Residence and work permission in the context of the Ukrainian invasion.
In the actual socio-political context in Europe, different measures are being promoted to enable all member states to bear the migratory burden caused by the Russian invasion of Ukraine. To this end, a legal instrument that is very useful in such cases is being used: international protection on humanitarian grounds.
To understand the facilities granted to Ukrainians to reside and work in one of the Member States of the European Union, reference should be made to Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and providing for the opening of temporary protection.
A decision is a rule of Community law which is directly and immediately binding, in its entirety, upon those to whom it is addressed. A decision may be addressed to the institutions, bodies, offices, agencies and officials of the Union, to one or more of its Member States or to individuals.
This decision exempts Ukrainian nationals from the visa requirement when crossing the external borders of the Member States for stays of no more than 90 days within a period of 180 days. These nationals who have fled Ukraine are expected to join their families or seek work in the Union under the short-stay visa waiver, while the other half will apply for international protection.
Reference is also made to Directive 2001/55/EC, which allows Member States to extend temporary protection to all nationals of third countries other than Ukraine who are legally resident in Ukraine and cannot return to their country of origin in a safe and durable manner. These persons could include third-country nationals who were studying or working in Ukraine for a short period of time at the time of the outbreak of war.
In any case, such persons should be admitted to the Union on humanitarian grounds without the need to be in possession of a valid visa or to have sufficient means of subsistence or valid travel documents guaranteeing safe passage back to their country or region of origin.
Ukrainian citizens have the right to move freely within the Union as travellers without a visa after being admitted to the territory for a period of 90 days. On this basis, they can choose the Member State in which they wish to enjoy the rights associated with temporary protection and to join their family and friends.
For the purposes of family reunification, the condition must be met that one of their family members has resided in Ukraine before 24 February 2022. Therefore, this decision establishes the status of family members for the following persons:
– the spouse of a Ukrainian citizen or his/her unmarried partner with whom he/she is living in a stable relationship
– unmarried minor children or the spouse’s children, whether in marriage, out of wedlock or adopted
– other close relatives who were living together as part of the family at the time the war broke out.
In the Spanish context, it is worth highlighting the authorisation given by Royal Decree 1325/2003, of 24 October, approving the regulations on the temporary protection regime in the event of a mass influx of displaced persons, to respond to problems such as that of Ukrainian migration and to develop legal instruments.
The Decree of PCM/170/2022 of 9 March 2022 is therefore issued, publishing the agreement of the Council of Ministers of 8 March 2022 extending the temporary protection provided for in Council Implementing Decision (EU) 2022/382 of 4 March 2022 to persons affected by the conflict in Ukraine who may find refuge in Spain. In short, this Decree has as its regulatory background both the EU Decision and the aforementioned Royal Decree.
Specifically, in this Decree, the Council of Ministers decided to grant temporary protection to the following persons who may find refuge in Spain:
(1) Ukrainian nationals who were residing in Spain before 24 February 2022 and who are unable to return to Ukraine due to the armed conflict.
(2). Third-country nationals or stateless persons who were legally residing in Ukraine on the basis of a valid legal residence permit (whether permanent or otherwise such as students) issued in accordance with Ukrainian law and are unable to return to their country or region.
(3) Nationals of Ukraine who were in an irregular situation in Spain before 24 February and who, as a result of the armed conflict, cannot return to Ukraine.
(4). Members of the families of the persons referred to in paragraphs 1 and 2 in the following terms: their spouse or unmarried partner; their unmarried minor children or their spouse’s minor children, without distinction as to whether they were born in or out of wedlock or adopted; other close relatives who were living together as part of the family unit at the time the war started and who were wholly or mainly dependent on them.
In view of the above, a procedure for granting this temporary protection to all the above-mentioned persons, who may be Ukrainians or third-country nationals legally residing in Ukraine, is established. In this case, the procedure is set out in Order PCM/169/2022 of 9 March, which develops the procedure for the recognition of temporary protection for persons affected by the conflict in Ukraine.
The procedure is initiated at the request of the person concerned, and the applicant must belong to one of the groups to which the temporary protection regime applies. Finally, the application for temporary protection is formulated by means of a personal appearance of the interested party before officials of the General Directorate of the Police; in reception centres; reception and referral of the Ministry of Inclusion, Social Security and Migration; or, where appropriate, before the police stations to be determined.
For this purpose, all documentation accrediting that they belong to the group to which the temporary protection regime applies shall be presented at that time. The address given in the application will be considered the usual address for the purposes of notifications. The interested party must inform the Asylum and Refuge Office of any change of address as soon as possible.
The personal data shall include, where possible, a mobile telephone number and an e-mail address of the applicant, who may expressly consent to the use of electronic means of communication with the Asylum and Refugee Office in connection with this procedure.
Police officers will take the fingerprints of applicants and issue them, at the time of application, with a receipt certifying the submission of their application, which will include the NIE assigned to them.
The application for temporary protection authorises the person concerned to remain in Spanish territory and to receive the social benefits managed by the Ministry of Inclusion, Social Security, for which the National Police will issue the corresponding documentation.
The procedure is completed with a resolution of the Ministry of the Interior agreeing to grant or deny temporary protection. This decision granting temporary protection includes the residence and work permit. In any case, the maximum period for issuing the decision is 24 hours and it will be notified by one or more of the following means:
(a) Electronic notification whenever possible.
b) Postal notification.
c) Notification by personal appearance at police stations or foreigners’ offices.
d) Notification at the reception, reception and referral centres of the Ministry of Inclusion, Social Security and Migration.
It is possible that, as a complementary measure, announcements on the decisions adopted may be published in the Official State Gazette and on the website of the Asylum and Refuge Office.
The duration of the temporary protection and, therefore, of the residence and work permits will be automatically extended for another year at the end of the first year of protection, provided that the reasons for which the protection was granted still exist.
The content of the Resolution granting temporary protection establishes several rights: the right to move freely within Spanish territory and to reside there freely; beneficiaries of temporary protection will be granted a residence permit; beneficiaries of temporary protection who justify the need to leave the national territory and do not have a passport or travel document, or who, having them, are not valid, will be provided with a travel document; beneficiaries of temporary protection will be granted administrative authorisation to work….
In conclusion, many facilities are provided for acquiring a residence and work permit for at least 1 year and, if the armed conflict persists, for another year. However, if the war between Russia and Ukraine ends, the conditions of the work permit after the first year will have to be governed by the general regulations.