Residence status (Austria)
The residence status represents the authorization of a foreign person to reside in Germany. It can be structured very differently and is usually justified by the legally regulated acquisition of a residence permit. The residence status is decisive for how long a foreign visitor or immigrant can legally stay in the country and what restrictions or requirements he may be subject to. If the laws of the host country are violated, foreign nationals may be expelled and lose their residence status. ForeignersThose who are illegally staying in the country without the corresponding status are liable to prosecution in many countries and can be deported if necessary . In the case of long-term unauthorized residence, one speaks of illegal immigration .
Legal basis
The residence status of foreigners is regulated in the Settlement and Residence Act (NAG).
Extract from the NAG;
(1) This federal law regulates the issuing, refusal and withdrawal of residence permits from aliens who stay or want to stay in the federal territory for more than six months, as well as the documentation of the right of residence under Community law.
(2) This federal law does not apply to foreigners who
- are entitled to stay in accordance with the Asylum Act 2005 (AsylG 2005), Federal Law Gazette I No. 100, or under previous asylum law provisions or enjoy de facto protection from deportation or, after submitting a follow-up application (Section 2 (1) No. 28 AsylG 2005), unless this federal act provides otherwise;
- according to § 95 of the Aliens Police Act 2005 (FPG), Federal Law Gazette I No. 100, have a photo ID for holders of privileges and immunities or
- are entitled to pursue a merely temporary gainful employment according to § 24 FPG.
residence permit
The Settlement and Residence Act distinguishes between four residence permits , namely
- Residence permit
- Residence permit
- family member
- Permanent residence
All residence permits are issued in the form of a check card.
Initial applications for a residence permit must be submitted in person before entering Austria from abroad. The reason for the stay must be stated in the application and specified precisely. Applications that result in different purposes of residence, the simultaneous submission of several applications and further applications are not permitted.
Evidence of the necessary authorizations must be provided.
Special cases
In Austria the term of the residence permit is not legally defined. From the list of possible residence permits in Section 8 NAG, however, it follows that residence permits are only those documents that are issued to third-country nationals . Residence documents for EEA citizens and their family members fall under the documentation of the Union law of residence law ( § 9 NAG).
Residence permits are issued as:
- Red-White-Red Card , whichentitles the holderto temporary settlement and to pursue gainful employment for which a written notification or an expert opinion has been issued in accordance with Section 12d or Section 24 of the AliensEmploymentAct ( Section 41 NAG),
- Red-White-Red Card plus , which entitles the holder to temporary settlement and to exercise self-employed and dependent employment in accordance with Section 17 of the Aliens' Employment Act ( Section 41a NAG),
- EU Blue Card , whichentitles the holderto temporary settlement and to pursue gainful employment for which a written notification in accordance with Section 12d Section 2 No. 4 of the AliensEmploymentAct has been issued ( Section 42 NAG),
- Settlement permit , which entitles the holder to settle for a limited period of time and to pursue self-employed and salaried employment for which a corresponding authorization under the Aliens Employment Act applies ( Section 43 NAG),
- Settlement permit - with the exception of gainful employment , which entitles the holder to temporary settlement without exercising gainful employment ( Section 44 NAG),
- Settlement permit - relatives who are entitled to temporary settlement without taking up gainful employment; The exercise of gainful employment is only permitted on the basis of a subsequent change in purpose that is subject to a quota ( Section 47 NAG),
- Permanent residence - EU for the documentation of the unlimited right of settlement, without prejudice to the period of validity of the document ( § 45 NAG),
-
Residence permit for a temporary limited stay in the federal territory for the following purposes of residence (is stated in the residence permit) is issued (see § 2 Paragraph 2 NAG-DV)
- Rotary worker ( § 58 NAG),
- Rotational worker ( § 59 NAG)
- Self-employed ( § 60 NAG),
- Artist ( § 61 NAG),
- Special cases of paid employment ( Section 62 NAG),
- Pupils ( § 63 NAG),
- Student ( § 64 NAG),
- Social service provider ( § 66 NAG),
- Researcher ( § 67 NAG),
- Family community ( § 69 NAG),
- Section 69a NAG ( Section 69a NAG).
Since January 1, 2006, residence permits have been issued according to the uniform pattern in ID-1 card format , previously in sticker form ( § 1 NAG-DV).
