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Eligible family members
Family members eligible for family reunification include:[1]
- Parents of a minor child;
- 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 are not considered a family member eligible for reunification.[2]
Beneficiaries of international protection who get married after having arrived in Austria cannot reunite with their spouses under the AsylG. 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.
On 12 April 2018, the CJEU ruled in case A. and S., which concerned a request for a preliminary ruling from the Dutch Court of The Hague 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 his or her entry into the territory of a Member State and of the introduction of his or her 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 implemented 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.
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. 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.
Following a reform proposal aiming to restrict the right to family reunification in 2016, also discussed below, a draft law on alien law (FrÄG 2017) included measures which required from family members to be able to cover the costs for the purpose of proving family links (e.g. DNA tests) in order to be reunited with beneficiaries of international protection. The amendment, criticised for imposing adding hurdles on family members and for creating risks of rendering family reunification ineffective in practice, was not adopted.[5] Costs of DNA tests are reimbursed where these are ordered by the BFA.
The Administrative High Court 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.[6]
Waiting periods and material conditions
Family members of refugees can apply for an entry visa immediately after the 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.[7] 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.[8] These are material requirements set in line with requirements for other third-country nationals. No language knowledge is required for family reunification.
Subsidiary protection beneficiaries’ family members can only submit an application after at least 3 years of the sponsor’s recognition.[9] The aforementioned requirements – sufficient income, health insurance and accommodation – in force since 1 June 2016 are always applicable to beneficiaries of the subsidiary protection,[10] with the exception of unaccompanied children.[11]
The fact that a beneficiary of subsidiary protection has to wait three years before initiating a family reunification procedure has been ruled as non-discriminatory by the Constitutional Court.[12] 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. 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).
NGOs have expressed concerns in relation to the time limit for submitting an application for family reunification, given that applications must be submitted personally to an Austrian embassy. However, waiting times for submitting an application at currently exceeding 3 months. In practice, applications submitted in writing are thus very lengthy.
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]
It should be further noted that, in order to benefit from family reunification, the 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 has 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 2020, 1,189 applications for family reunification were lodged and concerned following nationalities: Syria (482), Afghanistan (284), Somalia (178). There is no data available at the time of writing on how many visa were finally issued in 2020.
The Austrian Red Cross, who also supports the family reunification of persons benefitting from a protection status, assisted 1,355 families in 2017, out of which 56% originated from Syria, 18% from Afghanistan and 9% from Somalia. However, the number of visas being delivered has fallen sharply in 2018: around 5,600 visas were issued in 2017, but the number decreased by 65% in 2018. There are currently around 750 applications under consideration.[15] There is no data on how many cases are being processed at the end of 2020.
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.[16] In 2020, there were no updated statistics on the activities of the Red Cross made available by the time of writing of this report. 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.
[1] Article 35(5) AsylG.
[2] VwGH, Decision Ra 2015/21/0230 to 0231, 28 January 2016; Ra 2016/20/0231, 26 January 2017.
[3] CJEU, Case C-550/16 A. and S., Opinion of AG Bot of 26 October 2017.
[4] VwGH, Decision No Ra 2017/19/0609, 3 May 2018.
[5] See e.g. Diakonie, Stellungnahme der Diakonie Österreich zum Entwurf betreffend ein Fremdenrechtsänderungsgesetz 2017, 18 January 2017, available in German at: http://bit.ly/2kwEDoK.
[6] VwGH, Decision Ra 2017/18/0131, 22 February 2018.
[7] Article 35(1) AsylG.
[8] Ibid, citing Article 60 AsylG.
[9] Article 35(2) AsylG.
[10] Article 35(2) AsylG.
[11] Article 35(2a) AsylG.
[12] VfGH, Decision E 4248-4251/2017-20,10 October 2018.
[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] Die Presse, Familienzusammenführung: Immer weniger wollen nach Österreich, 6 February 2019, available in German at: https://bit.ly/2GN3SBH.
[16] Information by Austrian Red Cross, Beratungsstelle Familienzusammenführung, 13 March 2019