Author
The Aliens Employment Act (AuslBG) states that an employer can obtain an employment permit for an asylum seeker 3 months after the asylum application is admitted to the regular procedure, provided that no final decision in the asylum procedure has been taken prior to that date.[1]
The possibility of obtaining access to the labour market is restricted by a labour market test (Ersatzkraftverfahren), which requires proof that the respective vacancy cannot be filled by an Austrian citizen, a citizen of the EU or a legally residing third-country national with access to the labour market (long-time resident status holder, family member etc.).[2] From 2004 to 2021, asylum seekers were practically excluded from the access to the labour market as an internal decree obligated public officials to deny working permits when the applicants are asylum seekers. The Constitutional Court declared these decrees as unlawful in 2021.[3]
Applications for an employment permit must be submitted by the employer to the regional Labour Market Service (AMS) office in the area of the district where the envisaged place of employment is located. Decisions are taken by the competent regional AMS office. In the procedure, representatives of the social partners have to be involved in a regional advisory board. The regional advisory board has to recommend such an employment permit unanimously. Appeals have to be made to the Federal State AMS office that must decide on appeals against decisions of the regional AMS office. There is no further right of appeal.[4] The decision has to be made within 6 weeks; in case of appeal proceedings, the same time limit must be applied.
In addition, a 2004 ordinance introduced further restrictions to the access to the labour market by limiting employment to seasonal work either in tourism, agriculture or forestry.[5] These seasonal jobs were limited by a yearly quota for each federal province and could only be issued for a maximum period of 6 months.[6] In 2021, the Supreme Administrative Court struck down the decrees that limited the right to work of asylum seekers to specific work areas and to a specific time limit during the year.[7]
A further problem for asylum seekers working is the regulation in the Basic Care Acts of the state and the federal provinces that requires a contribution to Basic Care, if asylum seekers have an income. In practice, there is only an allowance of € 110 plus € 80,- for each family member left to asylum seekers in most of the federal provinces, while the rest of the money earned contributes to the cost of reception.[8] Moreover, if they have been receiving an income for more than 3 months, Basic Care support is no longer provided. If the asylum seeker asks for readmission into Basic Care after they have finished the employment, cash contributions to the provision of Basic Care are demanded. In fact, it is assumed by the authorities that only about € 550 (1.5 times the basic provision amount) per month have been spent by the asylum seeker on subsistence and accommodation during the period of employment. Income exceeding this amount is deducted from the allowance received under Basic Care from that time onwards until repaid. As mentioned above, Tyrol has an allowance of € 240 per person, all other federal states € 110 per person.[9]
Moreover, asylum seekers are not registered at the Public Employment Service as unemployed persons. Therefore they are not entitled to vocational trainings provided or financed by the Public Employment Service. As they are not registered as persons searching for work at the Public Employment Service, access to the labour market largely depends on their own initiative and pro-activity in job hunting. Their lack of resources can also be an additional obstacle in securing in job; e.g. when it comes to travel costs for job interviews.
Since 1 April 2018, asylum seekers admitted to the regular procedure for 3 months or more can also be employed through service vouchers in private households (e.g. for gardening, cleaning or child care etc.). Vouchers can be bought at the post office or online.[10] However, in practice, the necessary registration is complicated and this possibility is not very known nor used. The Ministry of Social Affairs decided in 2018 that asylum seekers have no longer access to vocational training. Since then, the possibility of working through vouchers is one of the only possibilities to work for asylum seekers.
Non-profit work, voluntary work and internships
Asylum seekers can carry out non-profit activities and receive an acknowledgment of their contributions. The amount of this remuneration was debated throughout 2018 and 2019. The Ministry of Interior lowered the maximum remuneration to € 1.50 by way of decree. This decree was revoked by the interim government in May 2019, thus re-instating the former regulation which foresees that asylum seekers are allowed to earn up to € 110 per month.[11] These non-profit jobs include administrative and/or office assistance, translation services, support for parks and sports facilities, playgrounds, elderly care, assistance in nursery schools, school attendance services, assistance in animal shelters, or support for minor resettlements in the municipality.[12] Since April 2018, the Minister of Interior has the power to regulate which NGOs will be able to enlist asylum seekers on a voluntary basis for charitable activities and to set the maximum amount for such work.[13] The minimum fee is regulated for each sector e.g. €11.75 an hour for gardening. The monthly income for this kind of employment is limited to €600. In Vienna allowance is € 200 per person and in Tyrol € 240 per person.
On 25 January 2017, the Ministry of Social Affairs submitted a decree to the Labour Market Service (AMS). The Decree clarifies that:[14]
- Asylum seekers are allowed to complete practical experience and internships within the framework of their training in vocational schools or secondary schools;
- Adult asylum seekers are also allowed to do unpaid voluntary work for certain companies. An asylum seeker may take 3 months in a one-year period with several companies.
