Maastricht University / UNU-MERIT
Austria’s family-reunification policies have come under increasing scrutiny, both by the local population and external observers. The Ministry of the Interior’s branch for immigrant matters is the Bundesamt für Fremdenwesen und Asyl (Federal Office for Foreign Affairs and Asylum, author’s translation). This department is the first instance for decisions on asylum and the right to stay on humanitarian grounds and, as such, at the centre of the migration debate.
Strengths & Weaknesses
In line with the prevalent narrative of increasing the barriers to entry for foreigners by complicating family reunification, Austria’s policies in this field count as “one of Europe’s most restrictive”. While Austria has progressed towards a more migrant-friendly policy since 2007, this happened in the areas of labour market mobility and anti-discrimination laws and was necessitated by EU law. Thus, Austria is being described as a country providing an equal amount of obstacles and opportunities for extra-EU immigrants today, placing it below the European average – both overall and within the area of Family Reunification.
In 2011/12, an estimated 5% of non-EU/EEC immigrants were living without their partners in Austria. Austria’s restrictiveness in this area is fuelled by age-limits for spouses and having to take language tests abroad – unless sponsored by a highly-skilled worker from within Austria. For more granular analysis, four dimensions of family reunification are analysed separately: Eligibility, Conditions, Security of Status and Legal Certainty, and Rights Associated with the status.
- Temporary residents can only reunite with their family if they are legally able to sponsor their family members – a status that is only available to temporary residents if it has been specifically granted.
- Married couples need to be at least 21 years of age and wait for a period of three years to be recognized under Austrian law. The official reasoning for this is to prevent arranged and forced marriages. However, there are no additional measures in place to control for this, indicating that the end of increasing barriers to entry is the prerogative.
- Same-sex registered partners/spouses are being treated similar to opposite-sex couples since 2010.
- Underage children are fully permitted entry since 2005, abolishing the previous threshold of 15 years.
- Conditions to Entry:
- High prices for and difficult accessibility of German tests mandatory since 2011 are a significant barrier to entry.
- Difficult access to the necessary language skills have contributed to proving the above measure unfeasible for enhancing language skills in potential migrants.
- Increase in income and housing requirements in 2006
- Trend: more stringent over time
- Security of Status and Legal CertaintyOne of the longest screening procedures and highest levels of discretion in Western Europe (ibid)
- The only country of the EU 27 to set state-administered quotas for family reunification, exacerbating waiting time for potential candidates (ibid)
- Grounds for withdrawal and rejection of applicants have been extended in 2010 (ibid), in reaction to the Austrian Administrative Court’s decision demanding an inspection of every individual case on an individual basis, following the ECJ’s decision on the Chakroun case
- Rights Associated with Status:
- Equal social rights and access to the labour market since 2011 (ibid).
- Vulnerable groups enjoy a facilitated access to family-reunification rights (e.g. victims of violence, widowhood, divorce) under certain conditions (ibid).
The Graph below describes the situation in 2014 as evaluated by MIPEX.
From 2008 to 2013, these measures led to a progressive drop in family-reunifications in Austria.The number of 7000-8000 people re-united between 2008 and 2001, dropped to below 6000 in 2013 (ibid). These numbers contain a slight majority of women and girls. Family members that are not counted among the nuclear family are, as a rule, unable to reunite in Austria. Especially the elderly (65+ of age) tend to be ineligible for sponsorship by a non-EU citizen in Austria (ibid). Perpetuated by DNA testing, individuals from outside the EU/EEC are have been generally less likely to reunite with their families in Austria, than in other EU countries, at an average ratio of 1 family member per 100 non-EU permanent residents in Austria (MIPEX, 2015).
This section evaluates the Austrian policies on family-reunification with regard to the perspectives of Austria and Migrants respectively.
The Austrian Perspective
- Reflect the electorate’s desires
- Creates perception of preventing ineligible immigration
- increases political capital of acting politicians
- Prevents victims of forced & arranged marriages from re-uniting
- Low de-facto effectivity of screening
- Discrepancies between perceptions and realities among the public
- Restrictive process risks unjustified rejection of eligible individuals
- Damaging Austria’s international reputation
- Stringent system compromises Austria’s moral authority
- Puts applicants at the mercy of administrative clerks overburdened by case-backlog due to rigid reunification quotas
- Inefficient process disadvantages immigrants, staff and Austria’s reputation
The Migrant Perspective
- Strong rights for accepted migrants, enhancing legitimacy due to having passed through a process seen as highly restrictive
- Policy designed to appeal to public opinion, rather than humanitarian standards, EU Law or Austria’s best national interest
- Assumed guilty until proven innocent
- Victims of forced or arranged marriages rejected rather than helped
- System exceedingly punishes legitimate claimants, filtering out persona non grata merely by chance
From a normative perspective, Austria should eliminate the unconditional assumption of guilt towards immigrants and replace the often unjustly high barriers to entry wit harsher sanctions on illegal behaviour, after it has been proven. Concerning policy, the following actions are recommended:
- Ratify inter alia Protocol No. 12 to the European Convention on Human Rights, which provides for a general prohibition of discrimination
- Repeal Section 8(2) of Act No. 218/1975 on employment benefits for foreigners
- Put in place legislation allowing for more flexibility concerning dual nationality
- Ensure equal treatment of immigrants and combat discrimination, also by institutions
- Establish an enhanced system of checks and balances
- Create a system for data collection on immigrants and good and bad practices, to improve the understanding and the responses to individual situations of immigrants
- Replace the quota system with integration measures targeted specifically at families.
Realistically, investments in education of the public to combat populism and perpetuate an honest debate on immigration are the most important steps to take. Optimally, the government should offer courses and talks in public places, encourage communities to engage in discussion about and with migrants.
Generally, while the optimal way to progress seems clear, it also appears impossible as of now. Hence, it is most likely in the hands of civil society organizations to trigger a reflective discourse about the issues of family reunification specifically and immigration generally. Only after this has happened can politicians be expected to jump on the bandwagon and not only perpetuate the dominant discourse, but also enable sustainable change by utilizing a possible policy window created by a shift in public opinion.