The ÖH fought for the following: Students from third countries who live in Austria are also entitled to family allowance if they are at least mainly self-supporting.
P, a student from Bosnia and Herzegovina, has been living and studying in Austria since 2013. With a residence permit for students, she is staying in the country legally throughout. Her parents live abroad and support her with € 200 per month. In order to be able to finance her studies in Austria, P has been working part-time since the middle of 2014 in addition to her studies and thus mainly supports herself.
In 2017, P seeks advice from the social department of the federal representation of the Austrian Student Union (ÖH). She is now 24 years old and is in the 9th semester of her bachelor’s degree. She is advised to file an application for the retroactive payment of family allowance. This is because family allowances can be claimed retroactively for up to five years. In principle, the family allowance can be paid for the minimum duration of studies plus two tolerance semesters, but at the most until the 24th birthday can be obtained. In the case of completion of military or civilian service, the age limit is even the 25th birthday.
P follows the advice and applies for himself at the end of 2017. After just a few weeks, at the beginning of February 2018, the responsible tax office at the place of residence rejects P’s application without giving reasons. With the support of the ÖH, P files an appeal against the rejection decision. She has lived in Austria for years and has her habitual residence here. Furthermore, she states that her parents support her financially only to a small extent, which is why she applies for family allowance for herself during her studies.
In April 2018, the tax office issues a preliminary appeal decision and again rejects. The center of life interests was not in Austria and P’s closer personal relationship to the home country was to be assumed. Finally, P had stated to the tax office that she had not severed any personal ties with her family. The tax office further states that P is only in Austria for study purposes.
P again raises an appeal with the help of the ÖH. In the request for referral it is argued that according to the case law of the Administrative Court (VwGH) the existence of the center of vital interests is not excluded if the residence title is only issued for one year at a time, as is the case with students from third countries. P lives, studies, works in Austria and also plans her further professional career in Austria.
In May 2019, following an oral hearing, the Federal Fiscal Court will issue its ruling. It is pronounced that P has an own right to family allowance. She finances most of her life herself and her center of vital interests is clearly in Austria. This is not changed by the fact that, as a student from a non-EU country, she requires time-limited residence permits.
Thus, students from third countries who have their center of life in Austria are also entitled to family allowance if they are at least predominantly self-supporting. If the parents mainly finance the maintenance costs for their studying children or if the students still live at home, one parent is generally entitled to the family allowance if this parent has his/her habitual residence in Austria. However, students whose parents do not support them or do not support them predominantly may receive family allowance for themselves if they support themselves predominantly or completely. In these cases, the student’s or students’ habitual residence in Germany is relevant, not that of their parents.
The ÖH fought for the following: Students from third countries who live in Austria are also entitled to family allowance if they are at least mainly self-supporting.
Further successes from consulting at www.oeh.ac.at/geschafft