Continuation of residence and settlement permits
In accordance with Section 11 of the NAG-DV (Settlement and Residence Act Implementation Ordinance), the legislature has stipulated which residence permits are still valid in Austria under previous residence laws, in which form or as which residence permits.
According to Section 11 (1) of the NAG-DV, the following authorizations according to the Aliens Police Act 2005 (FPG), Federal Law Gazette I No. 100 continue to apply as follows:
| Residence and settlement permits according to the Aliens Act 1997 (FrG) | Residence and settlement authorization according to the Settlement and Residence Act (NAG) and authorizations according to the Aliens Police Act 2005 (FPG) |
| A. Settlement permits under the FrG | |
| 1. Settlement permit for any purpose of residence, Section 13 Paragraph 2 FrG | "Settlement permit - limited" |
| 2. Settlement permit of beneficiary third country - EEA, § 47 Abs. 3 FrG | Documentation "permanent residence card" |
| 3. Settlement permit of beneficiary third country - Ö, § 49 Abs. 1 FrG | a) Spouses and children up to 18 years of age: residence permit "family member"
b) Children over 18 years of age: "Settlement permit - unlimited" c) Relatives in the ascending line with uninterrupted access to the labor market: "Settlement permit - restricted" d) Relatives in the ascending line without proper access to the labor market: "Settlement permit - relatives" e) for matters of freedom of movement according to § 57 NAG: documentation "permanent residence card" |
| 4. Self-employed settlement permit, Section 30 (2) FrG | "Settlement permit - limited" |
| 5. Family community residence permit, Section 20 (1) FrG | "Settlement permit - limited" |
| 6. Private settlement permit - subject to a quota, Section 18 (4) FrG | "Settlement permit - excluding gainful employment" |
| 7. Settlement permit for media employees, Section 19 Paragraph 2 No. 1 FrG | "Residence permit - special cases of gainful employment" |
| 8. Artist residence permit, Section 19, Paragraph 2, Item 2 FrG | "Residence permit - artist" |
| 9. Settlement permit for employed persons excluded from the AuslBG, § 19 Abs. 2 Z 3 FrG | "Residence permit - special cases of gainful employment" |
| 10. Settlement permit for beneficiary third country - CH, § 48a FrG | For family members of third-country nationals of Swiss citizens entitled to free movement: Documentation "permanent residence card" |
| 11. Settlement permit key worker - self-employed, § 18 Abs. 1 Z 1 FrG | "Settlement permit - key worker" |
| 12. Settlement permit key worker - employed, § 18 Abs. 1 Z 1 FrG | "Settlement permit - key worker" |
| 13. Settlement permit for family groups with self-employed key workers, Section 18 (1) no. 1 FrG | "Settlement permit - limited" |
| 14. Settlement permit for a family community with dependent key workers, Section 18 (1) no. 1 FrG | "Settlement permit - limited" |
| 15. Private settlement permit - quota-free, Section 19 (5) FrG | a) for family members of beneficiaries under the FrG: "Settlement Permit - Relatives"
b) In the case of family members of artists, media employees and employed persons exempted from the AuslBG: "Residence permit - family community" |
| 16. Settlement permit for key workers - Agreement, § 1 Paragraph 5 AuslBG | not applicable |
| B. Residence permits according to the FrG | |
| 1. Residence permit for training, § 7 Abs. 4 Z 1 FrG | a) “Residence permit - pupil” or
b) "Residence permit - student" |
| 2. Residence permit for family community with training, Section 7, Paragraph 4, Item 3 FrG | "Residence permit - family community" |
| 3. Residence permit for rotation, § 7 Abs. 4 Z 2 FrG | "Residence permit - rotation worker" |
| 4. Residence permit for a family community with rotation force, § 7 Paragraph 4 Z 3 FrG | "Residence permit - family community" |
| 5. Voluntary residence permit, Section 12 (2) FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 6. Residence permit for cross-border commuters, Section 1 (11) FrG | not applicable |
| 7. Commuter residence permit, Sections 1 (12), 113 (3) FrG | not applicable |
| 8. Residence permit for limited employment, § 12 Abs. 2 FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 9. Residence permit for company posted workers, Section 12 (2) FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 10. Self-employed residence permit, § 7 Paragraph 4 Z 4 FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 11. Residence permit Residence for humanitarian reasons, Section 10 Paragraph 4 FrG | "Residence permit - humanitarian reasons" |
| 12. Short-term residence permit for self-employed art practitioners, Section 90 Paragraph 4 FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 13. Short-term residence permit for employed art practitioners, Section 12 (2) FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 14. Residence permit for employed persons excluded from the AuslBG, § 1 Abs. 2 and 4 AuslBG | Residence travel visa (visa D + C, § 24 FPG) |
