26. However, none of these procedures provide for a right of residence simply by virtue of being
stateless. There is no obligation in law to consider a claim of statelessness within another
procedure, no instructions on how to make a claim for statelessness, and no specific training or
guidelines for authorities on how to identify or assess statelessness.40 The burden of proof in
statelessness determination and the standard of proof in applications for a ‘Foreigners’ Passport’
and a ‘Tolerated Stay Card’ are not established in law, however, jurisprudence has determined
that the threshold of substantiation should not be too high when statelessness is indicated in the
proceedings.41 Procedural safeguards, such as access to legal aid, interviews and interpreting also
vary depending on the procedure.42
27. Without legal residence on another basis, stateless people have access only to emergency medical
care and primary education, and may be dismissed from any basic social assistance they were
receiving as an asylum seeker if they are refused asylum.43 There is no legal basis for granting a
residence permit by virtue of statelessness. Rather, the enjoyment of rights by stateless persons
is subject to the same requirements that apply to other foreigners, including conditions relating
to legal stay or residence status. Stateless persons are only exempted from the requirement to
produce identification documents yet remain subject to all other requirements.44
28. Stateless asylum seekers are – until determination of their claims – entitled to remain in Austria,
benefit from basic social assistance and have access to a range of other rights. If their asylum
claim is refused, they lose the right to reside in Austria as well as access to most other rights. They
may also be fined for unlawful residence. If the authorities determine that they cannot be
removed, they have access to basic welfare support, but are not permitted to engage in wageearning employment. Stateless persons who do not have the legal possibility to return to their
country of origin or receive protection from another State might hence be trapped in a legal limbo
for months.45
29. Tolerated Stay procedures are usually lengthy and have a high threshold of substantiation to
prove that the person cannot be removed from Austria due to no fault of their own.46 If a
'tolerated stay' is granted, when removal is considered impossible for practical reasons not
attributable to them, stateless persons can apply for a 'special protection', after one year of
‘tolerated stay’, if they have a clean criminal record and do not pose a threat to public security.47
Individuals meeting these conditions are issued a 'special protection' residence permit valid for
one year, which can be renewed, provided the qualifying conditions continue to be met. An
individual may be able to acquire a one-year residence permit with access to the labour market a ‘Red-White-Red-Card Plus’ - after holding ‘special protection’ for one year if they can fulfil
certain conditions including a minimum income, health insurance, housing and a specified level
of German language skills.48
40
See https://index.statelessness.eu/country/austria
Szymanski, W. (2015), '§ 88 FPG 2005, Ausstellung von Fremden-pässen', in: Schrefler-König/Szymanski, Fremdenpolizei- und Asylrecht,
Manz, Wien. Case Law: VwGH 31.8.2017, Ra 2017/21/0024; VwGH 20.12.2013, 2013/21/0111; VwGH 3.12.1997, 96/01/0511.
42 See: https://index.statelessness.eu/country/austria.
43 See: https://index.statelessness.eu/country/austria.
44
UNHCR, Mapping Statelessness in Austria, January 2017, para 139.
45 UNHCR, Mapping Statelessness in Austria, January 2017, para 140.
46 UNHCR, Mapping Statelessness in Austria, January 2017, para 147.
47 Austrian Asylum Act, section 57(1); UNHCR, Mapping Statelessness in Austria, January 2017, para 151.
48 UNHCR, Mapping Statelessness in Austria, January 2017, paras. 151-155.
41
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