/ Information for employers
Last updated 25.03.2022
German employers are free to recruit Ukrainian citizens, accept applications from them and to make them offers for employment.
However, employers must ensure that, prior to employing a refugee as an employee, the refugee presents a residence permit (Aufenthaltstitel) or a transitional certificate (Fiktionsbescheinigung) which explicitly states that the refugee is permitted to work in Germany (s4a paragraph 5 of the Residence Act). Employing or engaging a refugee who does not have such a permit to conduct the work s/he is employed to do would constitute illegal employment and could result in fines and other consequences for both the employer and the employee.
The permit or transitional certificate will state the extent to which activities in Germany are allowed explicitly. For example, it may state “Erwerbstätigkeit erlaubt” or “Erwerbstätigkeit gestattet“ (“work permitted“). In this case, the refugee is permitted to conduct any employed or self-employed activity and can be employed or commissioned to do so by employers/companies. Alternatively, the permit may state something more specific, e.g. “Beschäftigung bei der XY GmbH als XY in Berlin bundesweit erlaubt“ (“Employment with XY GmbH in Berlin as XY permitted in all of Germany“). In this case, the refugee is permitted to perform this particular activity stated in the permit – any other activity first requires the foreigner office to issue a change to the permit.
Employers/companies must keep a copy of the residence permit permitting employment/activity for the duration of the employment or contract. It is advisable to keep it for longer.
Please find detailed information on entry to Germany as well as on obtaining a residence/work permit below. Potential employers can support candidates in obtaining the residence permit required to perform work by supplying the below information as well as helping with dealing with authorities.
- Entry to and short-term stays in Germany
On 7 March 2022, the German Federal Ministry of the Interior issued the Ukraine Residence Transition Regulation (UkraineAufenthÜV). This initially regulates the residence of refugees from Ukraine without a residence permit in Germany with retroactive effect for the period from 24 February 2022 up to and including 23 May 2022. (It goes further than the visa exemption for Ukrainian nationals in Schengen states!)
Under it, the following groups of people do not need a residence permit (e.g. a visa or a residence permit) from 24 February 2022 until, initially, 23 May 2022 to enter and stay in Germany lawfully (s2 of the Ukraine Residence Transition Regulation):
- Foreign nationals who were in Ukraine on 24 February 2022 and who enter Germany by 23 May 2022 who do not hold a longer-term German residence permit. This therefore also covers individuals who are not Ukrainian nationals.
- Ukrainian nationals who were resident in Ukraine on 24 February 2022, but who were temporarily absent from Ukraine on that date, and who enter Germany by 23 May 2022 who do not hold a longer-term German residence permit. This also applies to refugees recognised in Ukraine within the meaning of the Geneva Refugee Convention and individuals enjoying international or equivalent national protection in Ukraine.
- Ukrainian nationals who were already legally residing in Germany on 24 February 2022 who do not hold a longer-term German residence permit.
Please note: Employment in Germany is not permitted during the stay without a residence permit (s4a of the Residence Act)!
- Applying for a residence permit in Germany
Individuals in the categories set out above can apply for a longer-term residence permit until 23 May 2022 during their stay in Germany (s3 of the Ukraine Residence Transition Regulation).
Which residence permit can successfully be applied for depends on further requirements. There are two options:
- Option 1: Applying for a residence permit for temporary protection
- Option 2: Applying for a regular residence permit
- Changing from a residence permit for temporary protection (Option 1) to a regular residence permit (Option 2) later on is possible.
More detailed information on Options 1 and 2 is outlined below:
- Option 1: Residence permit for temporary protection – who is eligible?
The majority of refugees from Ukraine are likely to be eligible for a residence permit for temporary protection (s24 of the Residence Act, EU Council Decision 2022/382, EU Directive Temporary Protection Directive (2001/55/EC). Detailed practical instructions can be found in the German Federal Ministry’s (BMI’s) letter to the foreigner offices of 14 March 2022 (only available in German) – those are summarized below (for details, please refer to the BMI’s letter).
If a person fulfils the requirements of a residence permit for temporary protection, s/he has a legal claim to it being issued. The foreigner office has no discretion over whether it is issued. The following groups of people are entitled to the residence permit for temporary protection:
- Ukrainian nationals who were resident in Ukraine before 24 February 2022.
- Stateless individuals and nationals of third countries other than Ukraine who have enjoyed international protection (under the Geneva Convention) or equivalent national protection in Ukraine before 24 February 2022.
- Family members of people in the categories in the two points above. (Please refer to the BMI letter for further information on which family members are eligible.)
- Stateless individuals and nationals of third countries other than Ukraine who can prove that they were legally resident in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued under Ukrainian law (this can be proven by presenting the Ukrainian residence permit) and who are unable to return safely and permanently to their country or region of origin.
