Art 20 TFEU – Union citizens’ right to family reunification may also apply to Austrian citizens
In a recent decision we helped a family to legally lead their common family life in Austria. Through our support, we were able to obtain a right of residence for the mother of two Austrian citizens. The granted residence permit also provided for the mother’s access to the Austrian labor market. We are aware of the importance and scope of our advice and representation for the family life of our clients and their private and professional future in Austria. We are all the more pleased about the success!
“Family members” as defined by the Austrian Settlement and Residence Act (NAG) basically only spouses and minor children
Family reunification with access to the labor market in Austria is generally only accessible to the next of kin (spouses, minor children). Relatives who do not belong to this group (e.g. parents, children of full age) are in principle not legally entitled to family reunification or can at best only obtain a residence title without access to the labor market (“Settlement Permit – [Further] Relative”).
If there are valid reasons, e.g. on the basis of the fundamental right to protection of private and family life (Art 8 ECHR) or on the basis of the rights of EU citizens (Art 20 TFEU), the Administrative Court has – however only in extreme and exceptional cases – affirmed a claim to family reunification and access to the labor market also for distant relatives (e.g. VwGH 24.3.2022, Ra 2018/22/0093).
Vienna Administrative Court grants residence permit family member for mother of an adult Austrian reunifier
In complex appeal proceedings before the Administrative Court of Vienna, we successfully enforced a client’s claim for family reunification. The Administrative Court of Vienna announced the decision immediately following the court hearing on January 18, 2023 (VGW-151/080/9065/2022-25).
The special feature of the family reunification finally granted (issuance of the residence title “family member”) is that
- the sponsor is an adult Austrian citizen, and
- the reunifying mother has obtained a residence title “family member” entitling her to regular employment (and not merely a “Settlement Permit – [Further] Relative”, which categorically excludes gainful employment in Austria).
The Administrative Court of Vienna considered the special close relationship and the health-related dependence of the daughter on her mother as decisive for the right to family reunification.
It applied the case law of the Court of Justice of the European Union (ECJ) to an Austrian citizen, although there was no so-called cross-border constellation (“freedom of movement constellation”).
The case law of the Court of Justice of the European Union, which we cited in the appeal proceedings, convinced the Vienna Administrative Court: “If a Union citizen (in this case the reuniting daughter) would be forced to leave the territory of the European Union in the event of a refusal of a residence title, close family members with whom the Union citizen has a dependent relationship have a right of residence (and access to the labor market).” Cf. ECJ 8.5.2018, K.A. et al, C-82/16; in Austrian court decsion VwGH 25.7.2019, Ra 2019/22/0017; on the assessment of the dependency relationship in detail also VwGH 17.6.2019, Ra 2018/22/0195).
No official appeal by the settlement authority (MA35) or the Federal Ministry of the Interior (BMI)
In the first-instance proceedings before the settlement authority (MA35), the authority still resisted and did not share our legal position.
After the decision of the Administrative Court of Vienna, the official parties (immigration office, in Vienna: MA 35; BMI) did not file an official appeal against the decision of the Administrative Court of Vienna. The official parties have thus conclusively accepted the legal opinion of the Vienna Administrative Court. This is a precedent-setting case, which will also point the way for future decisions of the Administrative Court of Vienna.
Living/working in Austria with residence title family members possible
In the meantime, the immigration office (MA35) has granted the applicant, i.e. the mother of the Austrian citizen, the residence permit „Family Relative“ applied for. The family can now live together in Austria. With the residence permit „Family Relative“, the mother has obtained a right of residence that entitles her to settle and work in Austria without the requirement for a work permit.
We are pleased that we have helped a family to live together in Austria in this way. This decision strengthens the right to family reunification and unity, fundamental rights and the rights of EU citizens derived from the case law of the Court of Justice of the European Union. It is to be welcomed in view of the general reluctance of the immigration offices to apply the case law of the ECJ on family reunification.
You are welcome to contact us if you are seeking family reunification with relatives and dependents from third countries and would like to obtain a suitable residence title in Austria for relatives from countries outside the European Union!