Austria - 2012
Does the law provides for legalizing the situation of illegal immigrants in order to ensure their right to work and access to social protection and care?
- Code:
- RED62
- Key Area:
- Employment
- Strand(s):
- Equality
| Short Answer |
There are several international obligations or other legal provisions which may be applied to irregular migrants. |
| Qualitative Info |
There are several international obligations or other legal provisions which may be applied to irregular migrants. Austrian authorities are obliged, in a pending asylum procedure, aliens’ police procedure or upon request of an alien, to assess whether a return decision would permanently violate the right to private and family life (Art. 8 ECHR). The right to private life might become relevant for persons who have spent a long time in the host country, have developed “personal, social and economic ties strong enough for them to be regarded as sufficiently well integrated” and who lack comparable personal ties in other countries. However, under Art. 8 of the ECHR, it is not sufficient “to refrain from deporting the person concerned” – the host state “must also, by means of positive measures if necessary, afford him or her the opportunity to exercise the rights in question without interference.” Art. 8 does not guarantee “the right to a particular type of residence permit” – but must “allow[s] the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life.” Thus, if a violation of Art. 8 ECHR would be the result of a return decision, Austrian authorities have to declare a return decision permanently inadmissible (Sec. 10 Asylum Act 2005, Sec. 66 Aliens’ Police Act) and accord ex officio a settlement permit; depending on whether the integration agreement is fulfilled or not, a settlement permit with unrestricted access to the labour market or a settlement permit with restricted access to the labour market is granted. Outside of the scope of Art. 8 ECHR, persons with irregular residence in Austria can be granted a residence permit under Sec. 44 (4) Settlement and Residence Act (NAG) under certain circumstances: in cases which are besonders berücksichtigungswürdig [particularly worth considering], a quota-free Niederlassungsbewilligung beschränkt [settlement permit with restricted access to the labour market] can be granted if a third-country national has been residing in Austria continuously since 01.05.2004 and if he/she spent at least half of this period as a lawful resident (temporary residence right as an asylum seeker, for example). Authorities have to take into account the degree of integration, in particular the ability to sustain him-/herself, education and professional experience, employment, and knowledge of the German language. There exist also cases in which persons cannot be expelled and are merely tolerated on Austrian territory without being vested with a legal right of residence or status. Since persons who are merely tolerated do not have the legal right to stay in Austria, they do not have access to wage-earning employment (which requires a certain residence status). Thus, in the following, this category of persons is not further assessed – even though their status seems highly problematic from a human rights point of view: they are “forced” to stay in Austria while being barred from participating in the daily life of Austrian society. Sources: |
| Groups affected/interested | Migrants, Refugees, Asylum seekers |
| Type (R/D) | |
| Key socio-economic / Institutional Areas | Policing - law enforcement |
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