the authority must consider the academic year winter semester 2019 and summer semester 2020.

Can a residence permit also be granted if no sufficient academic success can be proven?

This is possible, but only under very limited conditions, which often cannot be proven to the authority. This is because there must have been reasons that prevented the achievement of the study success, which the applicant personally had no influence on and which were unforeseeable or unavoidable. This may include, for example, serious illnesses that necessitated a hospital stay of several weeks, but not examination anxiety or stress. The Austrian Supreme Administrative Court has already stated (VwGH 19.3.2021, 2021/22/0033) that study restrictions that occurred due to the Corona pandemic can be considered a recognized impediment, but it always depends on the concrete effects on the applicant.

What can Yulia do now?

Before MA 35 actually issues a dismissive decision, Yulia is requested to comment in writing on the legal opinion of the authority. In her written statement, Yulia explains that she was credited with academic achievements from another study program in the academic year 2019/20, but that the Vienna University of Technology did not enter this credit in her transcript of records until October 2020 for administrative reasons, which is why it now looks as if she did not complete these academic achievements in the academic year 2019/20, although this was very much the case.

What to do when a negative decision is issued?

MA 35 does not recognize Yulia’s argumentation and nevertheless issues a decision rejecting her application for a residence permit. Yulia is appalled by this wrong decision of the authority and wants to take action against it. How can she do this?

An appeal against decisions of MA 35 can be lodged with the Vienna Administrative Court. Such a complaint must be filed in writing with MA 35 within four weeks of the notification of the decision, and it must clearly explain why MA 35’s decision was legally wrong.

The proceedings are then subsequently conducted before the administrative court and thus by an independent judge, who – if so requested – also conducts an oral hearing and examines the facts of the case in detail.

Fortunately, the competent administrative judge recognizes that Yulia has indeed achieved sufficient academic achievements in the academic year 2019/20 and finally approves her application for an extension of her residence permit.