| 15. Residence permit intern, § 12 Abs. 2 FrG | Residence travel visa (visa D + C, § 24 FPG) |
| 16. Residence permit without a permit according to AuslBG, § 18 Abs. 2 AuslBG | Residence travel visa (visa D + C, § 24 FPG) |
| 17. Commuter Agreement, Section 1 Paragraph 5 AuslBG | not applicable |
| C. Proof of establishment | |
| Proof of establishment | a) For family members of reunifying persons permanently residing in Austria: Residence permit "permanent residence - family member"
b) for all others: Residence permit "permanent residence - EG" c) for matters of freedom of movement according to § 57 NAG: documentation "permanent residence card" |
According to Section 11 (2) NAG-DV, the following residence and settlement permits continue to apply as follows:
| Residence and settlement permits according to the Aliens Act 1997 (FrG) in the version before the 2002 amendment to the FrG, according to the Aliens Act, the Residence Act and the Passport Act 1969 | Residence and settlement authorization according to the Settlement and Residence Act (NAG) and authorizations according to the Aliens Police Act 2005 (FPG) |
| A. Aliens Act 1997 (FrG) in the legal situation before 1.1.2003 | |
| 1. Settlement permit for any purpose of residence | "Settlement permit - limited" |
| 2. Settlement permit for family communities with EEA citizens | Documentation "permanent residence card" |
| 3. Settlement permit for family community with Austrians | a) Spouses and children up to 18 years of age: residence permit "family member"
b) Children over 18 years of age: "Settlement permit - unlimited" c) Relatives in the ascending line with uninterrupted access to the labor market: "Settlement permit - restricted" d) Relatives in the ascending line without proper access to the labor market: "Settlement permit - relatives" e) In cases of freedom of movement according to § 57 NAG: Documentation "permanent residence card" |
| 4. Settlement permit for any purpose of residence except for gainful employment | "Settlement permit - limited" |
| 5. Family community residence permit - with the exception of gainful employment | "Settlement permit - limited" |
| 6. Family community residence permit - excluding gainful employment | "Settlement permit - limited" |
| 7. Private residence permit | "Settlement permit - excluding gainful employment" |
| 8. Settlement permit for media employees of a foreign information medium | "Residence permit - special cases of gainful employment" |
| 9. Artist residence permit | "Residence permit - artist" |
| 10. Settlement permit from the AuslBG with the exception of gainful employment | "Residence permit - special cases of gainful employment" |
| 11. Student residence permit | "Residence permit - student" |
| 12. Residence permit for family community with student | "Residence permit - family community" |
| 13. Student residence permit | "Residence permit - pupil" |
| 14. Residence permit for family community with pupil | "Residence permit - family community" |
| 15. Rotational residence permit | "Residence permit - rotation worker" |
| 16. Residence permit for family community with rotation force | "Residence permit - family community" |
| 17. Volunteer residence permit | Residence travel visa (visa D + C, § 24 FPG) |
| 18. Residence permit for cross-border commuters | not applicable |
| 19. Commuter residence permit | not applicable |
| 20. Residence permit for seasonal workers | Residence travel visa (visa D + C, § 24 FPG) |
| 21. Residence permit for company dispatchers | a) up to six months: residence travel visa (visa D + C, § 24 FPG)
b) from six months: "Residence permit - company posted worker" |
| 22. Residence permit for self-employed persons without a settlement | a) up to six months: residence travel visa (visa D + C, § 24 FPG)
b) from six months: "Residence permit - self-employed" |
| 23. Residence permit Residence for humanitarian reasons | "Residence permit - humanitarian reasons" |
| 24. Artist residence permit | Residence travel visa (visa D + C, § 24 FPG) |
| 25. Residence permit for gainful employment not covered by the AuslBG | Residence travel visa (visa D + C, § 24 FPG) |
| 26. Intern | Residence travel visa (visa D + C, § 24 FPG) |
| B. Residence Act (AufG), Federal Law Gazette No. 466/1992, legal situation before 1.1.1998 | |
| Residence permits | "Settlement permit - unrestricted" |
| C. Aliens Act (FrG), Federal Law Gazette No. 838/1992, legal situation before 1.1.1998 | |
| ordinary visas according to Section 6 (1) no | "Settlement permit - unrestricted" |
| D. Passport Act 1969, Federal Law Gazette No. 422 | |
| Visa according to Section 24 Passport Act 1969 | "Settlement permit - unrestricted" |
Residence permits issued for an unlimited period
Residence permits that were issued for an unlimited period before the Settlement and Residence Act came into force are valid as residence and settlement permits according to lit. AZ 1, 4, 5, 6 and 7 as well as according to lit. B, C and D continue as residence permit "permanent residence - EG".
