The ÖH fought for: The general refusal of a residence permit for students from third countries due to a slight undercutting of the annually determined reference amount in the context of the examination of the existence of the necessary financial means is unlawful.
Student A from a third country has been studying successfully in Austria for some time. She is financially supported throughout by her parents and she has never been dependent on state support in Austria. Finally, A wants to have her student residence permit extended and submits an application to the Austrian residence authority. The authority rejects this on the grounds that A can only prove € 870 per month and not the benchmark of € 909 set for 2018.
A turns to the department for foreign students of the Austrian Student Union (ÖH). Here, she is assisted in filing an appeal against the negative decision. The competent regional administrative court upholds the appeal and grants A the right of residence. Now, however, the residence authority is taking another appeal to the Administrative Court (VwGH). Once again, the ÖH A supports the further legal procedure and finances the procedural support by an entrusted lawyer and aliens law expert.
The relevant European directive stipulates that applicants for residence permits for students must provide proof that they have the necessary financial means to cover their subsistence costs during the stay and the costs of the return journey without having recourse to the social assistance system of the Member State concerned. This may include, but is not limited to, funds from a scholarship, service contract, binding job offer, or financial commitment from a supporting organization or other person.
The Austrian Settlement and Residence Act (NAG) also stipulates that residence permits for students may only be issued if the alien’s stay could not lead to any financial burden on a territorial authority and refers to certain benchmarks under social security law that must also be met. Austria set the amount of € 909 for the year 2018.
In its ruling, the Administrative Court now clarifies that, although the Member States may set a reference amount for the necessary funds in this context, the assessment of whether the necessary funds are available must always be examined on a case-by-case basis. In its decision granting the residence title, the Regional Administrative Court took into account the fact that student A was regularly supported by her parents and that her previous stay in Austria had never led to a financial burden for a regional authority. According to the Supreme Court, this interpretation of the law was correct. The amount set by Austria was to be considered purely as a reference amount. If the applicant is able to prove that she has the necessary financial means to cover the costs for maintenance and for the return journey despite falling slightly short of this reference amount, the requirement of proving the “necessary means” is to be regarded as fulfilled.
A is financially supported by her parents and has been legally residing in Austria for a long time without ever having resulted in a financial burden on the local authority. Therefore, the proof of sufficient financial means to finance her stay in Austria was given.
The ÖH fought for: The general refusal of a residence permit for students from third countries due to a slight undercutting of the annually determined reference amount in the context of the examination of the existence of the necessary financial means is unlawful.
Further successes from consulting at www.oeh.ac.at/geschafft
