The Austrian Aliens’ Act (Fremdengesetz, FrG) of 1997 regulates short stays, long-term residence and employment immigration in combination with the Foreigners’ Employment Act (Ausländerbeschäftigungsgesetz, AuslBG) of 1975. Both acts were recently revised in a Comprehensive way, on July 9, 2002. They provide for a strict immigration control system by requiring the future immigrant in principle to apply for an immigration visa from abroad and subjecting would-be immigrants to a tight quota system.

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The Austrian Aliens’ Act (Fremdengesetz, FrG) of 1997 regulates short stays, long-term residence and employment immigration in combination with the Foreigners’ Employment Act (Ausländerbeschäftigungsgesetz, AuslBG) of 1975. Both acts were recently revised in a Comprehensive way, on July 9, 2002. They provide for a strict immigration control system by requiring the future immigrant in principle to apply for an immigration visa from abroad and subjecting would-be immigrants to a tight quota system.

The Federal Ministry of the Interior is responsible for policies in the field of immigration regulation, asylum and migrants  policies but the provincial governments (Bundesländer) also play a fundamental role (see quotas).

In the area of labor market policies, the Social Partners and the Federal Ministry of Economy and Labor  have a great influence. The Federal Minister of Economy and Labor may issue decrees concerning the easing of conditions for the issue of work permits and can thus directly influence labor market regulations. He is also in charge of policies and measures against unemployment, which can seriously affect migrants.

With regard to policies on naturalization, legal competence lies with the federal legislator (Bundesgesetzgebung), but the provincial governments are in charge of executing the federal law and thus hold important powers to administratively interpret the conditions for naturalization laid down in the Naturalization Act.

Annual immigration is determined through the quantitative and qualitative criteria of the quota system.

Every year the Austrian Economic Research Institute (Wirtschaftsforschungsinstitut) compiles a report on labor market, schooling and health system, housing market, general demographic developments of the previous year and assesses the developments of the following year including needs of migrant workers in the demographic and socio-economic context.

The Austrian government then determines the maximum number of new long term residence permits and seasonal workers by passing a decree on permanent residence (Niederlassungsverordnung) for the respective year, taking into account also the number of immigrants already residing in Austria, the number of asylum seekers, the number of persons who were granted political asylum in the preceding year, the number of family members who are entitled to obtain a residence permit as well as the requirements of public peace, order and security The overall quota for Austria is apportioned to the 9 federal provinces (Bundesländer).

The proposal for the quota is submitted to the federal province governments, the social partners and a whole range of institutions and bodies concerned to give their evaluation. The federal provinces are entitled to submit their own proposals and the maximum figures may be lower but not higher than what they wish;  the decision is taken after consultation with parliament. The government is entitled to negotiate and determine quotas (contingents) bilaterally and on a mutual basis for the employment of key personnel with neighboring countries upon initiative by the minister for the industries and labor (art. 1.5 AuslBG). These are exempt from the quota system.

The 2002 amendment of the Aliens Act introduced the so-called “integration agreement”: since January 1, 2003, all non-EU-immigrants and those who have been residing in Austria since January 1, 1998, except for “key personnel”, children, the elderly and any immigrant demonstrating suitable knowledge of German will have to attend a language course of 100 hours. The immigrant concerned will have to pay a growing part of the costs of the course, starting with 50%, if the course is finished within the first year and a half of residence, and increasing to 100%, if finished after the 2nd year. If the courses are not completed successfully within four years, the immigrant may lose his/her residence permit. (A_FrG.art.50).

The bill also improved the access of the second generation to the labor market and introduced the “certificate of residency” (CR), a long term residence permit (issued for 10 years) for immigrants residing legally and permanently in Austria for at least five years, who are able to sustain themselves. Immigrants who arrived in Austria after January 1, 1998, will have to fulfill the “integration agreement” to be issued the certificate.

There are no specific programs to recruit highly qualified immigrants, but the Aliens Act of 2002 does restrict new labor immigration to a) highly qualified personnel and b) so-called “seasonal workers”. As of 2003, labor immigration is restricted to persons earning at least 60% of the upper threshold for social security contributions, which in 2003 amounts to Euro 2016.- gross monthly, 14 times a year (this threshold lies well above the starting income of many qualified professions, like nurses or trained salespersons, especially in sectors with a high level of female employment). At the same time, the employment rules for seasonal workers have been changed to allow the employment of seasonal workers two times consecutively for half a year, after which the worker has to leave Austria for at least two months before being able to be employed again. Consequently, lower qualified new immigrants may only enter Austria as “seasonal workers” and under cross-border commuter schemes.  According to the amended Alien Act, permanent immigration is possible only for key personnel and managers, both employed and self-employed (selbständige, unselbständige Schlüsselkräfte).

While the general Austrian dual system for residence and work permits remained untouched by the reform of 2002, key personnel since January 1, 2003, needs to address only one authority in order to obtain a combined residence and work permit. The Foreigners‘ Employment Act as revised in 2002 provides for a special procedure for the admission of employed key personnel: key employees, managers and their family members, for example, have to sign the “integration agreement” only if they plan to stay for more than 24 months. Key (self-) employees and managers in international, but even in this case they are exempted  if the AMS confirms that the (self-) employment is in the overall economic interest (article 50b para 1 lit 3 and 4 FrG).

Lower qualified work force is forced into temporary forms of immigration: the definition of commuters (PendlerInnen) was extended. According to the revised act, a commuter is a person who travels back and forth at least once a week (in the past the definition required traveling back and forth on a daily basis). Commuters are exempt from the residence quota system but their employers are required to obtain a work permit for them.

They need to obtain a temporary residence permit (Aufenthaltserlaubnis).

Beside the mentioned Aliens’ Act and the Foreigners’ Employment Act, the main law governing  activities under the asylum procedure is  the Asylum Act, 1997 (entered into force on 1 January 1998  and amended in 2001), whose main provisions concern the procedures, rights, and exclusions etc.,  which directly affect asylum seekers.

The purpose of the 1997 legislation was to keep the focus on limiting misuse of the asylum procedure  and to make the legislation more equitable. In particular, this was achieved by establishing the  Independent Federal Asylum Senate (UBAS), which replaced the Ministry of Interior as the second  instance (in case of negative decisions). Another change in the 1997 law was the introduction of an  accelerated procedure whereby application of the third country (inadmissibility) rule and the  manifestly unfounded rule must be appealed already within 48 hours. However, in 1998 the Supreme Constitutional Court found that this accelerated procedure was unconstitutional, and the period for  subjecting an initial negative decision for appeal was first extended to 10 days (December 1998).

Finally, an important change in the 1997 legislation was that asylum seekers, who enter legally, are now automatically granted a temporary residence permit for the entire period during which their application for asylum is being processed. Asylum seekers, who enter illegally, are granted a temporary residence permit only if the asylum application is not determined as manifestly unfounded. Another important change in Austrian asylum policy was a Directive which  took effect on October 2002. It bars some categories of asylum seekers from government-run shelters. Like other member states of the European Union, Austria used to accommodate asylum seekers in special government-run centers while their requests for asylum were being processed. The new ruling bars all asylum seekers from countries negotiating entry into the European Union from accommodation in refugee camps and other shelters run by the federal government. Under the new ruling nationals of Russia, Turkey, Georgia, Armenia, Azerbaijan, Nigeria, Yugoslavia and the former Yugoslav Republic of Macedonia will have access to government-run shelters only while their original application for asylum is being considered but cannot remain in them while they appeal a negative first decision. (A_Asylum_Act_Amendment.2001)

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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