Companies have to register asylum seekers for internships at the AMS no later than 14 days before the start of the internship. Interns are also entitled to reasonable remuneration.[15]
At the conferences of provincial councillors for refugees in September and December, a discussion on mandatory work for asylum seekers was opened. Specifically, the proposal focused on mandatory community service for asylum seekers. If they do not comply, it should be possible for basic care benefits to be cut. This proposal is controversial and is rejected above all in the NGO sector, migration studies and workers organisations (Arbeiterkammer). There is no need for compulsory charitable work, as people would like to work anyway. Conversely, it would be important to assess whether there enough ‘jobs’ positions would be available in case work for asylum seekers became mandatory.[16]
Statistical information
By the end of 2018, 1,249 asylum seekers had a valid work permit, out of which 1,070 were apprentices and, during that same year, 1,615 additional work permits were issued to asylum seekers, out of which 757 concerned apprentices.[17] 2019 was marked by a drastic decrease in the number of apprentices given that the Ministerial decrees foreseeing the access to vocational training for asylum applicants aged below 25 years old were revoked in 2018. As a result, only 943 work permits were issued during the year, out of which only 12 were issued to apprentices. In these special cases, the asylum applicants had challenged the decisions in front of the Labour Market Service Agency, arguing that denying access to labour market infringes their rights guaranteed under the Recast Reception Directive. The Constitutional Court announced on 1 March 2021 that it would examine whether the ministerial decrees are infringing the constitutional rights of the asylum seekers.[18] By the end of 2019, only 996 asylum applicants had valid working permits, out of which 741 were apprentices and 110 concerned seasonal work. For most applicants who could still start an apprenticeship the formation ends in 2021. By the end of 2020, 576 applicants had valid working permits, out of which 397 were apprentices. In 2021, the Constitutional Court ruled that the internal decrees denying the access to the labour market for asylum seekers (Barteinstein-Erlass) and access to apprenticeship for asylum seekers (Hartinger-Klein-Erlass) violated the fundamental rights of asylum seekers. As a result, asylum seekers can start an apprenticeship if certain conditions are met.
In 2023, 40 asylum seekers were working as an apprentice, 3,240 work permits were issued, and as of December 2023 1,642 asylum seekers had a valid working permit.[19] Beneficiaries of TPD have easier access to the labour market: They need a working permit which is not bound to any other conditions other than their status as displaced person. As of December 2022, 11,776 beneficiaries of temporary protection from Ukraine had a valid working permit. For further information, see annex on temporary protection.
[1] Article 4(1) AuslBG.
[2] Ibid.
[3] VfGH, E 2420/2020, 5 June 2021, available in German at: https://shorturl.at/BvFMY.
[4] Article 20(1) and (3) AuslBG.
[5] Ordinance GZ 435.006/6-II/7/2004,11 May 2004.
[6] Supreme Administrative Court, Ro 2019/09/0011, available at: https://bit.ly/431rAC5. See also: EMN, Access to the Labour Market and Labour Market Integration of Asylum-seekers in Austria, April 2023, available at: https://bit.ly/3Tht4EW.
[7] VwGH, Decision Ro 2019/09/0011, 28 April 2020, available in German here.
[8] In Tyrol, asylum seekers may earn €240 per month without contribution to the cost of basic care.
[9] asylkoordination Österreich, ‘Kompetenznetzwerk Grundversorgung’, last modified 17 March 2024, available in German at: https://bit.ly/3xUv51G.
[10] Dienstleistungsscheckgesetz, 12 February 2018, available at: http://bit.ly/2nSSz0m.
[11] Wiener Zeitung, ‚Innenminister Ratz macht Kickls Entscheidung rückgängig‘, 23 May 2019, available in German at: https://bit.ly/2wlXfmw.
[12] Ministry of Interior, ‚Sobotka: Leistungskatalog für Hilfstätigkeiten von Asylwerbern erstellt’, 28 October 2016, available in German at: http://bit.ly/2kS0dHB.
[13] Article 7(3a) GVG-B.
[14] Oberösterreichische Nachrichten, ‘Asylwerber dürfen nun in Firmen schnuppern’, 1 February 2017, available in German at: http://bit.ly/2k2eEtz.
[15] Ministry of Labour, Anzeigebestätigungen gem. § 3 Abs. 5 AuslBG für Ferial- und Berufspraktika und Volontariate von AsylwerberInnen, 25 January 2017, available in German at: http://bit.ly/2oTXTjU.
[16] ORF.at, „Arbeitsverpflichtung rechtlich „fraglich““, 21 September 2023, available in German at: https://bit.ly/3UIIWQH and Keline Zeitung, „Beschluss zur Grundversorgung – oder doch nicht?“, 7 December 2023, available in German at: https://bit.ly/3WqkyWs.
[17] Information provided by the Labour Market Service (AMS) in February 2019.
[18] Constitutional Court, Prüfbeschluss E2420/2020-11, 1 March 2021, available in German at: https://bit.ly/38Xopkh.
[19] Enquiry to labour market service by asylkoordination austria, unpublished.