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.