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.