Written by: Till Heimann, Julia Uznanski, Kliemt.HR Lawyers
The conflict in Ukraine means that international employers face questions about employing Ukrainian nationals. There are also pressing questions regarding entry, residence and work opportunities in Germany.
Ukrainians arriving in Germany
Ukrainian citizens can enter Germany without a visa. Even if they currently enter Germany by land via the Schengen borders (e.g. Poland) and there are usually no border controls, they legally need a biometric passport that meets the requirements of the International Civil Aviation Organization (ICAO). However, legislation on this subject is planned.
After entering the Schengen area, Ukrainians are allowed to stay in the Schengen area for 90 days within a 180-day period. The EU Schengen Calculator simplifies the calculation of authorized visa-free stay. The stay can be extended for another 90 days upon application to the local foreigners’ office where the Ukrainian citizen is staying in Germany (under Article 40 of the German Residence Regulations); Article 20(2) of the Convention implementing the Schengen Agreement (SDÜ); and communication from the German Federal Ministry of the Interior).
The Länder can provide for an automatic extension without request by a general decree (Berlin, for example, has introduced an extension until May 31, 2022 under certain conditions). Please note: During the visa-free stay, employment in Germany is not permitted.
Long-term residence and work
For a longer stay, Ukrainian citizens need a residence/work permit (Aufenthaltstitel), and to work, they need a residence/work permit that explicitly allows them to perform their specific job. (s4a of the residence law). Citizens of Ukraine have the following options for obtaining a permit:
- In the coming days, the Council of the EU could adopt a decision under the EU directive on temporary protection in the event of a “mass influx”, under which displaced Ukrainian citizens will be granted protection temporary for an initial period of one year. The Commission has already presented a proposal in this regard. We therefore do not currently recommend filing an asylum application. Ukrainians could then apply to the authorities for foreigners for a residence permit in accordance with Article 24, paragraph 1, of the Residence Law; however, employment would still require an additional permit issued by the Aliens Office.
- Previously, Ukrainians who otherwise fulfilled the conditions for a residence permit had to apply for a national visa at the German Embassy in Kyiv before entering Germany (Article 5 of the Residence Law). The Federal Ministry of the Interior currently considers this to be unreasonable and has therefore instructed the foreigners’ offices to also allow applications after arrival in Germany. However, please note that a registration certificate is usually required for this purpose, therefore Ukrainian nationals must register with the responsible registry office after arrival.
- The visa navigator of the Federal Foreign Office can be used to search for relevant visas. For qualified professionals (recognition of Ukrainian university degrees can be checked in the Anabin database, only available in German), the EU Blue Card or a residence permit for professionals with a university degree (Article 18b of the residence law) are possible options. Further information can be found in the FAQ of the German Federal Ministry of the Interior on entry from Ukraine.
German employers with Ukrainian employees (conscripts)
If German employers are already employing Ukrainian nationals called up for military service, the question arises as to what will happen to the German employment relationship. Due to the threat of punishment for not responding, it is to be expected that there will be strong pressure to act.
The legal situation is not clear, therefore the parties are well advised to agree by mutual agreement, for example, a (temporary) suspension of the employment relationship. Please note the following:
- Military service abroad does not lead to an automatic termination of the employment relationship.
- There is no legal obligation to suspend employment. In addition to German conscripts, the corresponding German protective regulations (Section 16 of the Occupational Health and Safety Act) only apply to conscripts from signatory countries of the European Social Charter 1961. An application extended to versions of the Charter, to which Russia and Ukraine are also signatories, is not (yet?) legally established.
- Ukrainian nationals will be able, unless excluded in their employment contract, to invoke a temporary impediment to the performance of their work (Article 616 of the Civil Code) which prevents the employer from terminating the employment relationship for a reasonable duration. The German Federal Labor Court once considered that two months of absence was reasonable. Due to the unclear development of the situation in Ukraine, hardly anyone will be able to give a prediction at this time.