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Immigration from third countries for training purposes? Harnessing globalisation - a matter of opinion


As a lawyer working in the field of aliens law, one often encounters individual fates that are naturally emotional and in many cases make the incomprehension and disappointment of those affected at least understandable and often thought-provoking. Not all concerns are justified and enforceable. Many of them are. However, unease always arises when the reasons for which these requests are denied appear to be legally but not socio-politically comprehensible. In many places, there is a lack of legal regulations that would allow - reasonably controlled - immigration. Unfortunately, the potential of citizens from third countries is often not utilised on the basis of the existing legal situation.

The discussion of demographic development and its consequences for society is becoming more and more prominent. Although this is currently very present in the media, it is by no means new, even if no sustainable countermeasures have been taken for years. The demographic development is reflected in the development of the labour market, especially in the shortage of skilled workers. In view of the ever-advancing globalisation, which cannot be denied, it would be desirable to make use of the advantages for society resulting from immigration and to promote such immigration in a targeted manner.

The example of apprenticeship training is a good illustration of this.

The political discussions and proposals with regard to facilitating immigration for key workers, the highly qualified and those trained in shortage occupations are indeed going in the right direction and have led to sensible legislative changes. However, these are largely based on the assumption of immigration after completion of training. As a rule, however, starting an apprenticeship in Austria does not allow for immigration.

Despite several political attempts to create a "residence permit - apprentice", which could be comparable to a "residence permit - pupil", there has not been a corresponding change in the law to date - citizens from third countries do not receive a special residence title for an apprenticeship according to the Settlement and Residence Act ("NAG").

The prerequisite for completing an apprenticeship as a third-country national and the related employment permit is an already existing residence in Austria: According to section 4 para 2 of the Employment of Foreign Nationals Act ("AuslBG"), an employment permit for a foreign apprentice is only to be granted if the situation on the apprenticeship market permits this (labour market examination), no important reasons regarding the situation and development of the rest of the labour market oppose this and the prerequisites of section 4 para 1 no. 1 to 9 AuslBG are fulfilled. Decisive for the issue relevant to the present case is section 1 of this provision, according to which, in addition to several other exceptional cases, an employment permit requires in particular that the foreigner has a right of residence according to the NAG or the Aliens Police Act 2005, which does not exclude the exercise of employment, or has been admitted to the asylum procedure for three months and has de facto protection against deportation or a right of residence.

Immigration for the purpose of completing an apprenticeship in Austria has not been provided for by the legislator so far - possibly due to the fear that this residence title could be used as a backdoor for an initially legal but later illegal stay in Austria. However, there is no discernible difference to other residence titles in this respect.

It is not understandable why immigration under clearly defined, specifically controlled conditions should not also be possible for apprenticeship training in Austria. All the more so if the training is in a shortage occupation. Ideally, this could fill the demographically created gap. This gap is not only the result of a failed immigration and asylum policy, but in particular also the consequence of decades of consistently turning a blind eye and ignoring the demographic development, which will continue to worsen in the coming years if no targeted immigration takes place. The family structures that are now established in the majority will probably not lead to any change in the situation - who can afford more than two children and above all: who would want to do that nowadays, if there is still a desire to have children at all?

The number of people willing to take up an apprenticeship could easily be controlled by granting an employment permit for apprentices only after a corresponding labour market test and making immigration dependent on this. For third-country nationals residing in Austria, such a labour market test for taking up an apprenticeship - as described - is already provided for. Especially for apprenticeship occupations in which training companies are desperately looking for apprentices, an influx of suitable apprentices would be just as much in Austria's interest as their retention after completing their apprenticeship; after successful integration, there should be sufficient incentives for this (which also applies to pupils and students trained in Austria).

Against the background that the targeted immigration for the purpose of completing an apprenticeship training in Austria would only be advantageous for Austria, in my view the legal anchoring of such an influx by creating a "residence permit apprentice" would be urgently necessary. This could in particular help to reduce the existing labour market deficit in this sector. For lawyers, there are unfortunately limits to creativity here, which are in the hands of the legislator.