- Nationals of third countries other than Ukraine, if they can prove that they were legally resident in Ukraine on 24 February 2022, and not only for a temporary short stay of maximum 90 days (this can be proven by presenting the Ukrainian residence permit) and who cannot return safely and permanently to their country or region of origin.
- Ukrainian nationals who are already residing in Germany with a residence permit even if they entered before 24 February 2022, for example, if their residence permit is expiring and cannot be extended.
Temporary protection is also granted to individuals who fled from Ukraine not long before 24 February 2022, when tensions increased, or who were in the EU shortly before that date (e.g. on holiday or for work) and who cannot return to Ukraine as a result of the war.
- How to apply for a residence permit for temporary protection under Option 1
Residence permit applications must be submitted to the local foreigner office (Ausländerbehörde): This is the foreigner office at the refugee’s registered place of residence in Germany. If s/he has not yet registered residence in Germany, s/he should apply at the foreigner office at the place where s/he is staying in Germany (paragraph 7 of the BMI letter). Which local foreigner is competent can be found out here.
The application procedure differs slightly depending on the place of application and the foreigner office. In Berlin, the application can be submitted online here.
After submitting the application, applicants initially receive a ‘transitional certificate’ (Fiktionsbescheinigung, s81 paragraph 3 sentence 1 and paragraph 5a of the Residence Act). In Berlin, this is issued automatically as a PDF document after the application has been submitted online. Later, applicants in Berlin receive an appointment at which the long-term residence permit is then usually issued. In other municipalities, however, a personal visit to the Foreigners' Registration Office is sometimes necessary to apply for and receive the transitional certificate.
- Duration of residence permit for temporary protection under Option 1
Residence permits are granted retroactively from the date of entry into Germany, at the earliest from 4 March 2022, until 4 March 2024 (Article 4 of EU Directive 2001/55/EC, s26 paragraph 1 of the Residence Act).
- Right to work with a residence permit for temporary protection under Option 1
The transitional certificate and the longer-term residence permit for temporary protection entitle the refugee to legal residence in Germany and give him/her the right to work in Germany (s24 paragraph 6 of the Residence Act, s31 of the Employment Regulation).
Consequently, as soon as the transitional certificate with the note ‘Erwerbstätigkeit erlaubt" or ‘Erwerbstätigkeit gestattet’ (work permitted) is made available to the refugee (in Berlin, for example, this will usually be the case immediately after the online application as a PDF document), refugees may work in paid employment or on a self-employed basis in Germany (s4a of the Residence Act).
Please note: Refugees are not allowed to work or be employed or commissioned in Germany before a residence permit or transitional certificate permitting work has been issued.
- Registration as a refugee and assignment to a place of residence
Please also note that refugees can register as refugees (for Berlin see e.g. here) in order to receive basic welfare benefits including accommodation, food and medical care (s1 paragraph 1 no. 1a of the Benefits for Asylum Seekers Act). However, they do not obliged to register (although some foreigners authorities require refugees to register in order to be able to process the application for a residence permit). Otherwise, refugees are entitled to basic welfare benefits after the residence permit for temporary protection has been issued (Sec. 1 para. 1 no. 3 Benefits for Asylum Seekers Act).
Please note: Refugees do not have the right to stay in the town they want in Germany. After registering as refugees, they receive an allocation decision from the authorities to a place in Germany where they are allowed to reside (s24 paragraphs 3 - 5 of the Residence Act). This may or may not be the town where they have arrived. Allocation to another town happens particularly often in Berlin now (although there are ways to influence the decision, such as having a place to stay permanently in the place prior to registering, though obviously this will be very difficult for many). However, this residence requirement can subsequently be waived, for example, for family reasons or if refugees take up employment, study or training (for more details, see the BMI’s letter).
- Option 2: Applying for a regular residence permit
Third-country nationals who have fled Ukraine and who do not fulfil the requirements for the eligibility described above are not entitled to a residence permit for temporary protection, even though they can legally stay in Germany until 23 May 2022 (under s2 of the Ukraine Residence Transition Regulation). This applies in particular, for example, to third-country nationals who do not have Ukrainian citizenship but who have a Ukrainian residence permit and who can safely and permanently return to their country of origin.
If they wish to remain in Germany despite this, they can apply for a ‘regular’ residence permit during their stay in Germany (under s3 of the Ukraine Residence Transition Regulation), provided they fulfil the conditions for issuance. This may especially be the case if they have a recognized university degree (see on this below) and have a job offer in Germany for qualified employment. For example, a residence permit for the purpose of employment (s18 et seq. of the Residence Act) can potentially be applied for if the third-country national holds an employment offer in Germany. Please note, however, that a regular residence permit will usually permit the refugee to perform one specific job rather than giving full access to the labour market.