The settlement permit family community with Austrians according to lit. AZ 3 apply to
- Spouses and children up to 18 years of age as "permanent residence - family member"
- Children over 18 years and for relatives in the ascending line as a residence permit " permanent residence - EG "
further.
All of these residence permits are now valid as permanent EU residence in accordance with Section 81 (29) NAG . In addition, the legislature has stipulated in this provision that holders of the permanent residence permit - EC from another member state are now still valid as permanent residence - EU .
Irrelevance of the unlimited right of residence
According to § 10 NAG, the residence title permanent residence - EU is invalid for one of the following reasons:
- the foreigner becomes an Austrian, EEA citizen or Swiss citizen
- the alien is granted the residence permit “permanent residence - EU” from another member state
- the foreigner has not been in Austria for six years but has been settled within the EEA area
Expiry of the unlimited right of residence
The permanent residence permit - EU expires if the alien stays outside the EEA area for more than twelve consecutive months . For reasons that are particularly worthy of consideration, such as a serious illness, the fulfillment of a social obligation or the performance of a service comparable to general military or community service, the alien can stay outside the EEA area for up to 24 months if he has notified the authority in advance Has. If the alien has a legitimate interest, the authorities must, upon application, determine that the residence permit has not expired. The proof of residence in the EEA territory is up to the stranger.
Other loss of the unlimited right of residence
The elimination of the unlimited right of residence can also be accomplished by resuming the procedure with subsequent rejection of the previous applications or by issuing a measure to terminate residence by the Federal Office for Immigration and Asylum - BFA . Such measures are in devastating criminal convictions or when entering into a residence marriage imposed or stay or residence Partnership adoption. It is interesting that a person can lose all of these acquired rights indefinitely (because of deception in the administrative procedure ) regardless of whether they have been in Austria for 25 years or longer or have already received citizenship .
In both cases, a possible connection for a possible acquisition of a residence permit after the loss is no longer possible!
Acquisition of a residence permit after losing the unlimited right of residence
Third-country nationals can be granted the "Red-White-Red - Card plus" residence permit in accordance with Section 41a, Paragraph 6 of the NAG if they meet the general requirements for issuance and have a permanent residence permit that has expired or become invalid.
The Settlement and Residence Act provides in accordance with § 45 para. 9 to obtain a substantial relief for these individuals a new permanent residence right after only 30 months, and is not the same after 5 more years of a new permanent can stay right be requested.
Residence documents for persons entitled to free movement and their relatives
Residence documents for persons entitled to free movement, including:
- Residence card for relatives of an EEA citizen for third-country nationals who are relatives of EEA citizens who are entitled to reside under Community law, to document the right of residence under Community law for more than three months ( Section 54 NAG)
- Permanent residence card for third-country nationals who are relatives of an EEA citizen and who have acquired the right of permanent residence, for documenting the right to permanent residence under Community law ( Section 54a NAG)
are also issued in ID-1 card format, but differ in terms of color and graphics from the requirements of Regulation (EC) No. 1030/2002.
Confirmation of the application for an extension of the residence permit
Confirmations of the application for an extension of the residence permit ( § 24 Paragraph 1 NAG) have sticker format, but are designed differently. These confirmations can only be issued to foreigners who have submitted an application for a residence permit in accordance with Section 24 NAG. Since members of the EEA, EU or Swiss citizens who are entitled to free movement do not have a residence permit, but documentation of the stay under Union law, such a confirmation is not an option.
