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Tag: Residence Permit

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.

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Consolidation of residence in Austria

Written by service on . Posted in Blog.

Is consolidation of residence possible in Austria? In principle, a return decision must be issued against third-country nationals who are staying in Austria without a right of residence. However, there are exceptions under certain circumstances for persons who have already resided in Austria for a longer period of time.


Milan is a Serbian citizen and has been living in Austria for more than 10 years. He holds a “student” residence permit. Although he has interrupted several studies and started new studies in the past years, he has always been able to provide the proof of academic success required for the extension of his residence permit. In the meantime, however, Milan no longer has any motivation to study and has not attended any courses in the past year. Now he is faced with the problem that he cannot provide the required proof of academic success and his residence permit can no longer be extended. Milan assumes, however, that after more than 10 years in Austria he has already acquired some right of residence by now anyway. Is that right?

What is a return decision?

In principle, any person who is not an Austrian citizen may only stay in Austria after lawful entry and only on the basis of a valid right of residence. Thus, if a person did not enter lawfully and does not have a lawful residence in Austria, he or she is staying in Austria unlawfully. In the case of unlawful residents, the authority, specifically the Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl), has to initiate a procedure for issuing a return decision. A return decision is a measure taken by means of an official order to end the unlawful residence of a third-country national.
If Milan applies again for an extension of his residence permit “student” and if this application is rejected by the immigration authorities and subsequently becomes legally binding, Milan is staying in Austria illegally and proceedings for a return decision have to be initiated against him.

Are there exceptions for persons who have been living in Austria for a long time?

Under certain circumstances, the issuance of a return decision is not admissible even if the person concerned is staying in Austria illegally. If a return decision interferes with the right to private and family life, it may be inadmissible. In this case, the authorities have to weigh up the interests. It is assessed whether the public interest in the termination of residence outweighs the constitutionally protected right to private and family life. Among other things, the duration of residence, the actual existence of a family life, the degree of integration, the criminal record and similar factors are included in the assessment. This is always a case-by-case decision.


In addition, however, no return decision may be issued against persons who have already been lawfully resident in Austria for 8 years without interruption, unless certain facts justify the assumption that the residence of the person in question poses a serious threat to public order and security.
In the case of persons who have already been legally and continuously resident in Austria for more than 5 years, no return decision may be issued if it would otherwise be issued due to insufficient means of subsistence, lack of sufficient health insurance coverage, lack of own accommodation or due to the possibility of a financial burden on a territorial authority (e.g. social assistance).

Has Milan now already achieved a consolidation of residence?

The answer is unfortunately no. Since the regulations on the consolidation of residence only concern settled persons, these regulations do not apply to persons who stay in Austria on the basis of a residence permit. So although Milan has already been living in Austria for more than 10 years, he would have to leave Austria after the negative outcome of his renewal procedure and file a new initial application in his home country.

Residence permit for Intra Corporate Transferees – ICT

Written by service on . Posted in Blog, Unkategorisiert.

How can Intra Corporate Transferees – ICT be legally employed in Austria?

Jason is a US citizen and has been working as a trainee in a large pharmaceutical company in the USA for 8 months. As part of his traineeship, Jason is required to work at a European subsidiary for at least 6 months in order to get to know the international orientation of his employer.

Jason is offered several traineeship positions in Europe, but he finally chooses Vienna because part of his family originally comes from Austria. What requirements does Jason now have to fulfill in order to start working as a trainee in Austria?

For whom is a residence permit for intra-corporate transferees possible?

Workers from third countries who work for an internationally active employer and are temporarily employed in one or more branches in an EU member state can obtain such a residence permit for a temporary stay without the intention of settlement. The prerequisite for this is that the worker in question is employed as a manager, specialist, or trainee. A specialist or manager must already have been employed in the company for 9 months (a trainee for 6 months) before the residence permit can be applied for.

What requirements must be met for a residence permit to be granted to intra-corporate transferees?

First of all, the applicant must be able to present an employment contract with the foreign employer and a secondment letter (working conditions for the duration of the transfer as well as a return guarantee for the foreigner to an establishment based outside the EU). This must also prove that the applicant can return to a branch of the company after the end of his/her secondment, which must be located in a third country (i.e. outside the EU).

Moreover, the employer must comply with the minimum standards prevailing in Austria with regard to pay, leave, and maximum working hours, and the employee must also be duly registered with social security. In addition, the establishment in Austria must not be affected by a strike, any existing requirements for exercising a regulated profession must be met and the employer must not have violated the provisions of the Employment of Foreign Nationals Act more than once in the last twelve months. Finally, the domestic branch must not have been established solely for the purpose of facilitating the entry of transferred workers, and the branch must be engaged in genuine business activity and must not be insolvent.

In addition, the general requirements for the granting of residence titles must be fulfilled (secure livelihood, health insurance, no threat to public security), whereby proof of accommodation customary in the locality does not have to be provided.

Where and how must the application for a residence permit for intra-corporate transferees be filed?

The application must be submitted by the employee concerned in person to the Austrian representation authority abroad (embassy, consulate).  However, if the employee in question can enter Austria without a visa, the application can also be submitted in Austria at an immigration office.

Together with the application, an employer’s declaration must be submitted in which the employer provides more detailed information on the applicant’s business and planned employment.

After examining all application documents, the competent immigration authority has to forward the application to the Public Employment Service Austria (AMS), which prepares an expert opinion on the fulfillment of the labour market-relevant prerequisites. If all prerequisites are met, this expert opinion is forwarded to the immigration office, which then issues the residence permit.

Summary

For Jason, this means that he has to apply for a residence permit as Intra Corporate Transferees – ICT at the Austrian embassy in the USA before he enters the country and starts his traineeship in Austria. Documents such as the employer’s declaration or a secondment letter, which have to be submitted together with the application, will be provided to Jason by the Austrian branch of the company.

The authorities must make a decision on Jason’s application within 8 weeks of the application being submitted. Extensions of the residence permit are possible, but the total duration of stay may not exceed 3 years for employees transferred within the company and 1 year for trainees.

Finally, after overcoming all the bureaucratic hurdles, Jason can start his traineeship in Austria. As he really likes it in Vienna, he even extends it by another 6 months, for which he is quickly and easily granted an extension of his residence permit by the authorities.

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

Written by service on . Posted in Blog.

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.