Employment of Ukrainian refugees

Many of our clients want to help people who have fled Ukraine by offering them jobs. In some cases, there is already a connection with these Ukrainian nationals because they are employed at affiliated companies or at business partners of our clients. In some cases, however, the sectors concerned are sectors suffering from a shortage of skilled workers or sectors with possibilities of employing additional staff.

1. Entry and stay for 90 days "plus"

Ukrainian nationals do not need a visa to enter Germany. The current regulations permit entry for private or business reasons. Fleeing from war is also recognised as entry for private reasons. In principle, this regulation is limited to stays of 90 days. Due to the war, however, this period is currently simply being extended to 180 days if an application for an extension is applied for at the competent foreigners' authority, i.e. the foreigners' authority responsible for the place where the Ukrainian national is registered. In some places, such an application is not even necessary. This is the case if the responsible federal state has issued a general ruling to this effect. Now that Berlin has already issued a general ruling on automatic extensions until 31 May 2022, we are expecting that other federal states will follow.

It is important to note that such an extension is an extension of the stay for the original purpose. Since employment in Germany is not permitted during the visa-free stay of 90 days, the same also applies after an extension.

2. Work permit

In order to work in Germany, "third-country nationals", i.e. all those who are neither EU citizens nor citizens of an EEA state or Switzerland, require a residence title. Ukrainian nationals also belong to this group of people.

a) Granting of residence for temporary protection

A special residence title specifically for those fleeing from Ukraine was decided on 4 March 2022. The decision is based on a directive specifically created for such situations; this is Directive 2001/55/EC on the granting of temporary protection. In Germany, this Directive has been implemented in section 24 German Residence Act (AufenthG) which was activated when the Council decision ¬– also of 4 March 2022 – came into effect. German law does require an additional permit from the foreigners' authority for employment where a title has been granted under this special regulation in section 24 (6) German Residence Act (AufenthG). However, since the Directive on the granting of temporary protection itself also provides, in addition to temporary protection as such, for the possibility of employment in Article 12, one can hope that the required permit will, as a rule, be granted by the foreigners' authorities after exercising their discretion in accordance with the Directive. The Federal Ministry of the Interior and Community (BMI) has urgently recommended that the federal states note in the residence title when they grant the residence permit that employment is permitted. This is expressly to apply even where there is not yet any prospect of a concrete employment relationship.

Section 24 (6) German Residence Act (AufenthG) refers to section 4a (2) German Residence Act (AufenthG) with regard to the permit. This reads: 

If pursuing employment is banned or restricted by law, pursuing employment or employment going beyond the restriction requires permission; such permission may be subject to approval by the Federal Employment Agency under section 39. The Federal Employment Agency may restrict its approval. If permission does not require approval by the Federal Employment Agency, section 40 (2) or (3) applies accordingly to the denial of permission.

The restriction results from section 24 (6) German Residence Act (AufenthG) itself. However, section 24 German Residence Act (AufenthG) does not provide for approval by the Federal Employment Agency. This means that the last sentence – i.e. section 4a (2) sentence 3 – applies and the foreigners' authority should instead take into account the grounds for denial under section 40 (2) or (3) German Residence Act (AufenthG) which really apply to the approval of the Federal Employment Agency. This is a list of reasons which may concern the person of the employee (subsection (2)) or the employer (subsection (3)). In practice, this will not usually be of relevance. Much more interesting is the fact that there is no reference to section 40 (1) German Residence Act (AufenthG). This regulation prohibits the approval of any kind of employment in the framework of temporary employment (Arbeitnehmerüberlassung).