Residence permit according to the Asylum Act
The Asylum Act knows the following residence permits:
- Residence permit plus
- Residence permit
- Residence permit special protection
The residence permit "Residence Permit plus" enables you to pursue self-employed and paid employment immediately upon issuance of the residence permit . The residence permits "Residence Permit" and "Residence Permit Special Protection", on the other hand, only entitle the holder to take up self-employed and paid employment with a corresponding permit from the Public Employment Service (AMS) . All of these residence permits are issued for a period of 12 months. The residence permits "residence permit plus" and "residence permit" cannot be extended! The legislator has created the possibility for these two residence permits to switch to the NAG regime. These groups of people would then have to be granted the residence permit "Red-White-Red - Card plus" if they have fulfilled module 1 of the integration agreement or are at least marginally gainfully employed at the time of the decision . If this requirement is not met, the residence permit "settlement permit" must be issued. Both residence permits, as they are those under the Settlement and Residence Act, are to be processed by the state authorities and, if necessary, in a second instance by the state administrative courts.
Origin-specific cases
Residence status of EEA citizens and Swiss
The right to stay for EEA citizens and Swiss or their family members (including those of Austrians who are entitled to free movement) is regulated in Sections 51 to 57 of the Settlement and Residence Act and the entry requirements in Sections 84 to 86 of the Aliens Police Act. These parts are essentially to be seen as an implementation of Directive 2004/38 / EC or the bilateral agreements with Switzerland .
Residence status of Turkish nationals
On the basis of the Association Agreement between the European Economic Community and Turkey, Turkish workers and their family members have a derived right of residence under certain conditions. For details → main article Decision 1/80 of the Association Council EEC-Turkey .
Implementation in national law
To date, Austria has failed to create a corresponding provision for this group of people in the Settlement and Residence Act . This is justified by the fact that, according to the legal opinion of the Ministry of the Interior, a circular sent to all settlement authorities is sufficient, which contains the mandate not to apply to Turkish citizens all provisions that result in a worse position compared to the time of Austria 's accession to the EU . The European Commission does not consider this to be sufficient and has therefore initiated infringement proceedings against Austria .
See also
Web links
- Establishment and residence , bmi.gv.at - provisions of Austrian law
Individual evidence
- ↑ Federal Ministry of the Interior: settlement and residence . Accessed February 11, 2011
- ↑ Update of the list of residence permits in accordance with Article 2 (15) of Regulation (EC) No. 562/2006 (PDF) , OJ. C 201 of 8 July 2011, pp. 1-54, PDF doc. 1.03 MB, accessed February 13, 2013; however, some of the information does not correspond to the currently valid law.
- ↑ Parliament Austria: Federal law amending the BFA Establishment Act, the BFA Procedural Act, the Asylum Act 2005, the Aliens Police Act 2005, the Settlement and Residence Act and the Border Control Act as well as the Basic Services Act - Federal 2005 (FNG Adaptation Act). Among other things, this federal law changed the name of this residence permit. April 17, 2013. Retrieved June 15, 2017 .
- ↑ Continuation of residence and settlement permits. Retrieved June 15, 2017 .
- ↑ Residence permits issued for an unlimited period (Section 11, Paragraph 3 of the NAG-DV). Retrieved June 27, 2017 .
- ^ Period of validity of residence permits (§20 NAG). Retrieved June 28, 2017 .
- ↑ Finding : Imposition of a residence ban because of entering into a residence marriage - VwGH decides that this is possible and factually justified. Retrieved June 28, 2017 .
- ^ Residence permit "Red-White-Red - Card plus" (§ 41a NAG). Retrieved June 28, 2017 .
- ↑ Confirmation according to § 24 Paragraph 1 NAG (without content). Retrieved June 15, 2017 .
- ↑ § 54 AsylG 2005 - Types and forms of residence permits. Retrieved June 15, 2017 .
- ↑ Section 54 (2) AsylG - types and form of residence permits. Retrieved June 15, 2017 .
- ↑ § 41a Paragraph 9 NAG - Third-country nationals residing in the federal territory must be granted a residence permit “Red-White-Red - Card plus” if they ... Accessed on June 15, 2017 .
- ↑ Section 43, Paragraph 3 of the NAG - Third-country nationals residing in the Federal Republic of Germany must be granted a residence permit “Settlement Permit” if they have been more than twelve months ... Retrieved on June 15, 2017 .
- ↑ Settlement and Residence Act
- ↑ Aliens Police Act 2005
- ↑ The Commission is bringing Austria to the Court of Justice of the European Union for failure to comply with the EU-Turkey Association Agreement. EU Commission, February 20, 2017, accessed on June 27, 2017 (German).
