Illegal in Austria. What now?
Illegal in Austria. What now?
Unfortunately, not all asylum and residence proceedings in Austria are positive.
Suddenly you are faced with a negative decision from the Federal Asylum Court (FAC) or Administrative Court (AC), and various questions come to mind:
… I have been in Austria for more than eight years, have never committed a crime, speak German, and still received a negative decision ?.
… .I have family here and everyone has a residence permit. Why didn't I get one? ...
... .. my roommate told me that the police were here yesterday looking for me? ...
… .Am I going to be put in detention right now? ...
…. Do I still have opportunities in Austria? ...
If you have already asked yourself such questions, we advise you to immediately seek out a lawyer, receive advice and, together with him, take the next steps.
Even if you have already received a negative decision and are now illegal, it does not automatically mean that you are deported immediately.
There are several ways to receive a residence permit
The following possibilities to obtain a residence permit exist:
1. Appeal to the High Courts (Supreme Court (SC)/Supreme Administrative Court (SAC)).
Just because you have received a negative decision from the Federal Asylum Court or Administrative Court, does not mean that you don't have any possibility to appeal.
Please note that the appeal has to be lodged within six weeks of service
of the decision by the FAC/AC.
Example: a Nigerian, who has been living in Austria for the last 10 years, receives a negative decision from the FAC in March 2019, as his asylum account lacked credibility, he had family in Nigeria, and he was not substantially integrated in Austria. He lodges an appeal to the Supreme Court on the grounds that his integration was not fully considered, he also did not have any criminal convictions, and as he had already stated in his proceeding, he had no contact to his family in Nigeria.
Consequently the Supreme Court annulled the decision of the FAC und sent the case back to the court, which subsequently granted him a humanitarian visa .
2. Humanitarian Residence Permit. There are two different versions:
A. Version 1- Residence permit due to extenuating circumstances
i. Requirements
-Minimum of five years uninterrupted residence in Austria,- half of the time period, legally residing, i.e., in an asylum/residence proceeding.
-Legal work (with AMS Permit) or a letter of guarantee
Please note: The minimum has reach the minor legal threshold.
- A2 German Certificate from ÖIF including Integration Exam
Example: An Iraqi lodges an asylum application in 2013 und receives a negative decision from the FAC in September 2018. Consequently he attends a German course to get a B1 German certificate. Moreover he has a friend in Austria who can give him a letter of guarantee. Subsequently he submits an application for a humanitarian residence permit in January 2019 and received his residence permit in September 2019, as he met all the requirements.
B. Version 2- Residence permit due to extenuating circumstances
i. Requirements:
- Reasons present that speak for the maintenance of personal- and family life
-Family member of a residence permit holder
-Grave illness that cannot be treated in the country of origin
-Long stay in Austria-social connections in Austria (Family, friends)
-Integration measures (i.e.. voluntary work, member of organizations )
-Fixed income (either legal work-with AMS permit-, letter of guarantee or future work contract.
Please note: The minimum has reach the minor legal threshold.
- A2 German Certificate from ÖIF including Integration Exam
Example: An Armenian lodges an asylum application in 2014, which is rejected in a decision of the FAC in 2017, as his asylum account was not credible, he had family in Armenia, and was also not integrated in Austria. Consequently he married an Austrian citizen in March 2018 and in September 2018 became the father of an Austrian child. Subsequently in February 2019, he submitted an application for a humanitarian residence permit as a family member of an Austria citizen, which was awarded to him in June 2019.
3. Subsequent asylum application
Here it is to be noted that, regarding the first asylum proceeding, new asylum grounds have to be presented, or else the second application, will be dismissed promptly due to a final decision.
Also, due to prior experience, if no new reasons are given, the de facto protection against deportation (the protection against deportation until a final decision has been made), can be revoked, before the FAO makes a decision. That means that you can be deported before the FAO issues a decision. Therefore there is often a degree of uncertainty in second asylum proceedings.
Example: An Afghan lodges an aslum application which is rejected by the FAC's decision of April 2019, as he had family in Afghanistan and could find refuge in Kabul, Herat, or Mazar-e-eSharif. Subsequently he makes a new asylum application in August 2019 on the grounds that his family moved to Iran in the meantime, he had no family members left in Afghanistan. Therefeore, he would be subjected to inhumane treatment upon return to Afghanistan.
I have received a negative decision from the Federal Asylum Court. Can I apply for a residence at the MA35?
The MA35 is reponsible for people that are legally residing in Austria.
The Federal Asylum Office is responsible for people who are illegally residing in Austria.
So no.
You would first have to leave Austria and then submit an appliaction at the Austrian Embassy in your home country.
You are allowed to marry without a residence permit. Working is only possible in certain cases.
I have received a negative decision from the Federal Asylum Court. Am I allowed to marry?
You are allowed to marry without a residence permit, but will need a photo ID-either passport or valid asylum card, as well as the necessary documents/certificates-see article
Am I allowed to work?
You are allowed to start an organization, otherwise you will need an asylum card and ongoing asylum proceeding, as well as Austrian Public Employment System (AMS) permit, to find employment.
What about health insurance?
Also when you are illegal, there are possibilities to get health insurance.
What will happen to me after I have received a negative decision from the FAC?
After you have received a negative decision, the FAO is responsible for your departure, unless you leave voluntarily. That means the FAO makes sure that you will leave Austria.
If you have submitted a passport or in certain cases, as with Afghans, a birth certificate in original, the FAO can by itself organize papers for your departure (the socalled travel certificate), and initiate your involuntary return, also called deportation.
If the FAO, does not have a passport or birth certificate from you, the authority will first send you an invitation
to an interview, in which they will either assign you to go the embassy of your home country to organize papers for your return (also called travel certificate), or the FAO gives you papers to sign, so that they can apply directly for a travel certificate at the embassy.
As soon as the the FAO has obtained a travel certificate for you, you can be deported-see article
Our recommendation: Schedule an appointment an integrate
I am currently illegal. What are my next steps?
1. Contact a lawyer and schedule an appointment.
2. Receive counsel on the best possible solution for your case.
3. Integration, Integration! Learn the German language, become a member of NGOs, organizations, look for work (also voluntary), form friendships with Austrians, do not become criminally active.
Integration documents will also help you to apply for a humanitarian residence permit.
Schedule a consultation with the lawyer
In short, a lawyer can also assist you in obtaining a residence permit. Just because you are illegal in Austria, does not mean that you do not have a future here.
Call me at 0650 7283562 or write me at office@anwaltklammer.com
to schedule an appointment for EURO 150. At the appointment we can inform you about what the best approach in your case should be.
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