This means that an EU Council decision enabling the application of section 24 German Residence Act (AufenthG) would also make a decisive difference for the temporary employment sector as Ukrainian nationals would then also be allowed to be employed in the framework of temporary employment on the basis of this regulation.

b) Other residence titles

In addition to section 24 German Residence Act (AufenthG), the regular residence titles are also available as the basis for a residence permit. These are an option, in particular, where the Ukrainian nationals are skilled workers. Although the requirements which must be met for residence titles for the purpose of employment to be issued, regulated in sections 18 to 19 f. German Residence Act (AufenthG), have not been eased, in practice a very significant simplification applies. Normally, the residence title would have to be applied for in the form of a visa at the responsible consulate or embassy in the home country before entering Germany. Currently, however, the foreigners' authorities have been instructed to exercise their discretion under section 5 (2) sentence 2 German Residence Act (AufenthG) in such a way that they also grant applications for residence titles without submission of the corresponding visa if the other requirements are met.

aa) Requirements

Meeting the other requirements usually means that skilled workers require recognition of the equivalence of their foreign qualifications and a concrete job offer which must be proven by providing the employment contract and the Federal Employment Agency "job description" form completed by the employer. For the sake of clarification, the contract may be concluded subject to a residence permit being granted.

The foreigners' authority must obtain the approval of the Federal Employment Agency before issuing all long-term residence titles with a work permit. The only relevant exception is the EU Blue Card which is issued without the approval of the Federal Employment Agency. This does not pose a problem in principle. The main job of the Federal Employment Agency is to check the working conditions and to compare them with the usual standard in the region and sector. However, approval is always a knock-out criterion when it comes to temporary employment. In such cases, the Federal Employment Agency does not even have any discretion, but is required to deny its approval.

Experience has shown that the biggest practical difficulty is proving the qualification and its equivalence or having it recognised. In the case of skilled workers with an academic education, with a bit of luck they will find their qualifications on the "ANABIN list" of the Central Office for Foreign Education (ZAB). In this case, an individual assessment of certificates is unnecessary.

According to information provided by the Central Office for Foreign Education's itself, an assessment is possible for the following Ukrainian qualifications:

• Диплом бакалавра (Dyplom bakalavra)
• Диплом спеціаліста (Dyplom specialista)
• Диплом магістра (Dyplom mahistra)
• Диплом кандидата наук, Диплом доктора філософії (Dyplom kandydata nauk, Dyplom doktora filosofiji)
• Диплом доктора наук (Dyplom doktora nauk)

The qualification Диплом про перепідготовку (Dyplom pro perepidhotovku), by contrast, is a retraining/further education qualification which is not considered to be equivalent. The qualifications Диплом молодшого спеціаліста (Dyplom molodsoho specialista) and Молодший бакалавр (Molodsyj bakalavr) are also not considered to be higher education qualifications. However, professional recognition is an alternative option for these qualifications.

Once the equivalence of the qualification has been established, academics with an annual gross salary of more than EUR 56,400 can apply for the EU Blue Card; otherwise a title can be issued in accordance with section 18b (1) German Residence Act (AufenthG). An additional requirement is always that the working conditions correspond to the standard customary in the sector and region which also applies to German workers and that the employees are actually employed in accordance with their qualifications.

Skilled workers with vocational training can also obtain a residence title. The new regulation in section 18a German Residence Act (AufenthG) was created with the German Skilled Immigration Act (FEG) and is no longer limited to "bottleneck occupations" but now applies to all occupations for which vocational training is required.

For IT experts, a residence title can even be obtained without a formal educational qualification.

bb) Documents

In practical terms, it is important that proof of qualifications can be submitted to the competent foreigners' authority, in electronic form as a minimum requirement. The application documents must additionally always include

• application for a residence title (form)
• passport
• registration certificate (Meldebescheinigung)
• job description (form)
• employment contract
• certificate of qualification
• proof of equivalence – in the best case in the form of a simple screenshot of the ANABIN entry – or recognition
• health insurance card
• recent passport photo
• power of attorney if the application is to be submitted by CMS.

3. Conclusion

The most important basis for a residence title for the majority of people who have fled from Ukraine since 3 March 2022 is the special regulation in section 24 German Residence Act (AufenthG). We will keep an eye on the exact procedure over the coming weeks.

For the latest information, please visit our Ukraine-Russia Info Center. If you have any questions about dealing with the current situation and its impact on your company, our CMS Response Team will be happy to help.