Tag Archive for: residence permit

Red-White-Red Card, Access to the Austrian Labor Market for Third-Country Nationals: Recent Amendments facilitate the award procedure for Employees and Employers

The Red-White-Red Card: residence title and employment permit

The Red-White-Red Card is an attractive residence title for qualified workers who can present a binding job offer from an Austrian company. The settlement authority and the labor market service check the qualifications on the basis of a catalog of criteria. For example, an applicant receives points for completed vocational training, a university degree, relevant work experience, and knowledge of German and English. The job offer and the future employer must also meet certain criteria (minimum salary, qualified and training-adequate position in the company, etc.).

Requirement: professional qualifications of the employee

The qualifications of the employee are evaluated according to a point scheme. If a worker achieves a sufficient number of points according to this points scheme, he or she can obtain a red-white card (residence title and employment permit). The prerequisite is a corresponding job offer from an Austrian employer.

The applicable points scheme for the award of a Red-White-Red Card is explained in detail at www.migration.gv.at. Although the criteria for the award of points are clearly and comprehensively regulated in the Foreign Employment Act (AuslBG), questions of interpretation repeatedly arise in administrative practice. For example, it is not always clear which professional education or training is qualified as “relevant to the field of employment” by the Austrian Labour Market Service (AMS). Good preparation makes it easier for the immigration offices and the Austrian Labour Market Service (AMS) to reach a decision quickly in favor of the applicant (skilled worker or company/future employer).

In the recent past, the Austrian legislator has repeatedly made adjustments to make the Red-White-Red Card more attractive for both employees and employers. For example, with the amendment to the Austrian Foreign Employment Act, Federal Gazette I 106/2022, the Austrian legislator created new, simplified framework conditions for the Red-White-Red Card, in particular a more favorable points system for skilled workers in shortage occupations.

Already two amendments of the rules concerning the Red-White-Red Card in 2023

 The amendment to the Austrian Foreign Labour Act (AuslBG), Federal Law Gazette I 43/2022, which has been in force since 21 April 2023, regulates access to the labor market for Ukrainian refugees who have a temporary right of residence in Austria on the basis of the Decree on displaced persons (Federal Law Gazette II 92/2022). It also provides for easier access to the Red-White-Red Card. Above all, more points are awarded in individual selection criteria (e.g. language, professional experience) than before. With the amendment, the legislator wants to counteract the shortage of skilled workers. The legislator has relaxed the criteria for issuing the Red-White-Red Card in order to facilitate access to the Austrian labor market for skilled workers from abroad. The parliamentary materials provide information on the legislator’s objectives and motives. The motive report is available online on the website of the Austrian Parliament (Link) and can be used as an argumentation aid, for example, in questions of interpretation.

Easier requirements since April 2023: new points scheme, consideration of English, French, Spanish, Bosnian/Croatian/Serbian skills

Since the last amendment, points are awarded not only for German and English language skills, but also for language skills in the French, Spanish and Bosnian/Croatian/Serbian languages. This facilitates labor market access for persons who have acquired language certificates or completed training in these languages.

Procedural simplifications since July 2023

Until the last amendment to the Act on the Employment of Foreign Nationals (AuslBG), BGBl I 84/2023, a positive decision by the Regional Office of the Foreign Labour Market Service (AMS) was required for admission as a key worker and thus posed a procedural prerequisite for the “Red-White-Red Card”.

The Constitutional Court overturned this regulation as questionable under the rule of law (VfGH 14.12.2021, G 232/2021-14). The legislator therefore had to amend the regulation within the period granted by the Constitutional Court.

Since this amendment, which entered into force on July 20, 2023, a key worker permit can also be issued if

  • the employment of the foreigner is necessary for particularly important reasons, in particular to preserve jobs of domestic employees or as a demonstrably qualified worker in a shortage occupation, or
  • public or supra-company macroeconomic interests require the employment of the foreigner.

This gives both the immigration offices and the administrative courts the option of admitting an employee as a key worker in the event of a negative decision by the Regional Office of the Austrian Labour Market Service.

The aim of these measures is to make it easier for qualified applicants to achieve the required points and to comply with procedural law, thus facilitating access to the Austrian labor market.

The changes are welcome for qualified professionals wishing to settle in Austria, for third-country nationals wishing to work in Austria and for Austrian companies.

We have already successfully assisted numerous clients in obtaining a Red-White-Red Card under the new legal situation.

If you need support, advice and representation in a procedure to obtain a Red-White-Red Card, we look forward to hearing from you!

