ASYLUM SEEKERS CAN BE ENTITLED TO FAMILY ALLOWANCES A number of families contacted the AOB because they have been living in Austria as asylum seekers for many years but are not receiving any family allowances. The legal situation regarding family allowances for asylum seekers is complex, as it has changed several times over the past few years, which makes matters difficult for the individuals involved as well as the authorities. Complex legal situation Since 1 January 2006, families with non-Austrian citizenship are only entitled to family allowances if they reside in Austria lawfully. However, the Higher Administrative Court has ruled that this new legal situation does not apply to asylum seekers whose asylum proceedings were already pending as of 31 December 2005. For these individuals, the old legal situation, whereby foreign families inter alia are entitled to family allowances if they have been present in Austria for an uninterrupted period of at least 60 calendar months, continues to apply. Authorities' arguments The asylum proceedings of the families involved were still pending as of 31 December 2005. However, they did not receive any family allowances. The relevant authorities argued that asylum seekers were unable to have permanent residence in Austria; instead, they merely had temporary residence until completion of asylum proceedings. The AOB took the opposite view: “permanent residence” implies actual physical presence and does not relate to whether the presence is lawful. Hence in the AOB’s opinion asylum seekers who have been living in Austria for more than 60 calendar months fulfill the legal prerequisites for permanent residence despite the fact that their right of residence is only temporary, and should therefore receive family allowances. Court concurred with AOB The Higher Administrative Court concurred with the AOB. It is irrelevant that asylum seekers do not have a residence permit entitling them to permanent residence: asylum seekers whose asylum proceedings were pending on 31 December 2005 and have been living here more than five years are entitled to receive family allowances and child care benefits. 36