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Immigration law and labour market access

for displaced persons

Immigration law and labour market access

As a result of the war in Ukraine, in March 2022 the implementation of the Mass Influx Directive 2001/55/EC was decided at European level for the first time. For recognised displaced persons, this confers temporary residence as well as access to health insurance and the domestic labour market. We shed light on the relevant foreign national and labour law content from an Austrian perspective and provide practical tips before taking up employment. 

The Mass Influx Directive 2001/55/ EC of the Council laid out minimum standards for the granting of temporary protection in the event of a mass influx of displaced persons from third countries at EU level as early as 2001 – as a reaction to the consequences of the war in Yugoslavia. The implementation of the Directive allows temporary protection of third-country nationals irrespective of refugee status. Activation of the Directive failed during the Syrian conflict in 2015 due to the political will of certain Member States. The Council took the implementing decision to determine the existence of a mass influx for the first time on 24 February 2022 as a result of the military conflict in Ukraine. This implementing decision applies to Ukrainian nationals who resided in Ukraine before 24 February 2022, stateless persons and third-country nationals who enjoyed international or equivalent national protection in Ukraine before that date, and to their family members. Other stateless persons and third-country nationals who have resided in Ukraine for an indefinite period shall be granted at least “adequate protection”. 

Status in Austria 

In the course of implementing the Directive, Austria is now obliged to fulfil the following minimum requirements or to grant equivalent rights for the entire duration of the period of protection (selected requirements below): 

  • Residence permit (ID card for displaced persons) 
  • Enablement of the pursuit of gainful employment or self-employment, educational opportunities, further training and practical work experience 
  • Remuneration, social security in the context of employment and conditions of employment 
  • Adequate housing and access to the public education system 
  • “Necessary assistance” to secure livelihoods as well as emergency and medical care 
  • Psychological support etc. for displaced persons with special needs 
  • Representation of minors and family reunification 
  • Formalities concerning any visas that may be required are to be kept to a minimum, and any costs minimised or waived. 

Based on these requirements and Section 62 of the Asylum Act, Austria has enacted the so-called Displaced Persons Ordinance (VertriebenenVO). The group of people named in the implementing decision are granted a temporary right of residence. However, those who left Ukraine before 24 February 2022 are required to file an asylum application. The ID card for displaced persons in the form of a “Blue Card” is both a residence title and a means of accessing the labour market. It can be obtained by registration; an asylum application is not required. In conclusion, well over 200,000 people have so far fled to or through Austria at the end of April 2022, 64,000 of them had registered in Austria as displaced persons in order to be able to apply for such an ID card. 

The right of residence of displaced persons is currently valid from entry until 3 March 2023 and, if not terminated beforehand, is automatically extended by six months at a time, for a maximum of one year. A further regulation on 11 March 2022 extended healthcare cover to Ukrainian displaced persons: “Ukrainian nationals and other persons who are temporarily admitted to Austria as of 24 February 2022 due to the warlike events in Ukraine, unless they are already included in health insurance under another provision of this decree”. 

Labour market access 

For the duration of the temporary protection order, full labour market access is also available for displaced persons, whether they wish to pursue an employment or a self-employed activity. Educational opportunities for adults and vocational training are also available, subject to the general legal provisions concerning remuneration and social security through employment as well as other conditions of employment. Relevant criteria were defined and / or refined for this purpose through a decree of the Federal Ministry of Labour (BMA) of 11 March 2022 addressed to the Board of the Public Employment Service (AMS). 

Pursuant to section 62 (1) of the Asylum Act, the ID for displaced persons provides the basis for employment as a residence title. For persons in possession of such an ID card, employment permits are to be issued in all sectors upon application (and of course if the general requirements are fulfilled), even beyond the federal maximum number according to section 12a para 1 AuslBG. There is no labour market test or hiring of replacement workers. From the point of view of the Federal Ministry of Migration and Refugees, it is in the public interest to give displaced persons as many opportunities as possible to support themselves through their own gainful employment, especially since (skilled) labour is urgently needed in many areas. In this sense, there are no “important public and macroeconomic interests” that stand in the way of issuing permits to displaced persons. 

Admittedly, the other general conditions for the granting of an employment permit according to section 4 (1) AuslBG continue to apply, in particular compliance with wage and working conditions, “good conduct” with regard to unauthorised employment within one year prior to application, and notification of the works council prior to application. The hiring out of workers is excluded from the granting of authorisation. 

The application for an employment permit is to be submitted by the employer in person, by post or by e-mail, and in any case by submitting a copy of the ID for displaced persons on both sides to the regional office of the AMS. As is known, the employment must not start before the employment permit has been issued, but must be taken up within six weeks of it being issued, otherwise it will expire. For Austrian businesses, the loss of what were Ukrainian seasonal workers, especially harvest workers, could be substituted by the employment of displaced persons. In the tourism, agriculture and forestry sectors, employment permits can be issued outside the seasonal quotas. 

Practical questions 

Based on the Directive’s temporary protection order, and in view of the above-mentioned possibilities of extension at the European level, a maximum duration of protection and thus of employment contracts until 3 March 2025 seems conceivable. For now, employment permits will extend until 3 March 2023, the date which has been fixed so far. 

When drafting the contract, it should be remembered that the fixed-term nature of a contract of employment generally precludes ordinary termination of the employment relationship and that termination is only possible if an effective termination agreement has been concluded in advance. On the other hand, from the employer’s point of view, a fixed-term employment contract has the advantage that it automatically ends with the expiry of the employment permit. We are happy to advise you on all implementation issues. 


AUTHORS:

Mag. Valentin Neuser, Attorney-at-Law and Managing Partner at LGP
Mag. Piroska Vargha, Attorney-at-Law and Head of Employment and Corporate Litigation at LGP

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