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03-28-2022Article

Update Employment Law April 2022

Employment of Ukrainian refugees

Several millions of Ukrainians have been forced to leave their homeland and have fled westwards to the EU. Many have also already arrived in the Federal Republic of Germany. The question now arises of whether or not Ukrainian nationals can be employed in Germany. Many companies would like to help the refugees and offer them employment. In some cases employment relationships already existed with the Ukrainian branch of a German company, while in other cases there is simply a need for workers. 

Legal residence in Germany

In principle, Ukrainian nationals can enter the Schengen area - and thus also Germany - with a biometric passport and can remain here for 90 days within a 180-day period. They are not however permitted to engage in gainful employment. For this, they would require either a Schengen visa or a national visa for longer stays (in each case with permission to engage in gainful employment). Therefore, in order to work or to stay longer than 90 days, Ukranian nationals would require in theory a residence permit with permission to work. 

The Federal Ministry of Interior has issued an ordinance on the temporary exemption from the requirement of a residence permit for persons displaced from Ukraine. However, this was valid only up until May 23, 2022. It has now been extended until August 31, 2022.  It only exempts people from the requirement of a residence permit but likewise does not permit gainful employment. 

Permission to reside for the purpose of temporary protection

Taking up gainful employment always requires a residence permit. Specifically, the residence permit pursuant to Section 24 Residence Act (AufenthG) (permission to reside for the purpose of temporary protection) comes into question here. Following the coming into force of the Resolution on the Acceptance of Displaced Persons pursuant to Article 5 (1) of Council Directive 2001/55/EC, the groups of persons stated therein (Ukrainian nationals whose place of residence was in Ukraine prior to February 24, 2022, stateless persons and nationals of third countries other than Ukraine who enjoyed international protection or equivalent national protection in Ukraine prior to February 24, 2022, and family members of the first two groups of persons stated) can apply for a corresponding residence permit under Section 24 AufenthG. 

When issuing this residence permit, the aliens’ authorities are required by the Federal Ministry of the Interior to make an immediate entry into residence permit stating that employment is allowed. Employment can be taken up immediately following the issuance of the residence permit. No further approvals by other authorities are required. 

Other possible residence permits

In addition, the other residence permits possible under the Residence Act can be considered. For example residence permits are available for persons with particular qualifications, e.g. the EU Blue Card. These are of course also available to Ukrainians who meet the corresponding requirements.

Generally speaking, a requirement for residency in Germany and for an application to the local aliens’ authority in Germany is that the person has already entered Germany on a corresponding national visa, issued by the responsible German diplomatic mission. However, this requirement has been suspended in the current situation. This means that displaced persons can apply for a long-term residence permit at their place of residence in Germany even without a corresponding national visa from Ukraine. 

It should be noted however that the processing time for the above is much longer and more complex in practice than that of a permit issued pursuant to Section 24 AufenthG. The number of documents to be submitted is higher. This entails not only an element of uncertainty for the applicant but also it prevents a person from taking up employment quickly. This is only possible once the residence permit has been granted. 

Conclusion

In practice, it is therefore advisable to apply for a residence permit pursuant to Section 24 Residence Act so as to be able to take up employment quickly. There are no restrictions in terms of gainful employment. Should a person however wish to change from Section 24 AufenthG to another residence permit at a later date, this is possible if the general preconditions for granting are satisfied.

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