Skip to main content

Tag: change of purpose

Effects of a criminal record on the right of residence in Austria

Written by violin1090 on . Posted in Unkategorisiert.

A criminal record can have very unpleasant consequences and can have a lasting impact on your life for years to come. What impact can a criminal record have on the right of residence of immigrants?

Criminal law consequences of a car accident

Rajid is an Indian citizen and has been working as a highly qualified IT specialist in Austria for several years and lives here with his family. He has a red-white-red card plus, owns a flat for which he is paying off a loan and is provided with an SUV as a company car by his employer.

One evening, after the departmental Christmas party at his company, Rajid drives home from his office in his company car. He has to drive a short distance on the motorway. Because he has had a stressful week and also had a glass of wine at the party, Rajid accidentally takes the wrong lane on the motorway slip road and ends up driving the motorway in the wrong direction. Just a few seconds after joining the motorway, Rajid realises his mistake and wants to stop and turn around, but it’s too late. Rajid collides head-on with a small car in his SUV. While Rajid is able to get out of his vehicle unharmed, the driver of the small car dies at the scene of the accident.

Due to his alcoholisation, even if only slight, Rajid is sentenced by a criminal court to a fine for negligent homicide and therefore has a criminal record. How does this affect his right of residence in Austria?

Criminal record and public order and safety

The immigration authorities are obliged to check whether the issuing a residence permit is contrary to the public interest. This is the case, among other things, if the stay would endanger public order or security. If the applicant already has a criminal record in their country of origin (the authority always requires an extract from the criminal record of the country of origin and those countries in which the applicant has lived for more than 6 months), the authority must draw up a risk prognosis. In doing so, it must take into account the specific misconduct that resulted in the previous conviction. However, the threat to public order and safety may not only be due to criminal convictions. Reports alone can also be sufficient for the immigration authorities to assume a threat to public order and security.

A criminal conviction that occurs after a residence title has been issued can have an impact on the renewal of an existing residence title, as the immigration authorities also examine in a  renewal or change of purpose case whether the residence is contrary to public interests. On the other hand, a residence title that has already been issued can also be revoked if the Federal Office for Immigration and Asylum has issued a return decision and a threat to public order and security can be assumed as a result. Here too, the nature and seriousness of the offence on which the crime is based and the resulting personality profile must be assessed. However, the revocation of the residence permit can be prevented even in the event of a threat to public order and security if this would interfere with the constitutionally protected right to private and family life.

Future prognosis

In view of the fact that Rajid, apart from this conviction, has not shown any conspicuous behaviour towards the authorities and that he also admitted his guilt during the criminal proceedings, took responsibility for his crime and attended addiction therapy, the immigration authorities do not assume that there is a threat to public safety. Rajid’s current residence permit will therefore not be revoked and he still has the chance to obtain a permanent residence permit in Austria as soon as he has been resident in Austria for at least 5 years.

Meaning of a change of purpose application for a residence title

Written by service on . Posted in Blog.

What are the advantages of a change of purpose application and what distinguishes it from a renewal application or initial application?

Tim is a US citizen, studies in Austria and has had a residence permit “student” for several years, which he has to renew annually. He has been together with Andreas, an Austrian citizen, for 2 years now and is already living with him in his flat. They are also planning to enter into a registered partnership next year.

In the past academic year, Tim had a lot on his plate and could not concentrate properly on his studies. After he has applied again for an extension of his “student” residence permit, he receives information from the immigration authorities that he did not achieve the required academic success in the past academic year to extend his residence permit.

Tim is initially devastated, but Andreas knows that registered partners can obtain a residence title in Austria as family members. The two therefore conclude the registered partnership earlier than originally planned and assume that the authorities will simply grant Tim the right residence title. What do you have to pay attention to?

Application for a change of purpose in case of a change of the purpose of residence

If during the current period of validity of an already existing residence title the requirements change so fundamentally that a new residence title with a different purpose of stay can be applied for, an application for a change of purpose can be submitted to the competent immigration authority at any time, even before the current residence title expires. The advantage of such a change of purpose application is that it can be filed within the country. Even a rejection of an application for a change of purpose has no effect on the existing right of residence. An application for the extension of an existing residence permit can therefore still be submitted as long as the current residence title is still valid.

Missing the change of purpose leads to initial application

Even after Tim receives the information from the immigration authorities that his study success is not sufficient to extend his residence permit “student”, he does not care any further and simply sends his partnership certificate to the authorities without any further comment.

Since Tim has failed to change his current application for extension into an application for a change of purpose, the authorities issue a negative decision on his application for extension of his “student” residence permit. After Tim receives this decision, he is very surprised and writes an e-mail to the authorities asking them to grant him a residence title as a “family member” due to his registered partnership with an Austrian citizen.

Unfortunately, this application comes too late, because an application for a change of purpose is only permissible until the decision on an application for renewal is issued. Tim’s application for a residence title is therefore to be regarded as an initial application.

Disadvantages of the initial application

Once the decision rejecting the application for renewal becomes final, Tim is in Austria illegally and the residence title he applied for as a “family member” cannot be granted to him, even if all the necessary requirements are met. On the one hand, he has to leave for USA and wait there for the residence title to be granted, and on the other hand, his current stay in Austria is thereby interrupted and the 5-year period for obtaining a permanent right of residence in Austria starts all over again.