Introduction
Residence
Work
Enforcement
Non-Ukrainians who fled Ukraine


Introduction

The Immigration and Naturalisation Service (IND) has announced that it has increased its efforts to accommodate people with Ukrainian nationality in the Netherlands, in response to the ongoing state of conflict.

This article provides an overview of recent developments regarding the legal residence and right to work in the Netherlands in this context.

Residence

Ukrainians were already allowed to stay legally in the Schengen area without a visa for a maximum of 90 days in a 180-day period, using a biometric passport. This is known as "free term". For a stay in the Netherlands that exceeds this free term, a Dutch residence permit is required. The current procedure seems to require an asylum application; however, the IND has suspended this procedure for granting residence permits.

On 4 July 2022, the IND announced on its website that Ukrainians can collect a so-called "proof of residence" from the IND. This proof will be provided with a sticker in their biometric passport or other relevant document. The IND will only issue a proof of residence if the person falls under the scope of the EU Temporary Protection Directive (Council Directive 2001/55/EC). The EU Temporary Protection Directive grants Ukrainians and third-country nationals (or stateless persons) who were legally residing in Ukraine before 24 February 2022 the right to temporary protection.

The EU Temporary Protection Directive sets minimum standards for granting temporary protection, such as the right to have decent accommodation and to access maintenance, medical care and education. The second condition for obtaining a proof of residence is that an individual must be registered in the personal records database (BRP) at a municipality in the Netherlands and have a citizen service number (BSN). The validity of the proof of residence is linked to the duration of the activation of the EU Temporary Protection Directive. The EU Temporary Protection Directive is currently effective until 4 March 2023. At present, there are two IND locations where a proof of residence can be collected: Den Bosch and Rijswijk.

In addition, the IND has announced that it will be accommodating when assessing an application for a residence permit or an extension thereof with regard to Ukrainians. The IND will take the situation in Ukraine and the personal situation of the person concerned into account in the assessment – for example, in a situation where no documents about the individual's identity or marital status can be submitted. The IND will also be accommodating regarding the obligation for Ukrainians to obtain a provisional residence permit (MVV) in their country of origin in order to travel to the Netherlands. Due to the closure of the Dutch embassy in Kyiv, it is possible to temporarily collect the MVV from a Dutch embassy or consulate in another country. A full exemption from the MVV requirement is also possible if a positive decision has already been taken on the application or if the person concerned is already in the Netherlands with a short-stay visa or during the free term, using their biometric passport.

Further, people from Ukraine are already entitled to a "living allowance" through the municipalities. The amount that each Ukrainian (both adults and minors) will receive is €60 per week per person. Ukrainians who are accommodated by private individuals receive an additional payment of €75 per week per person. Municipalities have freedom of policy regarding the way in which they pay and administer the living allowance, so it is possible that different rules will apply in different municipalities. In the case of private accommodation, it is important that the person has been registered in the BRP, because the living allowance can only be paid after registration.

Work

The above relates only to the right to legally reside in the Netherlands. Since it is unknown whether Ukrainians will be able to return to Ukraine soon, such people will want to know whether they are also allowed to work in the Netherlands during their stay.

Ukrainians have access to the Dutch labour market while the EU Temporary Protection Directive is effective. Following a decision dated 29 March 2022 (published on 31 March 2022), a temporary exemption from the work permit requirement has applied to the group covered by the EU Temporary Protection Directive since 1 April 2022.

This exemption is limited to paid employment for an employer. This means that the exemption does not apply to a client who has a self-employed person perform work. The aim is ultimately to protect the vulnerable group from risks of abuse, such as underpayment and bad working conditions. In that context, employers have an obligation to report pursuant to section 2a of the Foreign Nationals Employment Act. This notification obligation means that employers must report to the Employee Insurance Agency at least two days before foreign nationals commence work under the exemption.

Enforcement

The Dutch Labour Inspectorate may impose administrative fines on employers who do not comply with their timely reporting obligation. If a self-employed Ukrainian is employed (ie, not as an employee), the main rule of the Foreign Nationals Employment Act applies and it may be considered illegal employment if the person does not have the correct documents.

Non-Ukrainians who fled Ukraine

The EU Temporary Protection Directive also applies to non-Ukrainians who resided in Ukraine and have also fled as a result of the war. For this group, the rules are not yet clear.

For further information on this topic please contact David Wernsing at Maes Law by telephone (+31 85 902 12 70‚Äč) or email ([email protected]). The Maes Law website can be accessed at www.maeslaw.nl.