What are the beneficiaries and rights under the temporary protection rules as per Law 122/2006?
With war waging in Ukraine, immense pain and suffering has been inflicted upon the Ukrainian population. Those who could (and wanted) left in the face of the Russian aggression, generating the largest influx of refugees in recent European history. Neighbouring countries, such as Romania, Poland and Republic of Moldova, had to adapt almost overnight to a new reality: the reality of a war at their borders.
According to the United Nations (UN) High Commissioner for Refugees data portal, as of 7 June 2022, more than 7.2 million refugees have left Ukraine, with over 2.3 million returning. Additional figures from the UN show that:
- Poland has taken in over 3.8 million refugees;
- Romania over 613,000;
- Moldova (non-EU) over 491,000;
- Hungary over 731,000; and
- Slovakia over 484,000.
It is worth noting that some estimates indicate that up to 90% of the refugees are women and children.
As days passed, the number of people fleeing war and crossing the borders into Romania (directly from Ukraine or from the Republic of Moldova) rapidly increased. While civil societies mobilised in an instant, with donations pouring in and being transported to the northern border points from the very start of the war, it should be noted that the European Union also stepped up to help.
Thus, on 4 March 2022, the EU Council issued Council Implementing Decision (EU) 2022/382, establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of article 5 of Directive 2001/55/EC. This had the effect of introducing temporary protections (CID 2022/382) for Ukrainian refugees, although it was up to the member states to clarify the procedure of obtaining such protections and what it entails. Two weeks later, the Romanian government passed Government Decision No. 367/2022, establishing certain conditions for ensuring temporary protection and amending and supplementing or updating certain regulations (GD 367/2022). While the main provisions regarding the temporary protection were already implemented by Law 122/2006 on asylum in Romania (Law 122/2006), GD 367/2022 sets out the specific and concrete conditions for ensuring temporary protections.
With the legislation changing as fast and as unpredictably as the war itself, and the public officials applying the new laws with no previous experience or guidance, there was concern that the practical application of the rules would be less than what was hoped for by the Romanian legislation. However, any shortcomings of public officials were well compensated for by the tremendous efforts of numerous volunteers helping Ukrainians.
For instance, when assisting refugees, some centres have offered food and drinks for the applicants, as well as playgrounds or rest areas, while the whole procedure of verifying the legal documents and requirements mandated by law is carried out together with volunteers speaking Ukrainian, English, Russian or Romanian.
Given the influx of millions of refugees into the European Union, it should be noted that a key provision of the temporary protections is the right to work. With that in mind, this article outlines some of the major elements and matters related to the temporary protection regime now being implemented in Romania.
GD 367/2022 covers the rights of:
- Ukrainian nationals residing in Ukraine 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;
- family members (as defined by article 2(4) of CID 2022/382) of the aforementioned persons;
- stateless persons and nationals of third countries other than Ukraine who were holders of a valid permanent residence permit in Ukraine and who are unable to return to their country of origin; and
- Ukrainian citizens who were already in Romania before 24 February 2022.
It is important to remember that GD 367/2022 covers only the rights of those who did not apply for asylum in Romania, as this regime is meant to be an urgent fix for the influx of refugees. It is not meant to address issues related to those seeking asylum, with procedures that are fairly complicated and lengthy. Currently, the duration for the temporary protections is until 4 March 2023. Such period may be extended automatically, if the reasons for such protections persist, for two periods of six months each.
What are the beneficiaries and rights under the temporary protection rules according to Law 122/2006?
- to be issued a document through which they are granted permission to remain in Romanian.
Such document is issued by the General Inspectorate for Immigration, free of charge. The applicants must file a request with the local immigration service office, with the procedure being quick and straightforward. As per GD 367/2022, the applicants must provide only the document based on which they were allowed to enter Romania (for instance, their passport, valid ID or birth certificate). The residence permit is issued on the spot.
This document is going to assign a personal identification number to the beneficiary of the temporary protections and represents the basis on which the beneficiary can access all the rights provided below. Importantly, this number is the one to be used with regards to employment matters and issues;
- to be informed, in writing, in a language which they are presumed to understand, on the provisions concerning temporary protections;
- to be employed by natural or legal persons, to carry out independent activities, abiding to the rules applicable to the profession, as well as activities such as education opportunities for adults, vocational training and practical work experience as stipulated by law. Ukrainian citizens who come from zones of armed conflict and who do not have documents proving professional qualifications or work experience necessary for employment may be employed based on their statement on own responsibility that:
- they meet the conditions of professional qualification and work experience required for the job; and
- they have no criminal record which would render them incompatible with the activity they are to perform.
Such statement forms the basis for entering into an employment contract, regardless of whether the person contacts an employer directly or through counseling services provided by the state. Understandably, however, there are certain professions that may not be exercised based on such a statement (eg, physicians, dentists, pharmacists, veterinarians, lawyers, tax advisors, architects or biologists).
Before starting work, the Ukrainians who do not have such documents may go to their local county employment agencies in order to be registered. Such registration may happen based on the identity card, passport or other identity document. Once registered, the persons have free access to the services and measures provided by Law No. 76/2002 on unemployment insurance system and employment rights, as amended and supplemented (eg, unemployment benefits, courses for vocational training);
- to benefit, if requested, of the necessary assistance for their upkeep, in case they do not have the necessary material resources;
- to receive free primary medical assistance and emergency hospitalisation, as well as medical assistance and free treatment in case of acute and chronic illnesses that put their life in imminent danger;
- to receive temporary protections and those with special needs have the right to receive adequate medical assistance.
In this case, they benefit from the same medicines, health care materials, medical devices and services included in the national health programs as insured Romanian citizens, without having to pay the social health contribution, the personal contribution for the medicines granted in the outpatient treatment as well as being exempted from co-payments; and
- to be given access to the state education system under the conditions provided by law for Romanian citizens, in the case of beneficiaries of temporary protections who have not turned 18 years of age. Minors have the right to education in Romania under the same conditions and equal funding as Romanian children, as well as the right to:
- free accommodation in boarding schools;
- a food allowance;
- school supplies;
- shoes; and
Initially, Ukrainian minors gain the status of "audients", until their studies are recognised by the county school inspectorates and, if the case may be, they pass certain examinations established to evidence equivalence of studies. After the later moment, they are considered pupils.
Additionally, the Ministry of Education was empowered to supplement the number of students in state universities with up to 20% to accommodate the students who were studying in Ukrainian universities before the war.
These benefits are an excellent starting point in helping Ukrainian refugees. Many key needs are addressed including employment rights, health care and education. With more international experience in dealing with the afflux of refugees over the coming months, and more resources being made available from Brussels, it is expected that the protections granted to Ukrainian citizens will only improve.
For further information on this topic please contact Charles Vernon at Vernon|David by telephone (+40 2131 156 54) or email ([email protected]). The Vernon|David website can be accessed at www.vdalegal.com.