Child care benefits for foreign students with their centre of life in Austria

24. May 2021
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Child care benefits for foreign students: What matters is not nationality, but the center of vital interests

Mr. E, a German citizen, decides to move to Austria in the fall of 2015 and begins his studies here. He covers his living expenses by means of alimony payments from his father and, in addition, he receives monthly payments from an educational loan.

D, E’s girlfriend, also German, is studying and has also been living in Austria since 2015. She receives financial support from her mother, who lives in Germany, her uncle and works marginally in Austria alongside her studies.

The couple visits their families living in Germany once or twice a year. Most of their friends are now in Austria.

Since the fall of 2018, E and D have been living in a joint household. At the end of 2018, their child will be born and they will care for it together. At the beginning of 2020, E and D get married. The wedding originally planned in Austria finally takes place in Germany due to less bureaucracy.

Ms. D and Mr. E decide to split the childcare. At the beginning of 2019, Ms. D applies for the German “Elterngeld”. Her application is rejected because the German authorities consider that her center of life has been in Austria for four years. When D applies for childcare allowance in Austria, however, this is also rejected. Here again it is argued that Ms. D’s center of life is not in Austria, but in Germany. It was not sufficient that D was marginally employed in Austria, since her partner had no employment, her family lived in Germany, and she lived mainly on financial support from her German family.

However, the Austrian family allowance is paid to her for her child.

In the meantime, months have passed since the birth of her child. The authority insists on its position and does not want to pay childcare benefits. Now D’s partner E also applies for childcare allowance for his child and hopes to be awarded it. He also receives a rejection. The reasoning of the health insurance company is similar to that of D: He would only stay in Austria for study purposes, he had married his wife in Germany and he was not gainfully employed in Austria, but financed his life exclusively from Germany. Overall, in the opinion of the authority, there would be a closer economic and personal relationship to Germany, which is why the childcare allowance should be denied.

The family is at a loss. It is by no means true that they are only in Austria for study purposes. Rather, they have started a family in Austria, made friends and have lived here for many years. With the request for help, Mr. E turns to the social department of the Austrian Student Union (ÖH). After a detailed consultation, the ÖH decides to cover the costs of legal proceedings before the Labor and Social Court. Ms. D’s and Mr. E’s cases are joined by the court and heard together.

A parent who has the center of vital interests with the child in Austria is entitled to childcare allowance in Austria. This is to be assumed if the person permanently resides in Austria and it results from the overall consideration of all circumstances that this person has the closer personal and economic relations to Austria than to other countries under consideration. The same principles are to be applied that are decisive for the receipt of the Austrian family allowance.

The court weighed various aspects: the intensity of full-time studies in Austria, the steady success in studies, the many social contacts here, her Austrian bank accounts, the main residence registration, the care of the common child in Austria and the examinations carried out in Austria during pregnancy and after birth – all this speaks in favor of the center of life in Austria, according to the court. The court emphasizes that in the overall consideration, above all, the place where the petitioning parents live together with their child takes a back seat to the place from which financial benefits come. In this regard, the Administrative Court (Verwaltungsgerichtshof, VwGH) has ruled that with regard to the concept of the center of vital interests, economic relationships serving the organization of life take a back seat to personal ties. Accordingly, according to settled case law of the Administrative Court, in the case of persons living in a family unit with joint household management, the family residence is of decisive importance for the question of where the center of vital interests is located. The affirmation of the center of vital interests in Austria also does not require that the personal and economic relationships apply exclusively to Austria. Rather, it must be weighed up within the framework of a comparative assessment with which of several states that might be considered has the closer relationship.

In total, the family receives over €10,000 in childcare benefits paid in arrears.

Won by the ÖH: With the support of the ÖH, the family subsequently receives over € 10,000 in childcare benefits for their child.

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