Red-White-Red Card

Supreme Administrative Court has made it clear that the employment of third-country nationals using an RWR card is possible even if a business is still in the process of getting established

The Red-White-Red Card (hereinafter referred to as RWR Card) governs the criteria- and qualification-based immigration of third-country nationals to Austria. Requirements for issuing the RWR Card govern the granting a residence permit in combination with a work permit to third-country nationals who are highly qualified and needed on the Austrian labour market.

Interpretation of the criteria as defined in the Austrian Settlement and Residence Act (Niederlassungs- und Aufenthaltsgesetz, hereinafter referred to as NAG) and the Act Governing the Employment of Foreign Nationals (Ausländerbeschäftigungsgesetz, hereinafter referred to as AuslBG) has repeatedly occupied Austrian courts. For example, in the present decision of the Austrian Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) GZ Ro 2021/09/0002-4, the question required clarification whether an RWR Card may be issued if the company at which an applicant is to be employed has not yet commenced its business activities.


The RWR Card serves as a residence permit for third-country nationals according to Section 41 of the NAG. It is valid for two years and entitles holders to settle in Austria and to work for a specific employer.

Issuance of the RWR Card depends firstly on the general requirements for residence permits pursuant to Section 41 in conjunction with Section 11 of the NAG. Moreover, Section 41 NAG requires a favourable assessment by the Public Employment Service Austria (Arbeitsmarktservice, hereafter referred to as AMS).

Depending on an applicant’s specific situation, this assessment may consist of a statement by the respective regional AMS office pursuant to Section 20d para 1 subparas 1-4 of AuslBG, whereby AMS will confirm that the applicant is a particularly highly qualified person, a skilled worker in shortage occupations, or a key worker within the scope of Sections 12 to 12b subparas 1 and 2 of the AuslBG.

Alternatively, the RWR card can be obtained if the respective regional AMS office issues an expert opinion stating that the applicant is a self-employed key worker or a start-up entrepreneur meeting the requirements of Section 24 (1) or (2) AuslBG.

Supreme Administrative Court Ruling: Case Facts

An Iranian national applied for the RWR card in 2019. The applicant had a degree in medicine and ten years of professional experience as well as the required level of proficiency in German and English.

The applicant was to be employed by a company offering consulting and sales, with a gross monthly salary of EUR 3,300.00.

The employer, a limited liability company with its registered office in Vienna, was entered in the commercial register in 2019 and held a business licence for commercial business activities with effect from January 2020. However, the company did not conduct any business activities, had no business location, and no homepage. The business objective (to be pursued in the future) was the sale of food supplements. In its 2019 annual statement, the company reported assets in the amount of approximately EUR 17,300. Profits were not expected for another 18 months.

Both the AMS and the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) denied the applicant’s application as a key worker under section 12b(1) of the AuslBG.

Although the applicant met the required minimum number of points, the RWR Card was not approved in view of the fact that the company had not yet begun any business operations.

The Austrian Supreme Administrative Court overturned the contested ruling and addressed the two main points raised by the Federal Administrative Court in connection with the employer’s non-existing business activities: Hiring the applicant because of a ‘business necessity’ and the question of whether the company would fulfil its obligation of paying employees their salaries.

Business Necessity

The Federal Administrative Court argued that the precondition for granting an employment permit under Section 4b AuslBG is employing a third-country national due to a ‘business necessity’. However, no such business necessity exists if a company is not commercially active.

On this point, the Austrian Supreme Administrative Court stated that neither current jurisdiction nor previous case law supports the interpretation of requiring ongoing business activities. The work application would have to be denied only if the opening described in the job offer would not have been filled in the employer’s company, i.e. the potential employee would not have been hired at all, nor in the manner claimed.

Payroll Obligations

In addition, the Austrian Federal Administrative Court referred to Section 4(1)(2) of the AuslBG, according to which a requirement for granting an employment permit is the guarantee by the employer to comply with employment regulations. In the absence of business operations and a business plan on the part of the limited liability company in question, there were doubts that this employer would fulfil their obligation to pay a EUR 3,300 salary.

The Supreme Administrative Court, however, was unable to agree with this argument because the Federal Administrative Court had merely proceeded on the assumption that the company would presumably not make ‘a sufficient profit’ within the first 18 months.

However, according to the Supreme Administrative Court, it cannot be deduced from this that wages would definitely not be paid or that wage and employment regulations would not be complied with. For such a (negative) prognosis, this would require specific findings from which it could be sufficiently deduced that business activities will not be taken up at all by the company or that the company will show no interest in doing business at all, which, however, the Federal Administrative Court had not actually assumed.


With its ruling, the Supreme Administrative Court has made it clear that the employment of third-country nationals using an RWR card is possible even if a business is still in the process of getting established or if a specific job has not previously existed.

At the same time, the Supreme Administrative Court made it clear that by no means will it enable RWR card abuse e.g. by bogus companies. The arguments put forward by the authorities (lack of business necessity; doubts about compliance with payroll obligations) may certainly lead to the refusal of work permits for key workers, but this presupposes that any such facts of the matter must be clearly proven.