The Legal Status of Tolerated Aliens in Austria through the Lens of the Fundamental Right to Human Dignity

Abstract

The present contribution analyses in detail the legal status of tolerated aliens in Austria and the rights attached to it. Section I deals with the legal scope of said status. At the beginning, the historical development of the status of toleration and the legal grounds in the Alien Police Act (‘FPG 2005’) are described. Subsequently, toleration is classified according to the relevant EU Law. Section II focuses on the rights appertaining to the status of being a tolerated alien. These include access to social benefits, health care, the labour market and the perspective of regularisation. Since access to these rights is linked to the status of being a tolerated alien, a doctrinal approach demands a clear separation between tolerated aliens and other irregularly staying aliens. In a first step, the legal situation in Austria will be depicted. This analysis will show whether the Austrian legal situation is in conformity with EU law. In this context, Art. 1 of the Charter of Fundamental Rights (CFR) has particular relevance. It stipulates that human dignity is inviolable and must be respected and protected. The question whether a right to welfare entitlement for tolerated aliens can be derived from Art. 1 CFR will be considered.