Over 5 years of continuous residence but no Daueraufenthaltsbescheinigung

[Anonymous]

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I have a question concerning how somebody should apply for the Art 50 EUV card if they have been living in Austria for more than 5 years consecutively but don’t hold a “Bescheinigung des Daueraufenthaltsrechts”.

The UK government guidance at https://www.gov.uk/guidance/living-in-austria states:

“If you have been living in Austria for more than 5 years
consecutively, your ‘Article 50’ card will be valid for 10 years.

You can exchange the long-term residence certificate for EU/EEA
nationals (Daueraufenthaltsbescheinigung) for your new ‘Article 50’
card for free.

If you have permanent residency rights in Austria but do not have a
long-term residence certificate (or pre-2006 equivalent), you may be
asked to bring supporting documents. These will need to show you have
been living in Austria.”

Section C (“Aufenthalt in Österreich als”) seems to be the relevant section of the Art 50 EUV application form, where you can choose between 32 (“Inhaber eines Daueraufenthaltsrechts”) and five other options (27-31), which all seem to apply to people who have not yet been continuously resident for five years. However, the accompanying guidance document states:

“You marked (32) Inhaber eines Daueraufenthaltsrechts (holder of a permanent resident status)? Then you need the original
• your Bescheinigung des Daueraufenthalts (certificate of permanent residence) OR
• your long term residence permit.”

i.e. there is no mention of the case where somebody has been continuously resident for over 5 years and thus has fulfilled the legal requirements for permanent residence, but does not hold a long-term residence certificate.

This invites the conclusion that people who do not have such a certificate should apply under one of the other categories (27-31), even if they have been living in Austria for more than five years. But this seems undesirable: firstly they may not meet the requirements attached to the other categories (e.g. income/employment status), which should be irrelevant if somebody already has permanent residency rights; moreover, even if they were successful they would only receive the 5 year card, rather than the 10 year card that the UK guidance suggests they would be eligible for.

In summary, the Austrian application form and accompanying guidance seem to be designed under the assumption that anybody who does not hold a “Bescheinigung des Daueraufenthalts” does not have a legal right of permanent residence. As I understand it (and as the UK govt guidance implies), this is not the case: The right of permanent residence is acquired automatically after 5 years of continuous legal residence. The “Bescheinigung” that you have the option (not the obligation) of applying for after this time is a certificate documenting a right you have already acquired, rather than a residence permit granting you a right you previously didn’t have.

E.g. the europa.eu website states at https://europa.eu/youreurope/citizens/residence/documents-formalities/eu-nationals-permanent-residence/index_en.htm

“As an EU national, you automatically acquire the right of permanent residence in another EU country if you have lived there legally for a continuous period of 5 years.”

There is a FAQ entry on this website (“I have 5 years legal residency but couldn’t get an appointment in 2020. Can I still get a 10 year Art 50 EUV card?”) but the answer is unclear and not very helpful (it also seems to conflate the certificate with the right of residence).

I have lived in Austria continuously since childhood (over 25 years, longer than Austria has been in the EU) but do not have a Daueraufenthaltsbescheinigung. By my reckoning, I should have fulfilled the condition of over 5 years of continuous residence based on the years I spent going to school in Austria alone. But it’s completely unclear to me how I should fill out the Art 50 EUV card application as it doesn’t seem to cater to this case, contrary to what the UK guidance states.

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