Dutch firms advised on risks associated with employing Ukrainians

Western European governments, companies and individuals are keen to help six million Ukrainian refugees expected by the European Commission (EC) to head west to escape Russian brutality as it continues its invasion. These often desperate people will want to work and try to rebuild their lives before they can hopefully return home, and right-minded employers will want to hire these often highly skilled people when and where possible. The Netherlands will be one of the favoured destinations for Ukrainian refugees because of its open society and generally cosmopolitan and multilingual population. But Dutch risk managers and their colleagues in HR and legal need to do their homework before hiring Ukrainian refugees to avoid breaking existing laws, advised leading Dutch law firm Dirkzwager Legal and Tax. Stefan Kleijer and Boy Stenden, lawyers at the firm, pointed out that employers need to tread carefully when planning to hire refugees from outside the EU. The lawyers said the main rule for people outside the EU/EEA and Switzerland is that they can’t just live and work in the Netherlands. They must, in principle, apply for a residence and work permit from the Immigration and Naturalisation Service (IND). “A different procedure applies to refugees (asylum seekers). They can apply for asylum in the Netherlands. Those who applied for asylum more than six months ago and are awaiting the IND's decision can work 24 weeks a year in paid employment,” they added. Ukrainians who want to live and work in the Netherlands must apply for a residence and work permit (or asylum). In 2017, an exception to this main rule was made in the Association Agreement (Regulation 2018/1806). It states that Ukrainians who hold a biometric passport are allowed to travel freely through the EU for 90 days without a visa/residence permit (the so-called 'free period'), explained Kleijer and Stenden. “The war is causing Ukrainians to flee the country en masse, and this is expected to increase. Based on the Association Agreement, Ukrainians do not have to start an asylum procedure and/or apply for a residence and work permit immediately upon arrival in an EU member state. During the first 90 days, they are free to come and go in the EU,” they continued. However, what if they still can’t return to Ukraine after 90 days? “If nothing were to be arranged for this, an asylum procedure would have to be started or a residence permit applied for within 90 days. However, the EU member states have agreed that an exception should be made for Ukrainians. On 2 March 2022, the European Commission proposed to activate article five of the Temporary Protection Directive (Directive 2001/55/EC) for refugees from Ukraine by means of an implementing decision. The Council of the European Union (the Council) adopted the implementing decision establishing temporary protection on 4 March 2022,” explained the lawyers. Refugees from Ukraine for whom temporary protection is intended are given a special residence status. The lawyers explained that, based on that special status, they have the following rights: Work as an employee or self-employed Access to adult education, vocational training and work experience, and Ukrainians under 18 years of age have access to at least public education Decent housing or means to find housing Social assistance, financial support and medical care in case of insufficient means. The temporary protection is for one year and can be extended twice by six months. After that, the EC may propose to the Council that the temporary protection be extended for a further year. It is hoped that the IND will soon provide more clarity on which residence permit Ukrainian refugees can apply for within that framework. Until then, the refugee does not have to worry. This also applies to cases where the free period of 90 days has expired, which will soon be extended to 180 days, said Kleijer and Stended. The bad news is that Ukrainian refugees are currently not allowed to work in the Netherlands for the time being, unless the Ukrainian has a residence permit or work permit with the notation 'work allowed' (or he/she applied for asylum more than six months ago). New regulations regarding the special residence status and the related permit are currently being worked on, explained the lawyers. But there are exceptions that potential employers can consider, they advised. “Under certain circumstances, it is also possible to apply for one of the existing residence and work permits. To illustrate: an employer who is already a recognised sponsor with the IND and wishes to employ a (highly skilled) refugee from Ukraine at a gross monthly salary of €5,000 can apply for a residence permit to work as a highly skilled migrant,” advised Dirkzwager. “The target period the IND uses to decide is two weeks. The question is, however, whether this route, including all the conditions, costs and the decision period, will not actually be a time-consuming one. Perhaps the new residence permit based on the special status will still be the quickest and easiest route to employ Ukrainians,” concluded the firm.

Dutch firms advised on risks associated with employing Ukrainians

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