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Eligible family members
Family members eligible for family reunification include:[1]
- Parents of a minor child for family reunification of unaccompanied minors;
- Spouses and registered partners, where the marriage / partnership existed before fleeing the country of origin. In case concluded in another country, the marriage / partnership must be legally valid in the country of origin;
- Children who are minors at the time of the application;
According to the VwGH, siblings in themselves are not considered a family member eligible for reunification.[2] However, underaged siblings will be allowed to reunite as well when an unaccompanied minor beneficiary of international protection reunites with their parents.
Essentially, the same rules apply for same sex spouses in theory. As the precondition requires an equivalent to the formally registered partnership in Austria which does not exist in many countries of origin same sex couples are barred from family reunification in practice.
Beneficiaries of international protection who get married after having arrived in Austria cannot reunite with their spouses under the AsylG. They will have to go through the regular family reunification procedure as opposed to the one specific to the asylum law. In such a case, in addition to the material conditions set out below, spouses must also pass a German exam before entering Austria. They are also subject to the annual quota on family reunification.
Regarding family on the territory during the asylum procedure, all underage, unmarried child of an asylum seeker who resides in federal territory is considered to have received protection when an application for international protection was lodged by the asylum seeker now beneficiary of international protection. Indeed, if one family member qualifies for international protection, the other members must also enjoy the same level of protection.
Three years after receiving subsidiary protection, family members of those individuals may apply for entry permits during family reunion. They must also show proof of suitable housing, health insurance, and sufficient income. In the same period, 133 families, consisting of a total of 604 family members, were successfully reunited. In total, families from 31 countries were supported, mainly 87% of the families come from Syria, 5% from Afghanistan, 3% from Somalia and 1% each from Iran and Iraq.
On 12 April 2018, the CJEU ruled in case A. and S. on the right to family reunification of unaccompanied children who reach the age of majority after lodging an asylum application. The CJEU concluded that an asylum applicant who is below the age of 18 at the time of their entry into the territory of a Member State and of the introduction of their asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status, must still be regarded as a “minor” for the purposes of that provision.[3] This judgement of the CJEU was taken into consideration by the VwGH in its decision of 3 May 2018.[4] However, the VwGH saw no basis for changing its previous decision-making practice. If an unaccompanied minor attains the age of majority during the asylum procedure, the family status of the parents and thus the conditions for joining an asylum-entitled child who is an adult at the time of the decision, cease to apply.
In order to clarify open questions arising from the ECJ’s judgment C-550/16, the Vienna Administrative Court itself submitted a reference for a preliminary ruling, numbered C-560/20: is it necessary that the parents of the third-country national comply with the period for submitting an application for family reunification referred to in the judgment of the CJEU of 12 April 2018, C-550/16, A and S, paragraph 61, namely ‘in principle within a period of three months of the date on which the “minor” concerned was declared to have refugee status’?
The refusal to grant an entry title in the context of family reunification refers to proceedings that are regulated under the Settlement and Residence Act (Niederlassungs- und Aufenthaltsgesetz – NAG). The NAG further regulates the legal route for third-country nationals seeking to obtain a residence permit in Austria. This legal way via NAG is often the only way for family reunification in cases where the application for legal entry was not lodged within three months of the date when the asylum status was granted to the anchor family member in Austria. Family members that do not fall under the restrictive definition of “family member” in the asylum law also have to apply for family reunification via NAG. Family members of persons entitled to asylum may be granted, under certain conditions, a residence permit called “Red-White-Red-Card-Plus” in accordance with Article 46 NAG. This card grants access to the labour market, is valid for one year and can be prolonged to 3 years.
In the case of family members of holders of a residence title “Red-White-Red – Card”, the period of validity of the title shall be determined by the period of validity of the residence title of the sponsor. The residence title “Red-White-Red – Card plus” issued to family members of holders of a residence title “Red-White-Red – Card plus” shall be issued for a period of two years.
Costs of DNA tests for the purpose of proving family links are reimbursed where these are ordered by the BFA. These tests are ordered systemically by the authority.
The Administrative High Court has emphasised that an application for family reunification cannot be dismissed on the ground that there are doubts on the family ties, without having informed the concerned persons about the possibility to undertake a DNA test.[5] Also, there have been cases pending before the Administrative Court on the question of whether an application for family reunification can also be filed within the EU.
Waiting periods and material conditions
Family members of refugees can apply for an entry visa immediately after status recognition of the sponsor. However, a number of restrictions have been put in place as of 1 June 2016. If the application is submitted to an Austrian representation within 3 months, no further requirements are imposed.[6] If it is submitted after the 3-month time limit has lapsed, a number of conditions are imposed: (a) sufficient income; (b) health insurance; and (c) stable accommodation.[7] These are material requirements set in line with requirements for other third-country nationals. However, contrary to other third country nationals, no language knowledge is required for asylum law family reunification, nor is there a quota.
