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National forms of protection
In Austria, if an application for international protection is rejected, national authorities are required by law to automatically assess whether the individual may be granted a residence permit on grounds deemed “worthy of consideration.” These national forms of protection are divided into two main categories.
The first category includes a residence permit for “special protection”, which can be granted in two specific situations:
- To ensure the prosecution of criminal offenses or the assertion and enforcement of civil claims related to such offenses. This primarily applies to witnesses or victims of human trafficking or cross-border prostitution.[1]
- To protect individuals who have been victims of violence in Austria, provided they are not lawfully residing in the country and are subject to or could be subject to a protective court order. The person must credibly demonstrate that the residence permit is necessary to prevent further violence.[2]
In addition, persons who have held a tolerated stay (“Duldung”) for legal reasons for at least one year, and who continue to meet the requirements for such toleration, are also eligible for a residence permit.[3] The primary reason for such a tolerated stay is a potential violation of the non-refoulement principle for people that do not qualify for international protection or where an exclusion clause applied to their case. The permit is only issued if the person has not been convicted of a criminal offense under the Austrian Penal Code.[4]
The second category is based on Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to private and family life. If a residence permit for “special protection” is not granted, the authorities assess whether a return decision would disproportionately interfere with the individual’s private or family life in Austria. If this is the case, a residence permit is issued on this basis.[5]
If none of these residence permits can be granted and a return decision is issued, the authorities then assess whether deportation is permissible under the non-refoulement principle.[6] If deportation is deemed inadmissible, the person is granted tolerated status (“Duldung”). After one year of tolerated stay, the person may apply for a residence permit under the provisions described above.
In 2024, a total of 938 residence permits (“worthy of consideration”) were granted on such grounds under §§ 55, 56, and 57 of the Asylum Act.[7]
Rights associated with national forms of protection
Compared to international protection, national forms of protection offer more limited rights. Holders of the “special protection” residence permit do not have direct access to the labour market, but may apply for a work permit.[8]
For those granted a residence permit based on private and family life, access to the labour market depends on whether the person has A2-level German language skills and has passed the corresponding language exam, or if they are already legally employed or self-employed with more than a marginal income. Only under these conditions is direct labour market access granted.[9]
Access to basic care or other social benefits varies significantly between Austria’s federal provinces.
Family reunification is not possible under any of these national protection statuses.
Access and application
Rejected asylum seekers do not need to apply separately for national forms of protection. These residence permits are assessed automatically in the course of the asylum decision. The process follows a fixed order:
- If international protection is denied, authorities assess eligibility for a residence permit for special protection.
- If this is denied, they evaluate whether a residence permit under Article 8 ECHR is appropriate.
- If not, they determine whether deportation is permissible under the non-refoulement principle.
- If deportation is not permitted, the person is granted tolerated status, which does not confer a right of residence and provides only minimal legal security. Individuals with tolerated status receive an ID card confirming their identity, but not a legal residence permit.
There is one additional residence permit available for individuals who are well integrated in Austria. However, this must be applied for separately and is not considered automatically within the asylum procedure.[10] The eligibility criteria for this permit are very restrictive, and only a small number of people have received it.
Return procedures
In Austria, return decisions are issued jointly with the rejection of an asylum application.[11] This means that if a person is not granted international or national protection, the same decision will automatically include a ruling on the permissibility of a return.
In 2024, 13,267 return decisions (orders to leave the country) were issued.[12] While detailed statistics on actual returns or ongoing appeals are not available, it is known that 13,568 persons left Austria in 2024, of whom 6,595 did so voluntarily, and 6,973 were forcibly removed.[13]
No official figures are available regarding how many return decisions could not be implemented due to practical or political obstacles such as deportation bans, lack of cooperation with countries of origin or transit, or moratoria on returns.
[1] § 57 Abs 1 Z 2 Asylum Act.
[2] § 57 Abs 1 Z 2 Asylum Act.
[3] § 57 Abs 1 Z 1 Asylum Act.
[4] § 17 Criminal Code.
[5] § 55 Asylum Act; § 52 Alien Police Act; § 9 BFA-VG.
[6] § 46a Abs 1 Z 1 Alien Police Act.
[7] Ministry of Interior, Answer to parliamentary request 636/AB XXVIII. GP, 19 May 2025, available in German here.
[8] § 4 Abs 3 Z 7 Aliens Employment Act.
[9] § 55 Asylum Act.
[10] § 56 Asylum Act.
[11] § 10 Abs 1 Asylum Act.
[12] Ministry of Interior, Answer to parliamentary request 636/AB XXVIII. GP, 19 May 2025, available in German here.
[13] Ministry of Interior, Answer to parliamentary request 636/AB XXVIII. GP, 19 May 2025, available in German here.