Vander Elst-Visa can be issued to third-country nationals with permanent residence and a work permit in an EU country to enable them to provide services in another EU country, such as Germany. These may also be issued to Ukrainian refugees. This concerns about one million Ukrainian refugees who are currently working in the EU.
Vander Elst-Visa can be issued to third-country nationals with permanent residence and a work permit in an EU country to enable them to provide services in another EU country, such as Germany. These may also be issued to Ukrainian refugees. This concerns about one million Ukrainian refugees who are currently working in the EU (out of a total of 4.5 million Ukrainians who have currently found refuge in the EU (source: UNHCR, 1 November 2022, https://data.unhcr.org/en/situations/ukraine) and who are interested in providing services for their employers in Germany, for example.)
On 14 October 2022 the Council of the European Union extended the Temporary Protection Directive until the end of March 2024. Unfortunately, this occurred without the participation of Denmark, which has accepted about 36 000 Ukrainians.
Even though about 450 000 Ukrainians have received temporary protection in the Czech Republic and this high number was managed well from an administrative standpoint, Ukrainians are still faced with unnecessary hurdles created by the Czech administrative bodies and courts. One would expect a more sensible policy from a country that holds the EU Presidency until the end of 2022.
Vander Elst-Visa for third-country nationals from other EU countries
As correctly summarised by the German embassy in Pressburg (also known as Bratislava in Slovakia), ‘‘According to the European provisions on the Freedom to Provide Services… Companies based in an EU country can send an employee to temporarily provide services in another EU country without the need for a work permit or any other form of legal employment approval (so-called Active Freedom to Provide Services). In these cases a visa procedure must be carried out before entering the country (such as Germany). A Vander Elst-Visa for a specific employment that authorises an explicit occupation in Germany during the time of service provision is issued. Intra-company assignments, e.g. temporary deployments to other branches of the company in Germany are not generally covered by the regulation ….’’. This means that a Turk, Chinese or Argentinian who possesses permanent residence with a work permit in the Czech Republic or Slovakia can provide services for his Czech or Slovakian employer in Germany. Without this visa the employer is at risk of receiving a penalty from the customs administration. The European Court of Justice (ECJ) ruled in 1994 that third-country nationals do not require a permit. However, the Vander Elst-Visa does not contradict this ruling since there is an entitlement for the Vander Elst-Visa to be issued and it is done so upon request. These visas are granted by the German Embassy in Prague or Bratislava (forms can be found on their respective websites). Citizens in some Balkan countries are until the end of 2023 the sole responsibility of the German embassies in their homeland, meaning the embassies in Tiana, Sarajevo, Pristina, Skopje, Podgorica and Belgrade, even if it seems rather impractical for a Serbian in Prague or an Albanian living in Bratislava and raises questions as to the compatibility of the Vander Elst-Visa with the ECJ ruling. The German practice has been pointed out by bnt multiple times (for example: https://bnt.eu/de/legal-news/lithuania-gamechanger-for-cross-border-employee-leasing/; https://bnt.eu/de/legal-news/posting-of-third-country-nationals-from-lithuania-to-germany/).
Some countries have even abolished the need for all visas and residence permits for these third-country citizens, for example the Czech Republic or Slovakia in their respective employment laws (for ex. § 98 paragraph 1, letter k) of the Czech employment law (435/2004 Sb.)). This is the reason that a third country-national, such as a Turk, Chinese or Argentinian, with a work permit and a permanent residence in Germany can be appointed by his employer to provide services in the Czech Republic or Slovakia without further complications.
Can the Vander Elst-Regime also be applied to Ukrainian refugees?
