EUROPEAN UNION and UKRAINE: EU Adopts Temporary Protection Directive for Ukrainian Citizens, Initial Information Announced

March 4, 2022

In a unanimous vote yesterday, the European Union (EU) ministers agreed to implement the Temporary Protection Directive (TPD) (2001/55/EC) to provide Ukrainian refugees with a unified immigration option throughout the EU.

First drafted in 2001 in response to the high number of refugees entering Europe as a result of the Yugoslav Wars, the TPD was introduced “to give immediate protection to persons who need it and to avoid overwhelming Member States’ asylum systems.”

Yesterday’s vote marked the first time the EU will invoke these measures.

General TPD Framework

Very high-level information about the TPD’s framework has been confirmed by the authorities; however, the actual implementation, application process, and requirement details have yet to be announced. In addition, it is important to note that each EU Member State will have the ability to integrate the TPD’s standards into their own national immigration system and legislation. As such, there will be some country-specific nuances from each Member State (to be confirmed at a later time). Additional announcements from both the EU governing bodies and individual Member States are anticipated in the upcoming days.

Who will be Covered

The TPD will provide temporary protections to the following three (3) categories of individuals:

  1. Ukrainian citizens residing in Ukraine before 24 February 2022 – note that each Member State will have the ability to determine whether the following categories of individuals will be eligible for TPD status under the country’s own national legislation:
    • Third-country nationals or stateless persons who were legally residing in Ukraine prior to 24 February, and who hold permanent residence status in Ukraine, and who are unable to return in safe and durable conditions to their country or region of origin.
    • Third-country nationals or stateless persons who were legally residing in Ukraine while holding any other legal residence status (e.g. students, short-term work permit holders, etc.), and who are unable to return in safe and durable conditions to their country or region of origin.
    • Individuals (Ukrainian citizens and third-country nationals alike) who arrived shortly before 24 February 2022 and who are now unable to return to Ukraine due to the current crisis. Reasons for being outside Ukraine prior to 24 February 2022 may vary including in anticipation of increasing tensions between Ukraine and Russia, on a business trip, or on a holiday abroad.
  2. Third-country nationals or stateless persons legally resident in Ukraine who were displaced from Ukraine as of 24 February 2022 and who benefited from international protection or equivalent national protection in Ukraine prior to 24 February 2022.
  3. Eligible family members of the previous two categories, as long as the family already existed in Ukraine at the time of the circumstances surrounding the mass exodus from the country. Note that this is regardless of whether that family member could safely return to their country of origin. The following individuals will be considered to be part of a family (note that the family must have already been present and residing in Ukraine before 24 February 2022):
    • The spouse of a Ukrainian citizen eligible for TPD status, or the unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its national law relating to aliens.
    • The minor unmarried child of an eligible Ukrainian citizen eligible for TPD status, or of his or spouse without distinction as to whether they were born in or out of wedlock or adopted.
    • Other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a Ukrainian citizen eligible for TPD status.

Note that foreign nationals with legal short-term residence status in Ukraine and who are able to return to their country of origin safely will fall outside the scope of this Directive. This is anticipated to include temporary/short-term work authorization holders, foreign students, and other short-term residence statuses. However, these individuals will be allowed to access the EU in order to secure transportation back to their country of origin.

What Permissions will be Provided

Individuals who receive TPD status will be granted the following protections and rights:

  • Residence Authorization – issued for an initial one (1) year. Renewal eligibility and details have yet to be announced.
  • Work Authorization / Access to Labor Market – in line with the duration of the individual’s residence authorization.
  • Social Welfare Assistance
  • Access to Medical System
  • Access to Other Government Assistance Programs
  • Study Permission for Student-Aged Individuals – note that TPD will also confer the right to legal guardianship and access to the local education system for unaccompanied children and teenagers.

Duration of the TPD

The TPD has entered into force with immediate effect as of 4 March 2022; however, the mechanisms of how the Directive will be implemented throughout the EU are still to be drafted, published, and subsequently enacted into Member States’ national immigration frameworks. Additional details from the European authorities are expected in the coming days.

