Tag: Immigration

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.

Residence title for family members – What happens in the event of a divorce?

As a third-country spouse of an Austrian citizen, you usually receive a residence title as a family member without any problems, but what are the consequences of a divorce?

During a study visit to the USA, Julia, an Austrian, meets the American football player Aaron and falls in love with him. After only a few weeks, the two decide to marry and live together in Austria in the future.

As a US citizen, Aaron is a third-country national, but as the spouse of an Austrian woman who finds a well-paid job after returning from the USA and has also inherited a family home from her parents, he receives a residence title as a “family member” without any problems. This residence title is initially issued for one year, can be extended on application and entitles the holder to take up any gainful employment in Austria.

Problems of life in Austria

Just a few weeks after the wedding, things start to crumble between Julia and Aaron. Aaron is disappointed that he cannot continue his career as a football player in Austria and cannot find any other employment. Julia, on the other hand, is absorbed in her new job and often works late into the night. Just three months after the wedding, Aaron tells Julia that he is no longer interested in a life with her and wants a divorce. After an initial shock, Julia realises that this marriage was a big mistake and agrees to the divorce.

In the meantime, however, Aaron has already started taking a German course and has fallen in love with his German teacher Sarah, with whom he begins a relationship. For this reason, he wants to continue living in Austria after his divorce, although he has learned from his experience with Julia and wants to take his time with a possible second marriage. How and under what circumstances can Aaron maintain his right of residence in Austria even after his divorce from Julia?

Right of settlement of family members

Family members who have been granted a residence title “family member” acquire an independent right of settlement. However, if the status of a family member ceases due to divorce, this residence title can no longer be issued. However, if the former family member fulfils the general requirements for the issuance of a residence title and there are no obstacles to the issuance of a residence title, a “Red-White-Red Card Plus” is to be issued. The cessation of the status as a family member has to be notified to the authorities within one month.

General requirements and obstacles to issuance of a residence title

Residence permits may only be granted to a foreigner if this is not contrary to public interests and if relations with other states are not substantially affected if a legal entitlement to accommodation customary in the locality is given, if health insurance coverage covering all risks exists and if sufficient means of subsistence can be proven.

Obstacles to issuance are, for example, valid entry bans, overstaying the visa-free stay in Austria or legally binding punishments for unlawful entry into Austria.

Exceptions

Aaron has lived in his wife’s house until now, was covered by health insurance through her professional activity and does not receive any income himself. It is therefore currently not possible for him to fulfil the general requirements for the granting of a residence title in Austria. Under certain circumstances, however, a residence title can be granted to family members even if they do not fulfil the general requirements.

This is the case if the spouse dies, the spouse is to blame for the divorce or for reasons that are particularly worthy of special consideration. Such reasons worthy of special consideration exist in the case of victims of a forced marriage or if family members were victims of violence or if the residence title was withdrawn because the merging spouse was legally convicted of a committed criminal offence.

What can Aaron do now?

If Aaron were to apply for a Red-White-Red Card Plus immediately after his divorce, his application would have to be rejected because the general requirements for a residence title were not met and Aaron would lose his right of residence in Austria. One of the exemption provisions would not apply to him either.

He should therefore try to delay the divorce until he can stand on his own two feet, i.e. until he has found his own accommodation, taken out health insurance and got a job that guarantees him at least a certain basic income. Once he has achieved this, he can also be granted a “Red-White-Red Card Plus” after the divorce. 

Checklist Red-White-Red Card

The Red-White-Red Card celebrated its 10th  birthday in July 2021. It is, therefore, time to review whether the goal pursued with it, namely to bring qualified workers to Austria on the basis of objective criteria, has actually been achieved or whether it has merely created an administrative hurdle race for immigrants willing to integrate.

Why Red-White-Red Card?

With the introduction of the Red-White-Red Card in 2011, the Austrian legislator wanted to create a new and more flexible way to bring skilled workers to Austria than it had been possible with the rigid system of key workers until then. A major innovation at that time was that highly qualified workers were also allowed to enter Austria with a job-seeker visa in order to look for a job here.

The issuance of residence permits was to be based on objective criteria such as the impact of the Austrian labour market, the economic performance of the national economy, and the expected integration ability of the immigrants.

Red-White-Red Card for whom?

The aim of the new regulations was to provide access to the Austrian labour market for highly qualified key workers, skilled workers in shortage occupations, and graduates of Austrian universities who originate from third countries, in order to cover areas in which a labour shortage cannot be met by the labour potential available domestically.

How many red-white-red Cards?

Since 2020 was an exceptional year in every respect, the establishment and residence statistics of the Ministry of the Interior for 2019 must be used to answer this question in the most objective way possible.

In 2019, there were almost half a million valid residence titles in Austria, over 60% of which were “EU permanent residence titles”, i.e. the residence title that forms the final stage on the path to integration (after that, there is only the possibility to apply for Austrian citizenship). Another 20% of the residence titles were the Red-White-Red Card Plus and only slightly more than 1% of all residence titles in 2019 were a “simple” Red-White-Red Card.

Of these Red-White-Red Cards, the largest share, more than half, was issued to other key workers, while the smallest share, not even 2%, was issued to self-employed key workers and start-up founders.

Is the Red-White-Red Card a success?

If you look at the bare figures, the answer to this question must clearly be no. Even though the Red-White-Red card aims at the immigration of as many highly skilled workers as possible to Austria, almost 10 years after its introduction it remains only an option for the elite of immigrants and thus for a few who are able to meet the high requirements that applying for a Red-White-Red Card imposes on them. Most of the initial applications for a residence title in 2019 were for a “family member” residence title, i.e., a residence title in which the applicant’s right of residence is granted based on the right of residence of a close relative and not on the applicant’s individual professional qualifications.

Nonetheless, the Red-White-Red card offers a sensibly coordinated model that provides those willing to immigrate and integrate with the opportunity to secure a right of residence in Austria through professional qualifications.

An overview of the possibilities to obtain a Red-White-Red Card can be found here: