Work Permits for Temporary Protection Beneficiaries: Precarious Practice Rejected but Why?

Since the activation of the Temporary Protection Directive, persons displaced from Ukraine have been granted generous rights, including the right to be employed. However, some Member States have imposed a work permit requirement on temporary protection beneficiaries, despite concerns that such measures contribute to increasing precarity among migrant workers.

Requiring work permits from temporary protection beneficiaries conflicts not only with the generally welcoming approach to persons displaced from Ukraine observed in the EU, but potentially also with Article 12 of the Temporary Protection Directive (TPD). This blog post seeks to identify the requirements arising from this provision, explain the evolution of the respective national legal frameworks, and determine the reasons for unifying the states’ approaches to work permits in the case of third-country nationals fleeing Ukraine.

Ambiguous Starting Point

Under Article 12 TPD, persons enjoying temporary protection should be authorized “to engage in employed or self-employed activities.” Moreover, domestic law concerning “remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment” also applies to the beneficiaries. However, a priority may be given by the Member States to EU citizens and some other persons.

Article 12 of the Temporary Protection Directive does not explain in more detail how the right to work should be provided, or whether a separate work permit could be required from its beneficiaries. Despite the ambiguity of this provision, Noll and Gunneflo (2007) argued that domestic laws requiring temporary protection beneficiaries to obtain a work permit may be incompatible with Article 12, especially in cases where these permits are granted only upon satisfying additional conditions.

Changing Laws and Practices

Upon the Temporary Protection Directive’s activation in March 2022, the European Commission encouraged providing the broadest possible access to the national labor markets for beneficiaries. Among other things, the Member States were dissuaded from granting priority to EU citizens and other persons mentioned in Article 12 TPD (European Commission 2022). Accordingly, most Member States fully and immediately opened their labor markets to persons displaced from Ukraine (Vaitovich 2023; ELA 2023). However, initially, five states required a separate work permit from temporary protection beneficiaries. All these states changed their approach over time.

The first one to repeal a work permit requirement was the Czech Republic. Persons displaced from Ukraine needed a work permit there – albeit without a labor market test – only until 21 March 2022 (Pastorek 2024). France followed suit, and on 1 April 2022, it amended the rules concerning work permits for temporary protection beneficiaries (Delbos and Charre 2024). Hungary, at first, recognized that temporary protection beneficiaries could work without a work permit only in some sectors, but these limitations were abolished on 30 April 2022 (Lukács Gellérné 2024).

In Germany, in April 2022, the Federal Ministry of the Interior indicated that work permits for temporary protection beneficiaries should be automatically issued together with their residence permits. The following month, the legal obligation to obtain a work permit was repealed (Bliecke, Diekjobst and Manandhar 2024). Austria – who argued in favor of the work permit requirement already in 2000 (Skordas 2022) – was the last one to repeal it. Until 21 April 2023, temporary protection beneficiaries not only needed a work permit to be employed in Austria, but also it could only be requested by their employer (Vinzenz 2024).

Due to these changes, in 2024, separate work permits were predominantly not required from the employed temporary protection beneficiaries. However, in Malta, they still needed an employment licence (aditus 2024).

Understanding Cause and Effect

This evolution of the domestic legal frameworks prompts a question of why almost all Member States eventually decided against the work permits for temporary protection beneficiaries. It might have been justified by legal, economic and humanitarian reasons.

The domestic legal acts abolishing a work permit requirement indicated that the amendments were made to take into account the TPD (e.g. in France and the Czech Republic), or because of the identified conflict between the national law and the directive (in Germany). It may be, therefore, argued that the Member States ultimately recognized that requiring a work permit is incompatible with Article 12 of the TPD (see also ELA 2023). However, due to the ambiguity of this provision, it may also be argued that Member States applied the “more favorable conditions” clause under Article 3 para. 5 of the TPD or, as encouraged by the European Commission, refrained from using the priority rule set out in Article 12. Thus, it is uncertain whether the TPD forced the states to modify their approach to work permits or only enabled this change.

Economic factors seem to have had a greater impact on the decision to not require work permits from persons displaced from Ukraine. Seeing the magnitude of the mass influx of persons fleeing Ukraine, the Member States must have realized quickly that a full and immediate labor market inclusion of temporary protection beneficiaries would support their self-sufficiency and, consequently, protect national social welfare systems (to which beneficiaries have access under Article 13 TPD). This pragmatic approach of the Member States aligns with the initial objective of Article 12 TPD (Kerber 2002). Already in 2000, the European Commission argued that providing temporary protection beneficiaries with access to the labor market “will reduce their dependence on assistance schemes” (European Commission 2000). This perspective has not changed since (European Commission 2022).

While humanitarian considerations influenced the activation and implementation of the TPD, there is little evidence to suggest that concerns about the precarious nature of the work permits (Anderson 2010: 309-311; Zou 2015) were an important motivation in Member States’ aligned approach to removing such requirements. Vulnerabilization of persons displaced from Ukraine resulting from work permit requirements does not seem to have been taken into account by the Member States or the European Commission. Nevertheless, this precarious practice has been rejected over time by almost all Member States. Although it might have been motivated mostly by financial considerations, it has benefited both the Member States and temporary protection beneficiaries.

Maja Lysienia is a postdoctoral researcher at the HES-SO Valais-Wallis and the Université de Lausanne (nccr-on the move). In the framework of the nccr – on the move project “Evolving (Im)Mobility Regimes”, she studies crisis-related changes in migration laws and policies.

References:

–Aditus. (2024). Temporary Protection Malta 2023 Update.
–Anderson B. (2010). Migration, immigration controls and the fashioning of precarious workers. Work, Employment and Society 24(2): 300-317.
–Bliecke V., Diekjobst R., Manandhar T. (2024). Mass influx of people from Ukraine: social entitlements and access to the labour market: Germany. In: I. Florczak and J.K. Adamski (eds), Mass influx of people from Ukraine: social entitlements and access to the labour market: 183-197.
–Delbos L., Charre S. (2024). Temporary Protection France 2023 Update.
–ELA. (2023). Overview of the measures taken by EU and EFTA countries regarding employment and social security of displaced persons from Ukraine. Comparative summary report.
–European Commission. (2000). Proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
–European Commission. (2022). Communication from the Commission on Guidance for access to the labour market, vocational education and training and adult learning of people fleeing Russia’s war of aggression against Ukraine 2022/C 233/01.
–Kerber K. (2002). The Temporary Protection Directive. European Journal of Migration and Law 4(2): 193–214.
–Lukács Gellérné É. (2024). Mass influx of people from Ukraine: social entitlements and access to the labour market: Hungary. In: I. Florczak and J.K. Adamski (eds), Mass influx of people from Ukraine: social entitlements and access to the labour market: 199-211.
–Noll G., Gunneflo M. (2007). Directive 2001/55 Temporary Protection. Synthesis Report. University of London, Academic Network for Legal Studies on Immigration and Asylum in Europe.
–Pastorek S. (2024). Mass influx of people from Ukraine: social entitlements and access to the labour market: Czech Republic. In: I. Florczak and J.K. Adamski (eds), Mass influx of people from Ukraine: social entitlements and access to the labour market: 124-144.
–Skordas A. (2022). Temporary Protection Directive 2001/55/EC. In: K. Hailbronner, D. Thym (eds), EU Immigration and Asylum Law: Article-by-Article Commentary, 3rd ed.: 1177–1228.
–Vaitovich V. (2023). Access to socio-economic rights for beneficiaries of temporary protection.

This article is part of a series on “Vulnerabilization of migrant workers during crises.”