Since the beginning of the Russian invasion of Ukraine, the right of residence has been adapted in EU and German law to legally simplify immigration conditions for refugees. Moreover, useful practical advice was published by the German Federal Ministry of the Interior and the foreigners’ authorities. The current legal situation (as of 22 March 2022) regarding immigration of refugees from Ukraine is summarised below.
On 7 March 2022, the Federal Ministry of the Interior issued the Ukraine Residence Transition Regulation (UkraineAufenthÜV). This initially regulates the residence of refugees from Ukraine without a residence permit in Germany with retroactive effect for the period from 24 February 2022 up to and including 23 May 2022. It goes further than the visa exemption for Ukrainian nationals in Schengen states.
Under it, the following groups of people do not need a residence permit (e.g. a visa or a residence permit) from 24 February 2022 until, initially, 23 May 2022 to enter and stay in Germany lawfully (s2 of the Ukraine Residence Transition Regulation):
Please note: employment in Germany is not permitted during the stay without a residence permit (s4a of the Residence Act).
Individuals in the categories set out above can apply for a longer-term residence permit until 23 May 2022 during their stay in Germany (s3 of the Ukraine Residence Transition Regulation).
Which residence permit can successfully be applied for depends on further requirements
The majority of refugees from Ukraine are likely to be eligible for a residence permit for temporary protection under s24 of the Residence Act. By implementing EU Council Decision 2022/382 of 4 March 2022, adopted by the EU Council, the EU Directive Temporary Protection Directive (2001/55/EC) was put into force, which in turn activated s24 of the Residence Act.
In a letter to the foreigner offices of 14 March 2022, the German Federal Ministry of the Interior (BMI) published detailed instructions on the granting of residence permits in under these provisions. Some of the most important points are summarised below.
If a person fulfils the requirements of a residence permit for temporary protection, s/he has a legal claim to it being issued. The foreigner office has no discretion over whether it is issued.
The following groups of people are entitled to the residence permit for temporary protection: (paragraphs 1-6 of the BMI letter):
Temporary protection is also granted to individuals who fled from Ukraine not long before 24 February 2022, when tensions increased, or who were in the EU shortly before that date (e.g. on holiday or for work) and who cannot return to Ukraine as a result of the war ( see paragraph 6 of the BMI letter).
Residence permit applications must be submitted to the local foreigner office: This is the foreigner office at the refugee’s registered place of residence in Germany. If s/he has not yet registered residence in Germany, s/he should apply at the foreigner office at the place where s/he is staying in Germany (paragraph 7 of the BMI letter).
The application procedure differs slightly depending on the place of application and the foreigner office. In Berlin, the application can be submitted online here.
After submitting the application, applicants initially receive a ‘transitional certificate’ (Fiktionsbescheinigung, s81 paragraph 3 sentence 1 and paragraph 5a of the Residence Act, paragraph 9 of the BMI letter). In Berlin, this is issued automatically as a PDF document after the application has been submitted online. Later, applicants in Berlin receive an appointment at which the long-term residence permit is then usually issued. In other municipalities, however, a personal visit to the Foreigners’ Registration Office is sometimes necessary to apply for and receive the transitional certificate.
Residence permits are granted retroactively from the date of entry into Germany, at the earliest from 4 March 2022, until 4 March 2024 (paragraph 9 of the BMI letter, Article 4 of EU Directive 2001/55/EC, s26 paragraph 1 of the Residence Act).
The transitional certificate and the longer-term residence permit not only entitle the refugee to legal residence in Germany, but also include the right to work in Germany (s24 paragraph 6 of the Residence Act, s31 of the Employment Regulation, paragraphs 9 and 11-12 of the BMI letter).
Consequently, as soon as the transitional certificate with the note ‘Erwerbstätigkeit erlaubt” or ‘Erwerbstätigkeit gestattet’ (work permitted) is made available to the refugee (in Berlin, for example, this will usually be the case immediately after the online application as a PDF document), refugees may work in paid employment or on a self-employed basis in Germany (s4a of the Residence Act).
Employers may only employ refugees from Ukraine and organisations may only engage them if they are first presented with a transitional certificate and later with the long-term residence permit which permits work. They must keep a copy of the residence permit permitting employment for the duration of the employment or contract (s4a paragraph 5 of the Residence Act).It is advisable to keep it for longer.
Please note: refugees are not allowed to work or be employed or commissioned in Germany before a residence permit or transitional certificate permitting work has been issued.
Refugees can register as refugees (for Berlin see e.g. here) in order to receive basic welfare benefits including accommodation, food and medical care (s1 paragraph 1 no. 1a of the Benefits for Asylum Seekers Act, pp. 7-8 of the BMI letter). However, they do not have to register (although some foreigners authorities require refugees to register in order to be able to apply for a residence permit). Otherwise, refugees are entitled to basic welfare benefits even after the residence permit has been issued (Sec. 1 para. 1 no. 3 Benefits for Asylum Seekers Act , paragraphs 7-8 of the BMI letter).
Please note: refugees do not enjoy the right to stay in the place they want in Germany. After registering as refugees, they receive an allocation decision from the authorities to a place in Germany where they are allowed to reside (s24 paragraphs 3 – 5 of the Residence Act). This happens particularly often in Berlin now. However, this residence requirement can subsequently be waived, for example, for family reasons or if refugees take up employment, study or training (for more details, see paragraphs 9-11 of the BMI letter).
The Federal Ministry of the Interior has now clarified (paragraph 8 of the BMI letter) that changing to a different residence permit is possible. This means, for example, that a refugee who already holds a residence permit for temporary protection can also later apply for an EU Blue Card under s18b paragraph 2 of the Residence Act, provided s/he meets the requirements for it being issued. A Blue Card can be advantageous, as it enables its owner to apply for permanent residence in Germany after only 21 months if further requirements are met, especially B1 level German language skills (s18c paragraph 2 of the Residence Act).
Third-country nationals who have fled Ukraine and who do not fulfil the requirements for the eligibility described above are not entitled to a residence permit for temporary protection, even though they can legally stay in Germany until 23 May 2022 (under s2 of the Ukraine Residence Transition Regulation. This applies in particular, for example, to third-country nationals who do not have Ukrainian citizenship but who have a Ukrainian residence permit and who can safely and permanently return to their country of origin.
If they wish to remain in Germany despite this, they can apply for a ‘regular’ residence permit during their stay in Germany (under s3 of the Ukraine Residence Transition Regulation), provided they fulfil the conditions for issuance. For example, a residence permit for the purpose of employment (s18 et seq. of the Residence Act) can potentially be applied for if the third-country national holds an employment offer in Germany.
The Federal Ministry of the Interior has set up an FAQ on entry from Ukraine and a help portal. The local foreigner offices also often provide information on the application process on their websites.
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