On 4 March 2022, the Council of the European Union issued a decision to implement temporary protection for people displaced from Ukraine (“Decision”). The protection derives from a Council Directive[1] and applies from 4 March 2022.   Each Member State will need to implement local laws to give effect to the temporary protection measures (unless existing laws already provide equivalent or better protection) so there are likely to be some country specific nuances.  We expect to see more announcements over the coming days.

What freedom of movement rights do Ukraine nationals already have?

Ukrainian nationals are non-visa nationals for the purpose of the Schengen[2] area. This means they can enter the Schengen area without firstly acquiring a Schengen visa for travel and therefore can immediately cross the border into any neighbouring country (Poland, Slovakia, Hungary or Romania). Ukrainian nationals wishing to travel to Ireland (which is adopting this Decision) also do not require a visa in order to arrive in Ireland.

What form does the protection take?

While Member States can decide to offer more generous terms of temporary protection, as a minimum the protection should allow an eligible individual (see below for who is eligible) the right to work in an EU Member State as well as have access to medical care, education for minors, housing and social welfare. Formalities for evidencing these rights should be kept to a minimum.

The individual is not required to apply for the temporary protection in the first country of arrival. Upon entering the Schengen area, the individual can move to their final destination country within the Schengen area or Ireland and apply for the temporary protection in the country of their choice. However,  once a residence permit has been issued for that particular country, the individual cannot claim the temporary protection in another country later on (e.g they cannot claim temporary protection in Poland and then, in six months, move to France and claim temporary protection there).

Who is covered by the protection?

The protection applies to:

• Ukrainian nationals residing in Ukraine before 24 February 2022. Member States are also encouraged to extend protection to those who fled Ukraine not long before 24 February 2022;
• Stateless persons and nationals of third countries (other than Ukraine), who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022. Member States may also extend the protection to other persons who were legally residing in Ukraine and are unable to return safely to their country/region of origin;
• Family members of the above persons (spouses, unmarried partners in stable relationships, children and other family members who were part of the family unit prior to 24 February, for instance parents, grandparents etc).

 Who is not covered by the protection?

Protection does not extend to:

• Ukrainian nationals already residing outside of Ukraine prior to 24 February 2022;
• Non-Ukrainian nationals residing in Ukraine unless, at a Member State’s discretion, it decides to offer protection to such persons;
• Anyone in respect of whom there are reasonable grounds for regarding as a danger to the security of the Member State or who have committed serious prescribed crimes.

How long does the protection last for?

 The temporary protection lasts for an initial period of one year and, unless terminated, will be extended automatically by six monthly periods up to a maximum period of one year (so, two years in total).  The Commission will keep the situation under constant review and may, at any time, propose that the Council extend the temporary protection by up to one year.

 How do eligible individuals apply for the protection?

 The process of applying for temporary protection may vary between EU Member States.

Is the UK required to offer temporary protection?

 As the UK is not part of the EU, the Decision does not extend to the UK.  Ukrainian nationals wishing to relocate to the UK will still require a visa (subject to any change in approach by the UK government) but can apply for the visa in Poland, Romanian, Hungary and Moldova.

The bill in Poland

Currently, the Polish government has been working on the bill on assistance for Ukrainian citizens. According to its preliminary assumptions:

Stay

• Ukrainian citizens who have crossed the Polish border since 24 February 2022 and declare their intention to stay in Poland, will have the right to legal stay of up to 18 months, counting from 24 February 2022 (not from the date of entry to Poland) without any additional formalities;
• Ukrainians will have the opportunity to extend their stay for more than 18 months by applying for a temporary residence permit, which will entitle them to work in Poland without the need for a work permit;
• The bill also introduces mechanisms to temporarily legalise stay for persons already residing in Poland before 24 February 2022 whose visa or temporary residence permit is about to expire.

Employment

Ukrainian citizens will be able to start work legally almost immediately and the related formalities will have to be handled by the employer. Within seven days of a Ukrainian citizen beginning work, the employer will be obliged to inform the relevant District Labour Office about this fact. It will be possible to make the notification electronically, using the website praca.gov.pl portal. Performing work in this manner will be possible for the entire period of the legal stay of Ukrainian citizens who entered Poland on or after 24 February 2022.

Due to the ongoing legislative work, the above-mentioned assumptions may still be subject to change.

[1] Council Directive 2001/55 EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof

[2] Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.