The TPD will be valid for an initial one (1) year with automatic extensions for two additional six (6) months periods, for a total of two (2) years. EU governing bodies will be able to add an additional year beyond that timeframe if the situation in Ukraine continues into a third year.

Additional Notes

  • Once the TPD applicant has obtained protected status in a specific member state, the rights conferred with that status will only be applicable in the Member Stat that issued the residence permit.
  • If a Member state has a national scheme that is more favorable than the arrangements set out in the TPD (2001/55/EC), the Member State should be able to continue applying that national scheme. If a Member State’s national scheme is less favorable, however, the conditions of TPD (2001/55/EC) should be implemented.
  • For those Ukrainian citizens who entered the EU without their biometric passports, it has been proposed that the individual EU Member State grant permission to stay for 90 days during which the authorities will examine the individual’s situation and review any identifying documentation they have on hand.
  • Ireland is bound by this Directive and will adopt the TPD framework into their national legislation.
  • Denmark is not bound by this Directive and will not adopt the TPD framework into their national legislation. Additional details from the Danish authorities on any concessions for Ukrainian refugees is pending, but the country has indicated they will welcome refugees from this crisis.
  • The TPD proposal also included additional guidelines on border management for EU Member States. Final details of this are still pending from the EU authorities.

Pending Details

As mentioned above, many details of the TPD have yet to be announced and EU Member States will also have some flexibility in how they integrate the Directive into their national legislation. The key details still to be confirmed include, but are not limited to, the following:

  • What will the application process include?
    For example, will it be simple registration or a streamlined immigration filing?
  • What will processing times be?
    Note that, due to the high number of refugees who have already fled Ukraine, it is anticipated that stated processing times will be delayed initially due to the volume of expected applications.
  • What will the document requirements include?
    This may include provisions for individuals who departed without being able to gather key identification documentation (biometric passports, birth/marriage certificates, driver’s licenses, documentation for family pets, etc.).
  • Will there be any additional country-specific eligibility criteria?

Outside of the TPD’s required eligibility criteria, Member States will be allowed to determine additional eligibility criteria for who will qualify for TPD status. As mentioned above, this is anticipated to include whether individuals who arrived before 24 February 2022 will be covered and if third-country nationals who hold Ukrainian Permanent Residence status will be covered.

  • Will working remotely for a foreign-based entity or on a foreign payroll be permitted?

While work authorization and access to the labor market will be granted, remote work for a foreign-based entity and/or while on foreign payroll has not been addressed in either the Directive framework or any Member State announcements at the time of this writing.

Newland Chase Insights

Newland Chase strongly welcomes these steps from the European Union and is encouraged that there will be a standardized immigration process established throughout the EU for Ukrainian refugees. Employers throughout the region should continue to monitor these alerts, official government announcements, and other alerts from reputable sources as more details of the TPD are announced.

It is important to remember that implementation of such a Directive may take some time as the EU governing bodies finalize the TPD’s framework and granular details, and then individual Member States adopt the guidelines in their national legislation. With the number of refugees already topping one million displaced persons, application volume once the immigration routes open will be high and processing delays should be anticipated.

Ukrainian citizens are able to enter and stay in the Schengen Area visa-free for up to 90 days out of any 180 day period so there is time to build and roll out the provisions of the TPD. If there are delays in the implementation of the TPD, Newland Chase anticipates subsequent announcements from local authorities as to next steps for these individuals (whether it’s an automatic extension of their legal stay or some sort of renewal process).

Finally, Newland Chase will continue provide daily updates on the global immigration changes stemming from the crisis in Ukraine. We encourage you to visit our Daily Blog for the latest news throughout the world.

As always, don’t hesitate to reach out to your Newland Chase dedicated contact or submit an inquiry here should you have any specific questions regarding this announcement.

This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Case for any case- or company-specific assessments.