Due to the Russian invasion in Ukraine, the European Union has – for the first time ever since 2001 – activated the so-called Temporary Protective Directive No 2001/55/EC (the “Directive”) by the Implementing Decision (EU) 2022/382 of 4 March 2022 (the “Decision”).
The latter was implemented in the Czech Republic by three laws, which took force on 21 March 2022, the directive already by the law No. 221/2003 on the temporary protection of foreigners (see below; in Germany, this is already implemented by § 24 AufenthaltsG). This means, that the Ukrainian refugees can evade asylum procedures including Dublin I-III rules (e.g.: asylum procedure in the first country in the EU, where they arrive, no secondary migration within the EU) and all questions, connected with the alternatives to seek shelter in different parts of the country of origin (for example in the Western parts of Ukraine).
The Decision allows as of 4 March 2022 refugees from Ukraine (Ukrainian citizens; their family members, albeit third country nationals (e.g.: the Russian wife or husband of an Ukrainian citizen from Kiev; Kharkiv or Mariupol); stateless persons and third-country nationals, who had a permanent residence in Ukraine prior to 24 February 2022 and who cannot go back to their country of citizenship or former residence) to temporarily settle and apply for temporary protection within in any member state of the European Union, except in Denmark. Denmark does not support this Decision in an utterly way of lacking solidarity within the EU (preliminary remark 26 of the Decision). Already William Shakespeare knew it: “Something is rotten in the state of Denmark”. Thus, Ukrainians and a category of Third country nationals have a free choice within the EU (except Denmark – however, Denmark has passed a similar law mid-March to give Ukrainians there as well residence and work permits); further, the Ukrainian refugees can work without a work permit and fall under the social security system in the EU for at least one year; a prolongation of this scheme under the Decision is possible up to two or three years. It must be understood, that the Decision is the minimal standard; every EU member state can set higher standards and has to implement its own rules according to the Decision.
The implementation of the Decision in EU member States except Denmark can cover as well refugees seeking protection in EU-states except Denmark (see preliminary point 14, second sentence of the Decision), who were already until 24 February 2022 and are currently still staying there on a basis of a short-term visa, with a long-term visa or in the visa-free regime as tourists, which cannot be extended and whose residence permit will expire in the next 14 days (this applies to all Ukrainians, residing currently in the EU, except Denmark, e.g. in Poland, Spain, Germany, Slovakia, Hungary and Italy, where their number is the highest). In the Czech Republic, those Ukrainian citizens can apply for a special long-term visa under the Decision, too, as they cannot go back to Ukraine. The law No. 65/2022 has introduced only the minimal standard, thus the protection was not enlarged to other refugees. Those can only make an application for asylum or under the Geneva convention of refugees. Rejections of applications can not be challenged in court (§5 cl. 2 sent. 2 of the law No. 65/2022 Coll., what seems to be unconstitutional and is in contradiction to § 17 of the Law on the temporary protection of foreigners). However, rejections will be issued with reasons for the rejection. Appeals with the commission under §§ 170a, b Law of Foreigners should be possible.
Ukrainian citizens and other refugees who fall under the same rules and who are arriving in the Czech Republic after 24 February 2022, may apply for a special long-term visa at a Regional Centre for Help and Assistance to Ukraine (KACPU). Not only does KACPU provide assistance regarding special long-term visa, but as well other services such as accommodation, employment options and insurance.
Ukrainian refugees under the Decision are currently entitled to stay in the Czech Republic for 90 days without a visa. However, they are entitled to apply under the Decision for a long term visa for up to one year, which contains a work permit. Other Czech rules, like the obligation to register with the Foreigner Police or queuing with the Labour office, have been abolished mid-March with new legislation being introduced.
In case of not Ukrainian nationals, who nevertheless arrived as a refugee from Ukraine, they may apply for a special long-term visa, but they have to provide the appropriate documentation to the Czech authorities in order to prove, that they are a family member of an Ukrainian citizen or that they have held a legal permanent residence in Ukraine with a residence permit issued before the invasion began and that they don´t have the alternative to go back to their country of citizenship or prior residence. It is not completely clear, what happens with refugees who are not Ukrainian nationals and who stayed in Ukraine legally on the basis of a temporary residence permit, for example up to three or five years for study or work. Currently, member States can include those third country or stateless nationals under the Decision; otherwise those persons have to go into the asylum procedure in an EU member state according to the Dublin-rules, which means in the first EU-country which they entered (unless they came by plane or by land to another EU-member State, as a rule in Poland, Slovakia, Hungary or Romania), or they can apply for protection under the Geneva Refugee convention. Or, according to the free-choice principle, those nationals should travel to those EU-member states, which opened the Decision to those third country nationals.
The Decision allows for those holding the protection under it, changing the country of residence within the EU, except to Denmark.
Summary for refugees from Ukraine
Upon their arrival to the EU, and to the Czech Republic in particular, Ukrainian refugees have to take into consideration several obligations to abide by and get done such as: health insurance and the application for a residence permit under the Decision. Other obligations, like a report of arrival to Police, an application for work permit, are slowly phased out, the Czech Republic has introduced new legislation mid-March. A long term visa will be granted for at least one year, containing a work permit, and can be prolonged up to three years.
Ukrainian citizens and refugees which fall under the Decision, enjoy a different regime from the asylum procedures and the regime under the Geneva Convention, and they have basically a free choice, where to reside within the EU, but they should remember not to go to Denmark, as the Decision does not apply there. However, similar rules apply under Danish law.
Author: bnt attorneys-at-law