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!

Residence Permit „Art 50 EUV“

The United Kingdom’s withdrawal from the European Union (known as “BREXIT”) and thus also from the EU’s internal market and customs union brings with it numerous innovations. As a result, the right of residence for British nationals and their family members has been largely changed. As of 1st January 2021, the United Kingdom is considered a third country from the perspective of the EU. The Austrian legislator has therefore created a separate residence permit (“Residence Permit Art 50 TEU”) for British citizens and their family members residing in Austria (see amendment to the Austrian Residence and Settlement Act, Federal Gazette I 56/2018.

The status of British citizens and their (close) family members is ruled by the so called „Brexit-Implementation-Regulation“ published by the Austrian Minister of Interior, Federal Gazette II 604/2020.

British citizens and their (close) family members from third countries may now apply for a „residence permit according to Art 50 Treaty of the European Union“.

This residence permit is intended to ensure that British citizens and their close relatives have the opportunity to live, work and study in Austria.

The requirements for obtaining this residence permit – as has already been the case for EU citizens – are the following:

  • gainful employment or sufficient financial means to finance a stay in Austria for oneself and one’s family members without depending on social welfare benefits or public allowances, as well as
  • comprehensive health insurance covering all possible risks in Austria.

German language skills are not a required for the application for the residence title “Article 50 EUV”.

Since January 2021, the application is possible until the end of December 2021. Thus, there is a sufficient time window for the application. The residence permit “Article 50 EUV” is issued in credit card format and is generally valid for 5 years. Of course, the acquisition of a permanent right of residence is still possible. Persons who have already acquired a permanent right of residence in Austria are granted the residence title “Article 50 EUV” for 10 years.

An initial application has to be made in person at the competent authority. An application with a valid residence permit in Austria presently (due to COVID19) has to be submitted via mail. In Vienna, the application has to be submitted to the Municipal Department 35 (MA35). The personal application is to ensure that the identity of the respective person is guaranteed.

Due to the current COVID19 restrictions, appointments with the immigration office must be reserved online.

As experts in immigration law, we have assisted many clients in obtaining residence permits according to Art 50 TEU.
Feel free to contact us if you would like us to assist you with your “Article 50” residence permit application.

Brexit: Consequences of the Withdrawal Agreement

Brexit: Consequences of the Withdrawal Agreement for the residence permits of UK citizens residing in Austria

Since 31.01.2020 the United Kingdom is no longer a member of the European Union. The United Kingdom and the European Union finally reached a Withdrawal Agreement that was ratified by the competent bodies, the British and the European Parliament (Link).

The „no-deal“ scenario was not realized.

The amendments of the Austrian Residence and Settlement Act („NAG“) that had been passed to provide for a „no-deal BREXIT“ have become obsolete due to this Agreement. The Austrian legislator will have to respond to the new situation and pass another amendment, implementing the relevant provisions of the Withdrawal Agreement (Part I, Art 13 et seq).

With regards to residence of UK citizens in EU member states, the Withdrawal Agreement provides for a transitory period ending on 31 December 2020. UK citizens and their relatives (even from „third countries“) residing in a member state of the European Union before the end of the transitory period may continue to live and work in the respective member state.

For UK citizens and their close relatives (spouses, young children) who do not yet have a formal documentation of their residence status in Austria, it makes sense to obtain such a documentation of the right of residence in Austria under EU law (see Article 19 of the Withdrawal Agreement).

A change to a permanent right of residence is also possible without any problems even after the transitory period has ended (Art 15 of the Withdrawal Agreement).

Once the transitional period ends, citizens of the United Kingdom will be granted a period of six months to apply for a confirmation of their continued right of residence (Art 18 of the Withdrawal Agreement). Such an application will be possible until the end of June 2021. The previous residence authorities will be competent for these applications.

UK citizens and their close relatives with a right of residence or permanent residence are granted access to the member states’ labour markets, meaning that their employment does not require a work permit (Art 22 of the Withdrawal Agreement).

Even after the transitory period, access to the labour market will continue to be open to persons who are already working in Austria under Article 24 of the Withdrawal Agreement. The same logic applies to self-employed persons (Art 25 of the Withdrawal Agreement).

It is therefore advisable for British citizens who wish to continue to live and work in Austria to take advantage of the favourable transitional rules.

We are happy to support you in all necessary steps.

Please do not hesitate to contact our office or make an appointment for a consultation on our website or via the Internet to assess your/your families situation under the Withdrawal Agreement.