In order for the refugee to apply for the permit at the local foreigner office (after registering their residence (Anmeldung) in their place of stay), employers will need to provide the refugee with an employment contract offer and filled-in employer forms from the foreigner office.
For regular residence permits, the applicant’s qualification as well as whether it is recognized in Germany often matters. On recognition of university degrees, please note the following: To check whether the applicant’s university degree is recognized in Germany, employers can consult the Anabin platform (see here, only available in German). If the applicant has completed vocational or other education, this may need to be formally recognized by the competent authority. Employers can find more information on this on the German government website “Make it in Germany” here.
Applying for a regular residence permit is also open to persons who are eligible for a residence permit under Option 1.
- Changing from a residence permit under Option 1 to Option 2
The Federal Interior Ministry has now clarified (in the BMI letter) that changing from Option 1 to Option 2 is possible. This means, for example, that a refugee who already holds a residence permit for temporary protection can also later apply for an EU Blue Card under s18b paragraph 2 of the Residence Act, provided s/he meets the requirements for it being issued. An EU Blue Card can be advantageous, as it enables its owner to apply for permanent residence in Germany after only 21 months if further requirements are met, especially B1 level German language skills (s18c paragraph 2 of the Residence Act).
Yes, this will be possible in most cases. The job interview can be done in person or by telephone or by Skype/Teams. While there are some data protection concerns against most well-known providers of video conferencing software, in practice, this is an often-used solution for job interviews.
It is still fairly common in Germany to sign paper copies of an employment contract with a “wet ink” signature. For certain contract clauses to be valid (such as a fixed-term agreement), this is even mandatory. But otherwise, digital signatures are fine and we see an increasing number of contracts exchanged as PDF and with the use of Docusign or similar providers.
In principle, yes. It makes sense to include a language which the new employee will be able to understand. Many clients use bilingual contracts (German + English).
If the new employee has only just arrived in Germany and does not have an official residential address yet, any recent address is fine to conclude the contract, even the previous Ukrainian one. However, the employee should take on a contractual obligation to inform and update the employer immediately of any changes to the residential address. Especially with remote workers, this is necessary in order to be able to deliver mail and paper documents.
The content of the contract will be the same as with a German employee, defining job role, starting date, gross salary, working time, notice period, number of vacation days etc. However, it is highly advisable to add a provision according to which the contract will only come into force once the employee obtains and proves the legal right to conduct the work specified in the contract in Germany.
During the onboarding process, you (or your Human Resources Information System) will request the usual pieces of information from the employee, such as bank account, social security number, tax ID, the chosen statutory health insurance etc. Obviously, with a person who has only just arrived in Germany for the first time, it might be a challenge to fill in all required information. You may be able to support the new employee by giving them a bit of guidance through the German authorities and procedures (for example with opening a German bank account or obtaining health insurance).
Two main points must be taken into consideration when hiring freelancers:
In order to hire a Ukrainian citizen as a self-employed freelancer, they must also have a residence and work permit which permits the self-employed activity prior to conducting it. The company which engages them must check this permit prior to letting them perform any kind of work. If they do not have such a permit or the permit does not permit a self-employed activity and they nevertheless conduct self-employed work, then fines and other potentially severe legal consequences may follow for freelancer and company.
Please note that, if freelancers are applying for a regular residence permit (Option 2), a residence permit for the purpose of self-employment will usually take much longer and require a lot more documents (such as a business plan) than a regular permit for the purpose of employment. However, a residence permit for temporary protection (Option 1) permits self-employment.
In principle, it is legally possible to have someone work as a freelancer if they actually meet all requirements of freelance work as opposed to employment. This means they need to be free of instructions from the company regarding time, place and content of their work, not under any ad hoc instructions, economically independent (ideally working for several companies, with their own equipment and their own website) and not integrated into the company’s work organization (for example, they should not have a company email address). If they invoice specific items, such as a piece of furniture produced, or a written piece, this tends to point towards self-employment. If they receive a certain amount per time, each week/month, this points towards employment – i.e. that they are in fact covert employees rather than freelancers.
Hiring via an employer of record, under German law, usually constitutes a lease of employees (Arbeitnehmerüberlassung), just as hiring through a temp hiring agency. It is important to note that, if the Ukrainian citizen is considering applying for a regular residence and work permit (Option 1) on the basis of a job offer in Germany, this will usually not be granted if the job offer includes temp work. Whether temp work will be permitted in the case of the “mass influx” regulation (Option 2) remains to be seen.
Please note that while we want to support employers and employees with this general set of information, we cannot take over responsibility for the use of this general information nor for any of the content provided in the external links.
Created by attorneys Dr. Jessica Jacobi and Dr. Julia Uznanski, LL.B.