We’ve been active recently on behalf of a couple of seasonal workers in Summer 2024. We are very grateful to our contacts at the Ministry for the InteriorBundesministerium für Inneres The Bundesministerium für Inneres (BMI) / Ministry for the Interior (UK counterparty: the Home Office) is competent for public security, policing, border control as well as residency and citizenships. It is also responsible for elections and direct democracy instruments as well as the civil service in the respective provinces, as well as municipal level where they are not covered by the Federal Chancellery. for information and legal interpretation supplied.
Is a delayed opening or early closure of the ski season considered an important reason regarding absence of over 183 days in 12 months?
A seasonal worker in Tirol with a 5 year A50 card wrote that the “Saisoneröffnung” (opening of the ski season in a resort) was likely to be delayed. They are worried that they would not be employed and registered for insurance purposes before their cumulative absences exceeded the 183 days in the last 12 months.
Before receiving information from the BMIBundesministerium für Inneres The Bundesministerium für Inneres (BMI) / Ministry for the Interior (UK counterparty: the Home Office) is competent for public security, policing, border control as well as residency and citizenships. It is also responsible for elections and direct democracy instruments as well as the civil service in the respective provinces, as well as municipal level where they are not covered by the Federal Chancellery., we advised them to furnish proof of the numbers of days of absence during the last twelve months. This proof needs to be accurate to the day – particularly if you are close to the 183 day limit. BMI has confirmed that there is no specific form for the proof, but it is just required to be credible.
They also asked whether their residency permit (5-year Article 50 card) would already be invalid at the start of the season. The BMI responded that the card does not become invalid per se. However, under the Brexit Implementation Regulation (Brexit-DVBrexit Durchführungsverordnung The Brexit Durchführungsverordnung (Brexit Implementation Regulation) is the Regulation/ordinance in Austrian law that will cover issues about residency for British citizens after the end of the transition period.; Brexit-Durchführungsverordnung) which was issued in relation to settlement and residence matters under the Withdrawal AgreementWithdrawal Agreement The Withdrawal Agreement sets out the terms of the UK’s withdrawal from the EU and provides for a deal on citizens’ rights. It sets out a transition period which lasts until 31 December 2020. During this time you can continue to live, work and study in the EU broadly as you did before 31 January 2020. If you are resident in Austria at the end of the transition period, you will be covered by the Withdrawal Agreement, and your rights will be protected for as long as you remain resident in Austria. Any rights that are not covered by the Withdrawal Agreement will be the subject of future negotiations. https://www.gov.uk/government/publications/new-withdrawal-agreement-and-political-declaration , the authority responsible for settlement and residency (i.e. the Bezirkshauptmannschaft/Magistrat) is required to inform the BFA about the initiation of a procedure to end residency in where it becomes aware of an absence of more than six months (without an important reason) from Austria within a 12 month rolling period.
Any postponement of the opening of the ski season, or the early curtailment of the ski season does not constitute an important reason. The legal basis is derived from the Withdrawal Agreement read together with the Freedom of Movement Directive (Directive 2004/38/EC). The Settlement and Residency Act (NAGNiederlassungs- und Aufenthaltsgesetz The Niederlassungs- und Aufenthaltsgesetz (Residency and Settlement Act) is the Austrian law governing residency for foreign citizens in Austria.) transposes the Freedom of Movement Directive into Austrian law.
Can I upgrade to a ten year A50 card despite short periods without insurance coverage?
A seaonal worker in Vorarlberg contacted us. They have worked seasons in Austria since 2018, and hold a five year Article 50 card. Now they wonder if they can “upgrade” to a ten year card. On several occasions, they had no insurance for several days (their employment hadn’t begun or had ended). They wonder whether this might count against them. On each occasion, they did not register with AMSArbeitsmarktservice The Austrian Public Employment Service (AMS) is Austria’s leading provider of labour-market related services, and matches candidates with job openings and assists jobseekers and companies by providing advice, information, qualification opportunities and financial assistance. after the end of the season until their departure.
The right of permanence residence under the Withdrawal Agreement is derived from five years’ continuous legal residence. If their periods of non-self employed seasonal work were interrupted and they were not registered with the AMS, the residency authority (Bezirkshauptmannschaft) would have to check whether for the period of their interrupted insurance cover that the conditions were otherwise met (e.g. adequate funds as well as comprehensive healthSozialministerium The Austrian Ministry of Social Affairs, Health, Care and Consumer Protection is responsible for the following fields: The health care system Initiatives for people with disabilities Consumer protection Public health and medical issues Care and support The rights of consumers and the protection of their health Senior citizens’ policy Social policy Social insurance insurance cover).
If conditions for permanent residence are not met, but their periods of absence did not exceed 183 days in 12 months at any time, they could still renew in 2026 (another five year card). In turn, they could then upgrade that card once the requirement of five years uninterrupted legal residence is met.
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