[source image: ©Pixabay]

Einreise Brexit

Traveling to Austria and the Schengen area: no-deal Brexit

Travellers who are citizens of the United Kingdom and wish to travel Austria and the EU have to consider some important points in case of a “no-deal”-Brexit.

The “free movement of persons”, one of the fundamental rights of citizens of EU member states, will no longer apply for British citizen in the likely event of a “no-deal” Brexit.

British citizens will have to meet the following requirements upon entry into the Schengen area (and therefore, upon visiting Austria):

  • procurement of a current and valid passport (the passport must be valid for at least 6 months at the time of entry and must not be older than 10 years),
  • traveller’s health insurance for healthcare.

Upon entering Austria, British citizens will be treated like other “third country nationals”, i.e. citizens from non-EU countries, facing screening at the borders. The border control may require British citizens to show their travel tickets and sufficient funds to finance their stay. Cash exceeding £10,000 and goods must be declared. The EU, EEA and Swiss-lines at airports will no longer be open to British citizens.

 

The United Kingdom/Great Britain will be added to the list of most favoured nations and will still be able to enter without a Schengen visa for a period of 90 days within 180 days. Technically, this privilege will granted by an amendment to Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Link).

However, entry and stay are limited to touristic purposes only. Business-related travels or stays for school or study will require a special visa for the respective purpose.

Please be aware that an overstay without a visa or residence permit may eventually result in administrative penalties, expulsion and a ban to enter the Schengen area. Therefore, British nationals who wish to enter the Schengen area and stay here are well advised to timely care for the requisite visa/residence permit.

 

In any event, we will gladly assist you with questions regarding visa regulations, entry requirements and restrictions as well as residence permits for British citizens after the “no-deal” Brexit has happened. Do not hesitate to contact us for detailed and in-depth information for your stay in Austria.

[source image: ©Pixabay]

Brexit_NoDeal

Austrian Residence for British citizens in the event of a “no-deal” – Brexit

The deadline for the Brexit (or even in a worst case scenario a “no-deal” – Brexit), January 31, 2020, is approaching unstoppably. After representatives of the EU and the United Kingdom have found an agreement on important points of contention in October, it still cannot be excluded that a so-called “no-deal” – Brexit will occur. In any event, a Brexit will have effects for the residence permits of British citizens residing or intending to move to Austria.

 

British citizens and their (non-EU) families face uncertain times if the UK leaves the European Union without a deal. Previously, they were able to legally stay, work or provide services in Austria because of freedom of movement under European Union Law.

The residence permits were granted according to the Directive 2004/138/EC (Link) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member states.

In Austria, British citizens were granted the residence permit “Anmeldebescheinigung”, their close relatives without British/EC-citizenship “Aufenthaltskarte”.

For the possible event of a “no-deal”-Brexit, Austrian lawmakers have taken precautions. In order to compensate for the loss of the EU residence permit, two special regulations were created.

  • For citizens of the United Kingdom living in Austria for less than 5 years, it is possible to obtain a residence title “Red-White-Red-Card plus” in accordance with the Austrian Residence and Settlement Act (“Niederlassungs- und Aufenthaltsgesetz”, short: “NAG”). This will make it possible to continue their legal stay and work in Austria. If the application is submitted within 6 months after the no-deal Brexit, the applicant is not obliged to proof German language skills. Most other residence titles according to the NAG require a proof of at least basic German language skills.
  • For British citizens who have been legally staying in Austria for longer than 5 years at the time of the no-deal Brexit, there is the possibility to obtain an unlimited residence title “Permanent Residence – EU” (“Daueraufenthalt-EU”), if the general requirements for a residence permit are met by the applicant.

In both cases, applicants who submit their application within 6 months after Brexit do not have to prove specific german language skills. This is an enormous advantage compared to the requirements for a residence permit by (other) third-country nationals.

We recommend British citizens with ties to Autria to seize this opportunity and apply for a residence permit under the preferential requirements foreseen in the Austrian Residence and Settlement Act.

We have been assisting British citizens with questions about their residence permit. Please do not hesitate to contact our office in time to get further information on the consequences of a no-deal Brexit and which steps have to be taken in order to legally stay or remain in Austria.

 

Please contact us if you wish us to advise you on the legal requirements for a residence permit for British citizens in the event of a no-deal Brexit. Contact us for an appointment or specific advice and representation at the Austrian immigration authorities.

 

[source image: ©Pixabay]