Right to respect for private and family life

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The right to respect for private and family life is one of the fundamental rights as laid down in the European Convention on Human Rights of 1950 (Article 8 ECHR).

Basics

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
0(2) Intervention by a public authority in the exercise of this right is only permitted insofar as this interference is provided for by law and represents a measure that, in a democratic society, is beneficial to national security, public peace and order, the economic well-being of the country the defense of order and the prevention of criminal acts, the protection of health and morality or the protection of the rights and freedoms of others is necessary. "

- Art. 8 ECHR as amended in  1998

It was also repeated in Article 7 of the Charter of Fundamental Rights of the European Union  (GRCh) of 2000 as part of the freedoms (Title II): "Everyone has the right to respect for their private and family life , their home and their communications."

This article guarantees in particular the private life (privacy) of the individual including a basic right to informational self-determination (protection of personal data), family life , the inviolability of the home ( peace of mind ) and the secrecy of letters and telecommunications . These areas of protection are part of general personal rights .

The rights include protection against interference by others as well as by the state . The second paragraph refers to this by specifically formulating exceptions:

This passage weighs rights of freedom against rights of interference and represents a legal reservation.

National

Austria

The central statements of personal freedom , domiciliary rights and the confidentiality of letters were already in Articles 8 to 10 of the Basic State Law on the general rights of citizens for the kingdoms and states represented in the Reichsrat  (StGG), RGBl. No. 142/1867 . This law was incorporated into the legal status of the Republic of Austria, which was founded in 1918, and is part of the Austrian constitution . In 1973 the StGG was supplemented by a provision for the protection of telecommunications secrecy (Art. 10a).

The European Convention on Human Rights, ratified in Austria in 1958, also has constitutional status in accordance with the Federal Constitutional Act.

Right of residence

Art. 8 ECHR is of major importance in the aliens law matter, in the settlement and residence law and in the Asylum Act. The legislature has provided that when assessing an application under the NAG and AsylG, a weighing must be made within the meaning of Art. 8 ECHR.

Settlement and Residence Act - NAG

Among other things, the Settlement and Residence Act - NAG in Austria regulates the residence of third-country nationals . The Act provides, inter alia, that the stay of foreigners is not a financial burden on the local authority must lead this who applicants a proof set out on their income levels. If the foreigner does not succeed in submitting sufficient evidence, the settlement authorities have to weigh up in accordance with Art. 8 ECHR . This consideration is to be understood as the comparison of public and private interests. According to § 11 Para. 3 NAG it is provided that an examination within the meaning of Art. 8 ECHR must be carried out taking into account the following catalog of criteria :

1. the type and duration of the previous stay and the question of whether the previous stay of the third-country national was illegal;
2. the actual existence of family life;
3. the need to protect private life;
4th the degree of integration;
5. the ties to the home country of the third-country national;
6th the integrity of the criminal court;
7th Violations of public order, especially in the area of ​​asylum, aliens police and immigration law;
8th. the question of whether the private and family life of the third-country national came about at a time when those involved were aware of their uncertain residence status;
9. the question of whether the length of the alien's previous stay in the authorities is justified.

If it turns out that private and family life is so worthy of protection that the refusal or rejection of the coveted residence permit would result in the applicant having to leave the federal territory and thus interfere with private and family life, this must be granted . The only requirement here is that the so-called special requirement of the residence permit must be met. For example, it would be impossible to issue a residence permit for family members from Austrians if there is no qualification as a member of an Austrian.

Asylum Act - AsylG

There is no special requirement in the Asylum Act for the issuance of a residence permit in accordance with Art. 8 ECHR . Here it is really only necessary that the examination of the private and family life worth protecting must lead to success.

Web links

Individual evidence

  1. ↑ a b c privacy and family life. Menschenrechtskonvention.eu, accessed December 23, 2015.
  2. ↑ Entry on the protection of personal freedom in the Austria Forum  (in the AEIOU Austria Lexicon )
  3. ↑ a b Art. 8 European Convention on Human Rights . Announced in Federal Law Gazette No. 210/1958 (as amended online, ris.bka ).
  4. ↑ Legal text. Retrieved June 17, 2017 .
  5. ↑ Legal text. Retrieved June 17, 2017 .
  6. ↑ Legal text. Retrieved June 17, 2017 .
  7. ↑ Legal text. Retrieved June 17, 2017 .
  8. ↑ Legal text. Retrieved June 17, 2017 .
  9. ^ Text of the law: Residence permit for reasons of Art. 8 ECHR. Retrieved June 17, 2017 .