Article by Ioana Banu, Partner
Today, we are heartbroken. What can we do to help?
Far too little.
But we can do our job.
We need bright Ukrainians on Romanian jobs. And Ukrainians need employment.
Ukrainian refugees need more than food and shelter. They need prospects for the future.
Assisting our clients on swift ways to hire Ukrainian personnel is a priority for our law firm.
During these dreadful times, our law firm will offer pro bono advice to Ukrainians seeking counsel for work formalities in Romania, for whom our contact details are open.
This Article contains a few aspects to note for companies who want to hire under a simplified procedure Ukrainian refugees and Ukrainians seeking jobs here in Romania.
I. SIMPLER WAYS TO HIRE UKRAINIANS APPLY IN ROMANIA
Romanian companies can hire Ukrainians under simpler rules than normally applicable for hiring non-EU citizens
Until the European Council green lights Ukrainians to work across EU Member States under ‘the temporary protection mechanism’ (see point II below), Romanian companies can hire Ukrainians under simpler rules than those normally applicable for hiring non-EU citizens.
The simplified procedure allows Ukrainian citizens to be hired in Romania without having to obtain a work permit (in Romanian “aviz de munca”) from the General Inspectorate of Immigrations (which can be a rather complicated procedure).
Ukrainian citizens may be hired without a work permit in the following 3 situations: (as regulated by Government Ordinance 25/2014 on the hiring and posting of foreigners in Romania, as well as for the amendment of certain legal enactments as regards the foreigners regime in Romania (GO 25/2014)):
- (1) for a fixed-term of maximum 9 months during a calendar year;
In this situation, Ukrainians must be hired under a full-time employment contract (8h/day, 40 hours/week) (see Article 3 (1) letter o) of GO 25/2014).
For the declaration of revenue with the Romanian tax authorities, Ukrainians have to obtain a tax identification number (in Romanian “numar de identificare fiscala”).
Note: After these 9 months, Ukrainian citizens who want to continue working in Romania can benefit from an extension, provided they obtain a work permit and file the full-time individual employment contract registered in the general register of employees, which shows the salary is at least at the level of the minimum wage (ie. 2,550 lei).
- (2) in 3 months as of filing for asylum in Romania
Ukrainian asylum seekers may be hired in Romania after 3 months have elapsed from the date they officially submitted their asylum request in Romania. They may stay employed throughout the entire asylum procedure; in other words, for the entire duration while the asylum request is under analysis by Romanian authorities (according to Article 3 (1) letter k) of GO 25/2014 considered together with Article 17 (1) letter o) of Law 122/2006 on asylum in Romania).
Note: Even if many Ukranian citizens are submitting their asylum requests at the Romanian borders, the power to decide on granting asylum, lies, in principle, with the General Inspectorate of Immigrations.
Delays in finalizing the asylum procedure could be expected considering the struggle to cope with high demand, so point (2) is noteworthy since it allows companies to hire Ukrainians without a work permit before they are officially granted asylum.
Note: Asylum can be requsted even by Ukrainians who do not have identity papers.
Note: A potential decision whereby Romanian authorities refuse asylum may be attacked before the courts of law. In this case, the right to work as per point (2) above is extended throughout the entire duration of the trial.
- (3) after being recognised as refugees or as benefiting from subsidiary protection
Ukrainians formally recognized in Romania as refugees or as benefiting from subsidiary protection (each defined below) have the same right to work as Romanian citizens (Article 3 (1) letter j) of GO 25/2014).
Note: Formal recognition is considered to be granted when Romanian authorities officially approve the asylum request with the stated protection.
Note: Ukrainians to whom protection has been formally recognized have the same rights as Romanians citizens, besides the right to vote and be elected in public office, including:
(a) to be employed by natural or legal persons, under the same conditions as Romanians, (b) to benefit from social insurance, social assistance measures and social health insurance, under the conditions provided by law for Romanians, (c) to benefit from equal treatment with Romanians regarding equivalence of studies or periods of study, recognition of diplomas and certificates of competence, as well as professional qualifications that give access to professions in Romania.
Definitions of the 2 types of protection which may be granted via the asylum request:
- refugee status – is granted to a foreign national who, following a well-founded fear of persecution on the grounds of race, religion, nationality, political opinion or membership in a particular social group, is outside his/her country of origin and, who cannot, or, because of this fear, does not wish to, seek the protection of that country, as well as the stateless person, who, for the same reasons stated above, from outside the country in which he/she had habitual residence, cannot or, because of that fear, does not, wish to return to that country and to whom the grounds for exclusion from recognition of refugee status provided for in this law do not apply (see Article 23 of Law 122/2006 on asylum in Romania).
- subsidiary protection – is granted to a foreign national or stateless person who does not meet the conditions for recognition of refugee status and for whom there are reasonable grounds for believing that in the event of return to the country of origin or country of habitual residence, he/she will be exposed to a serious risk, who cannot or, because of this risk, does not want, the protection of that country and to whom the reasons for exclusion from granting this form of protection provided by this law do not apply (see Article 26 (1) of Law 122/2006 on asylum in Romania).
The above-mentioned notion of ‘serious risk‘ may include a serious, individual threat to life or integrity as a result of widespread violence in situations of internal or international armed conflict, insofar as the applicant is part of the civilian population (see Article 26 (2) point 3 of Law 122 on asylum in Romania).
The European Council may activate ‘the temporary protection mechanism’ under which displaced Ukrainians would be granted residency status and access to work across EU Member States.
II. GREEN LIGHT FOR WORK IN EU MEMBER STATES COULD BE EXPECTED
As the EU is preparing to welcome millions of Ukrainians, a common response might be required throught EU Member States.
On 1st March 2022, the President of the European Commission proposed to activate ‘the temporary protection mechanism’ under which displaced Ukrainians would be granted residency status and access to work in EU Member States, including Romania, without having to go through stiff asylum procedures.
Under ‘the temporary protection mechanism’, EU Member States would grant Ukrainian refugees, among other rights: (a) a residence permit for the entire duration of the protection (which can last from one year to three years), access to employment and access to social welfare or means of subsistence.
In principle, ‘the temporary protection mechanism’ would not apply to UK, Ireland and Denmark.
It remains to be seen if, how and when the European Council could activate this mechanism to open EU doors and acces to work to Ukrainians. This could also pave the way for EU welcoming other refugees who need our help.
Directive 2001/55/EC of 20 July 2001 which provides the temporary protection mechanism may be consulted here.
III. FINAL THOUGHTS. CALL TO ACTION.
We firmly believe we must fight for humanity.
This is a time for action not empty posts.
Integrating Ukrainian refugees in Romania is a must and would benefit all sides involved.
Romanian legislation provides tools for an easier employment of Ukrainians and EU mechanisms granting access to employment could follow.
Let’s each do our part.
Disclaimer: The information provided herein is in no way exhaustive and does not, and is not intended to, constitute legal advice. Readers of this Article should contact their attorney to obtain advice with respect to any particular legal matter.