Subsidiary protection beneficiaries’ family members can only submit an application after at least 3 years from the sponsor’s recognition.[8] The aforementioned requirements – sufficient income, health insurance and accommodation – in force since 1 June 2016 are always applicable to beneficiaries of the subsidiary protection,[9] with the exception of family members of unaccompanied children.[10]
The fact that a beneficiary of subsidiary protection must wait three years before initiating a family reunification procedure has been ruled as non-discriminatory by the Constitutional Court.[11] The case concerned a 13-years-old unaccompanied minor from Syria who had received subsidiary protection in July 2016 and who had therefore to wait for 3 years to benefit from family reunification instead of 1 year (the previous waiting time imposed). In its ruling, the Constitutional Court considered that differentiating between persons entitled to asylum and persons entitled to subsidiary protection did not pose a risk of unequal treatment, as they are evident differences between these two groups (e.g. with regards to the temporary right of residence). Following the judgement by the ECtHR in the case M.A. against Denmark which found the 3-year waiting period to be in conflict with art 8 ECHR, beneficiaries of subsidiary protection applied for family reunification before the 3-year-limit had passed. In one case, the Constitutional Court dismissed the appeal and did not put the regulation in question.[12]
Procedure and statistics
NGOs have expressed concerns in relation to the time limit for applying for family reunification, given that applications must be submitted personally to an Austrian embassy. Indeed, waiting times for submitting an application currently exceed 3 months. In practice, applications submitted in writing are thus very lengthy. This situation deteriorated in 2021 due to the takeover of the Taliban in Afghanistan: the responsible embassy in Islamabad, Pakistan, scheduled appointments with several months of waiting time. The situation has worsened in 2022: due to the high number of applications and lack of resources at the Austrian Embassy in Syria, which is located in Beirut, the waiting time for the registration appointment at the Embassy is more than 12 months, increasing the length of procedure to at least 2 to 3 years according to reports from the Austrian Red Cross.
Regarding specific difficulties, the Austrian Red Cross (ÖRK) established that the Taliban takeover in Afghanistan made it increasingly difficult for Afghan families to obtain the necessary documents (especially passports) for family reunification. Moreover, the large number of cases has dramatically extended the waiting periods and the duration of procedures at Austrian embassies.
This is despite the fact that the law makes explicit reference to Article 8 ECHR in Article 35(4) AsylG, and the explanatory notes cite a ruling of the Administrative High Court that an application for a visa for family reunion with a person entitled to protection should be granted if this is necessary to maintain private and family life.[13]
In order to benefit from family reunification, family members of persons entitled to asylum or subsidiary protection make an application at the Austrian embassy. In that regard, the BFA conducts a probability diagnostic for the grant of family reunification, during which the family ties are particularly examined. In 2018, the BFA conducted a total of 3,068 of these probability evaluations.
The BFA processed 9,495 family reunification applications in 2016, 7,612 in 2017 and 2,247 in 2018.[14] In 2021, 2,459 (2020: 1,189) applications for family reunification were lodged and concerned the following nationalities: Syria (1,335), Afghanistan (589), Somalia (216).[15] In 2022, 5,830 applications for an entry visa via family reunification were lodged of which 4,871 came from Syrian nationals, 490 from Afghan nationals and 254 from Somalian nationals. In 3,335 cases of Syrian nationals the forecast decision taken by the BFA was positive, in 169 cases were negative.[16]
In 2019, the Austrian Red Cross provided support to 573 family reunification procedures, which concerned 1,442 family members willing to be reunited with a person granted international protection in Austria. In total, the Austrian Red Cross assisted 5,143 persons in 1,862 open cases. Throughout 2019, 1,264 counselling units with clients were thus carried out, while another 2,942 persons obtained assistance from the open counselling service. 388 written submissions were brought in by the Austrian Red Cross in 2019.[17] In 2020, there were no updated statistics on the activities of the Red Cross made available. It was reported that due to Covid-19 related travel restrictions and limited working hours at the Austrian embassies abroad, there was a significant delay in processing family reunification cases.
In 2021, 4,073 applications for visas related to family reunifications were registered, of which 2,659 were from Syrian and 767 from Afghan nationals. There are no statistics available concerning the decisions of the authorities. As of 31 December 2021, 1,309 applications were still pending.[18]
In 2022, the Austrian Red Cross assisted 3,019 new families representing 13,103 family members in reunification processes. 87% of all cases concerned Syrian nationals, 5% Afghan and 3% Somalian nationals. At the end of January 2023, 6,785 cases are pending. In 2022, 133 families representing 604 family members could be reunited successfully.
[1] Article 35(5) AsylG.
[2] VwGH, Decision Ra 2015/21/0230 to 0231, 28 January 2016, available at: https://bit.ly/42cBeBf; Ra 2016/20/0231, 26 January 2017, available at: https://bit.ly/3JHM2jk.
[3] CJEU, Case C-550/16 A. and S., Opinion of AG Bot of 26 October 2017, available at: http://bit.ly/3YUeH9t.
[4] VwGH, Decision No Ra 2017/19/0609, 3 May 2018, available in German at: https://bit.ly/3TmAwgr.
[5] VwGH, Decision Ra 2017/18/0131, 22 February 2018, available in German at: https://bit.ly/3yIMjMJ.
[6] Article 35(1) AsylG.
[7] Ibid, citing Article 60 AsylG.
[8] Article 35(2) AsylG.
[9] Article 35(2) AsylG.
[10] Article 35(2a) AsylG.
[11] VfGH, Decision E 4248-4251/2017-20,10 October 2018, available in German at: https://bit.ly/3mS9cup.
[12] VfGH, Decision E 933/2022-16, 13 December 2022, available in German at: https://bit.ly/41QswbI.
[13] VwGH, Decision Ra 2013/22/0224, 11 November 2013.
[14] BFA, ‘2017: Das Jahr der Aufarbeitung’, 11 January 2018, available in German at: http://bit.ly/2FnCV4G. For the year 2018, the information was provided by the Ministry of Interior.
[15] Ministry of Interior, Answer to parliamentary request 9531/AB, XXVII. GP, 11 April 2022, available in German at: https://bit.ly/3KPxwnY.
[16] BFA, Detail-Statistik 1.-4. Quartal 2022, available in German at: https://bit.ly/3EXJCdI.
[17] Information by Austrian Red Cross, Beratungsstelle Familienzusammenführung, 13 March 2019.
[18] Ministry of Interior, Answer to parliamentary request, 9407/AB, XXVII. GP, 28 March 2022, available in German at: https://bit.ly/3rf5kDk.