What’s Next for TPS-holders in Europe Who Fled Ukraine?

In November 2023, the EU extended the right to the Temporary Protection Status (TPS) for those eligible until 4 March 2025. Thereafter, a raft of EU Member States announced amending their legislation with the same 12-month extension, until March 2025.

The wording of the EU legislation led many to believe that 4 March 2025 would be the longest possible extension based on the Temporary Protection Directive, which seems to indicate a maximum number of three years for the duration of the TPS.

However, EU authorities recently confirmed that they interpret these provisions flexibly. Therefore, the EU could continue to request Member States to renew the TPS on an annual basis, depending on how the situation in Ukraine evolves. Further communication by the European Commission on this topic is expected before summer 2024.

The continuous renewal of TPS brings new challenges

The renewed extension recognises the continued protection needs of more than 4.3 million Ukrainians and non-Ukrainians who fled the country following the invasion and are currently living in the EU. As such, it is a positive outcome and, once again, provides a quick and unbureaucratic solution for another year. However, this approach also presents several challenges.

At the beginning of the war, many EU countries granted TPS even to individuals who were not listed as beneficiaries in the EU legislation, a choice an EU country can always make. For example, Spain granted protection to all non-Ukrainian persons residing in Ukraine and even to Ukrainian citizens residing irregularly on Spanish territory at the outbreak of the war. Other EU countries, such as Finland and France, had a narrower interpretation from the very beginning. They granted protection only to those non-Ukrainian long-term residents who could not return safely to their country of origin.

Now, two years later, some countries are limiting the scope of TPS to bring it in line with other countries' practices. The Netherlands, for example, granted TPS to non-Ukrainian nationals previously temporarily residing in Ukraine but ended this in March 2024. Crucially, many individuals concerned by these changes and their employers were caught off guard with little time to prepare.

The absence of residence permit renewals, for which many EU countries have opted, poses another practical challenge to TPS beneficiaries. Seeking an efficient solution to a significant administrative task, many national administrations have simply announced that the status is extended, even if residence cards are not renewed. This is, for instance, the case in Spain and Italy. As a result, many TPS holders currently have expired residence cards. This may thus lead to serious issues for individuals who travel abroad and present expired residency cards to border officials.

TPS alternatives: Options for more certainty

The key struggle for individuals with TPS and their employers is the lack of long-term planning. Furthermore, whether an individual's temporary protection status is renewed is beyond the control of the employee and employer. It is thus important to consider alternatives to TPS and begin to explore case-by-case solutions.

TPS holders can apply for asylum or subsidiary protection status. However, this pathway has two important limitations. First, the large number of TPS holders who could apply for asylum would overwhelm the already limited capacity of national asylum systems. This could trap individuals in a situation with limited rights and little certainty for long periods. Also, to qualify for refugee status or subsidiary protection one must demonstrate specific individual circumstances, such as a threat to one's life or being the victim of political prosecution. It is risky to assume that everyone with TPS would be able to do so.

Individuals can always check their eligibility for long-term residence in an EU country. In this regard, many were eagerly awaiting the adoption of the recast of the long-term residence Directive by the EU. The new Directive, as proposed by the European Commission, would have forced EU countries to count the years spent on TPS towards long-term residence. However, even with the amended rules, a direct transition from TPS to long-term residence would not have been possible. In any case, hopes for TPS holders to be eligible for EU long-term residency have been dashed by the recent cancellation of negotiations on this piece of legislation by the Council.

Other options exist, such as study and family-based permits, and should be explored on a case-by-case basis. Discussions are also underway on other possible options, including a special transitional permit, possibly linked to Ukraine's EU accession plans and other approaches to regularize the TPS population. Currently, however, none of these options provide certainty.

Next steps for employers of TPS holders

The best solution for many individuals and their employers is to apply for a regular work permit in the country, if possible. At the time of this writing, this is possible in some countries, such as the Netherlands, Belgium, France, Romania, and Luxembourg, but not (yet) in others, such as the Czech Republic and Spain.

Experience from the Netherlands and France shows that such switches to a work permit in-country are overall straightforward and work well. The foreign national must, however, realize that with changing status, they lose the rights that are tied to the TPS. One example is the termination of free accommodation and government subsidies in the Netherlands, requiring employees to potentially earn a higher income to sustain themselves.

National regulations should always be checked in detail. In Estonia, for example, the number of new temporary residence permits issued each year cannot exceed 0.1% of Estonia's permanent population. Currently, there are more than 30 times as many TPS holders in the country. So, while TPS holders can technically switch to a work permit in-country, the quota applies to them. Hence, only a fraction will be able to do so.

In Poland, while the TPS is applicable, a parallel national scheme, the “Special Bill” is used in practice. Based on the latter, only working applicants can change their status while in Poland, and a change of status is not yet possible for their dependants.

Another example is Germany. While it is possible to switch from TPS to a work permit in Germany, this is explicitly not possible when applying for an EU Blue Card. Employers and individuals need to consider these country-specific limitations.

Creating an action plan

Given the numerous moving pieces in this puzzle, as an employer, it is recommended to focus on ensuring as much certainty as possible to your staff members working based on their TPS:

• Identify the employees who urgently need support as their TPS is ending;
• Start preparing in-country conversions to work and residence permits. These require several administrative steps and sometimes have long lead times (document collection, government approval times and issuance of new residence permits, etc.);
• Explore solutions to complex cases where individuals do not qualify for permits or in-country change of status. One such option is an application for work permits in another EU country.

The advantages to switching employees to employment bases permits are numerous:

• Increased certainty for your business and employees;
• Eliminating the current and future travel challenges TPS beneficiaries are facing due to expired residence cards;
• Putting TPS holders and their family members on a path to long-term residence.

Need to know more?

Assessment and advice for in-country change of status as well as long-term planning may require professional advice and support. Please reach out to the Fragomen Consulting Europe team at [email protected] with any queries.

This blog was published on 29 March 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.