Updates on the legal residence and right to work in the Netherlands for people with the Ukrainian nationality

Updates on the legal residence and right to work in the Netherlands for people with the Ukrainian nationality

mr. D.O. (David) Wernsingmr. C. (Cigdem) Özcanon

The Immigration and Naturalisation Service (IND) has announced that they will be accommodating with regard to the stay of people with the Ukrainian nationality in the Netherlands, because of the terrible situation in Ukraine. In this blog you can read how the IND, and other relevant authorities will be accommodating. We will share the most recent developments regarding the legal residence and right to work in the Netherlands for people with the Ukrainian nationality. As immigration law is currently changing rapidly due to the situation in Ukraine, the blog will be updated regularly.

Residence

People with the Ukrainian nationality were already allowed to stay legally in the Schengen area without a visa for a maximum period of 90 days in a 180-day period on the basis of a biometric passport. This is also called the free term. This free term can currently be temporarily extended to a maximum of 180 days consecutively due to the situation in Ukraine. If the free term has already expired, a temporary extension of the free term is still possible. The IND has confirmed that Ukrainians will not face any problems if the free term (90 or 180 days) is exceeded.

For a stay in the Netherlands exceeding this extended free term of 180 days, a Dutch residence permit is required. The currently designated procedure seems to be an application based on asylum. But for now the IND has announced that they will not decide on this application. People with Ukrainian nationality will eventually receive a letter or other proof of the IND that they have legal residence.

In addition, the IND has announced that they will act accommodating when assessing an application for a(n extension of a) residence permit with regard to people with the Ukrainian nationality. The IND will take the situation in Ukraine and the personal situation of the person concerned into account in the assessment. For example in a situation that no documents about the identity or the marriage can be submitted. The IND also acts accommodating regarding the obligation for people with the Ukrainian nationality to obtain an mvv (provisional residence permit) in the country of their origin in order to travel to the Netherlands. Due to the closure of the Dutch embassy in Kiev, it is possible to temporarily collect the mvv from a Dutch embassy or consulate in another country. A full exemption from the mvv requirement is also possible if a positive decision has already been taken on the application or if the person concerned is already in the Netherlands with a short-stay visa or in the free term on the basis of the biometric passport.

People who have fled Ukraine can already register at a municipality in the Netherlands in the Basisregistratie Personen (BRP) and obtain a Citizen Service Number (BSN). This makes it possible to get access to (social) services, such as housing, medical care and education.

Furthermore, it is important to note that people from Ukraine are already entitled to get ‘living allowance’ through the municipalities. The amount that each Ukrainian (both adults and minors) will receive is € 60.00 per week per person. People from Ukraine who are accommodated by private individuals receive an additional payment of € 75.00 per week per person. Municipalities have freedom of policy regarding the way in which they pay and administer the living allowance, so it is possible that different rules will apply in different municipalities. In the case of private accommodation, it is important that the person has been registered in the BRP, because the ‘living allowance’ can only be paid after registration.

Council Directive 2001/55/EC, i.e. the Temporary Protection Directive, grants Ukrainians and third-country nationals (or stateless persons) who were legally residing in Ukraine before 24 February 2022, the right to temporary protection. This Directive sets minimum standards for granting temporary protection, such as the right to have decent accommodation, to provide for the maintenance, medical care and education.

Work

The above mentioned only relates to the right to legally reside in the Netherlands. Since it is unknown whether or not people with the Ukrainian nationality will be able to return to Ukraine soon, we notice that people with the Ukrainian nationality want to know whether or not they are also allowed to work in the Netherlands during their stay here, in order to be able to support themselves as much as possible.

Ukrainians have access to the Dutch labour market for the duration of the activation of the Temporary Protection Directive. By decision of 29 March 2022 – published on 31 March 2022 – it was announced that, as of 1 April 2022, a temporary exemption from the work permit requirement applies to the group covered by the Temporary Protection Directive. This exemption is limited to the paid employment for an employer. This means that the exemption does not apply to a client who has a self-employed person perform work. After all, the aim is to protect the vulnerable group from the risks of abuse such as underpayment and bad working conditions. In that context, employers have an obligation to report pursuant to Section 2a of the Wav. This notification obligation means that employers must report to the Employee Insurance Agency ('UWV') at least two days before commencing work that they are employing foreign nationals under the exemption.

It is conceivable that people who have fled Ukraine do not have all the documents needed to prove that they are protected by the Temporary Protection Directive and are therefore eligible for exemption. Therefore, a transitional arrangement until the 31st of May 2022 has been announced. The period until the 31st of May 2022 is linked to the extended free term of 180 days. During this transitional period, employment of all Ukrainians without a work permit will be allowed, unless they can prove their Ukrainian nationality. During the transitional period, the exemption will also apply to employment on the basis of traineeship or voluntary work. The period until the 31st of May 2022 can be extended each time by ministerial regulation for a period of three months. It is probable that this transitional arrangement will be extended.

Enforcement

The exemption as stated above applies retroactively until 4 March 2022. This is to help employers who unknowingly already employed people with the Ukrainian nationality in violation of the Wav. Employers who do not comply with their timely reporting obligation can be imposed an administrative fine by the Dutch Labour Inspectorate. If a self-employed Ukrainian is employed, i.e. not as an employee, the main rule of the Foreign Nationals Employment Act revives and illegal employment may be involved if the person does not have the correct documents.

Non-Ukrainians who fled Ukraine because of the war

We have now limited ourselves to the largest group, people with Ukrainian nationality. However, the Temporary Protection Directive also applies to non-Ukrainians who have resided in Ukraine and have also fled that country as a result of the war. For this group, the rules are not yet entirely clear. We will come back to this in the next update.

Do you have a question or do you need more information? Please feel free to contact our corporate immigration team: David WernsingDrenusha HoxhaCigdem Özcan or Thom Schot.

Information about the immigration law status of people with the Ukrainian nationality is changing rapidly. When there are updates, this blog will be adjusted to reflect the latest status. This blog has been published on the basis of the latest available information on March 31st, 2022.

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