Approx. 4.5 million Ukrainians have found refuge in the EU, almost all of them under the Regime of Temporary Protection after the decision made by the EU on 4 March 2022 (decision Nr. 382/2022), which applies to all Ukrainians and some third country-nationals who have managed to flee from Ukraine to the EU since 24 February 2022. This regime was extended by a year on 14 October 2022, meaning that the European Council did not oppose the automatic extension of the regime until the end of March 2024. The Netherlands grants protection to all Ukrainian refugees who fled the country following 26 November 2021, i.e. before the start of the war. This possibility is opened up by the decision (382/2022) itself, but most EU countries only apply this regime to refugees who fled the country after 24 February 2022. The extension on an EU level means that it is to be expected that more and more Ukrainians will take on employment in EU countries, since they will gain access to the employment market in the country where they received temporary protection. Because of the ongoing war in Ukraine, especially because of the damage done to the infrastructure and the coming winter, more Ukrainians are expected to flee Ukraine to the EU during the winter of 2022/2023. This raises the question of whether these Ukrainians working in an EU state can also be sent to other EU countries to provide services for their employers, in the spirit of the Vander Elst regime. In an email, the German Federal Office for Asylum, Migration and Refugees (BAMF in Nuremberg) affirmed this application to Ukrainian refugees with temporary protection, and in an email dated 10 November 2022, the German Embassy in Prague confirmed this. However, there are no official statements concerning this; neither BAMF, nor the responsible German embassies mention this on their websites, and the visa manual of the (German) Foreign Office also fails to mention it.
Difficulties for Ukrainian refugees in the Czech Republic: no legal recourse and no aliens’ passports
The regime under EU Decision 382/2022 works well, but with limitations and difficulties in some countries, such as the Czech Republic (cf. https://bnt.eu/legal-news/lex-ukraine-has-been-amended-by-act-no-175-2022-on-the-temporary-protection-status-for-ukrainian-refugees-but-many-questions-remain-unanswered/). A problem that remains is access to justice, which according to a decision of the Czech Supreme Administrative Court (NSS, AZ: 2 Azs 178/2022 of 12th October 2022) is not available to Ukrainians when concerning administrative decisions regarding granting temporary protection, unless they are rejected on the grounds of being war criminals. So in the Czech Republic, according to the Supreme Administrative Court, war criminals have the possibility to file a complaint in Czech administrative courts, but peaceful Ukrainian war refugees may not. A constitutional complaint against this is being prepared.
Another absurdity is the refusal of the Czech authorities to issue so-called aliens’ passports to those Ukrainians who have the status of temporary protection in the Czech Republic, i.e. are legally residing in the Czech Republic, but who do not have Ukrainian documents and to whom the Ukrainian Embassy in Prague does not want to or cannot issue passports (apparently, important state-owned printing plants and paper suppliers’ factories in Ukraine have been destroyed). In early November 2022, the Commission in the Ministry of Interior for Foreign Affairs rejected this in seven cases represented by bnt, which is preparing seven administrative complaints. This problem affects, conservatively estimated, about 1-2.5% of Ukrainian refugees in the Czech Republic, i.e. up to 10,000 people, but a disproportionate number of them are children, who often have no identity documents at all or were registered with their parents’ passports. If they are of compulsory school age, they cannot, for instance, take part in school trips abroad (exchange trips to England, Germany or other countries, school trips such as ski courses in Austria), in domestic sporting events or those abroad (e.g. football, volleyball or handball tournaments at home – no valid registration with the Czech sports associations –, or, for example, in Slovakia or Austria) without a valid passport. In the long run, it does not make sense for Ukrainian refugees without valid ID cards to stay in the country for a longer period of time. According to § 113 paragraph 6 lit. c) of the Czech Aliens Act (Act No. 326/1999 Coll.) the issuance of aliens’ passports to foreigners with temporary protection is to be explicitly foreseen if they do not have and cannot obtain travel documents, but the Czech administration does not apply this provision on legally absurd and completely nonsensical grounds (including the argument that Act No. 65/2022 Coll., Lex Ukraina, takes precedence over the Aliens Act). For example, in Germany and other civilised EU countries, the issuing of replacement documents according to §§ 5 and 6 of the Residence Ordinance is standard administrative practice.
UNHCR, 1 November 2022, https://data.unhcr.org/en/situations/ukraine
Communication of the German Embassy in Prague: https://prag.diplo.de/cz-de/service/05-VisaEinreise
Vander Elst-Visum: German Embassy in Pressburg (Bratislava): https://pressburg.diplo.de/sk-de/service/visa/vander-elst/2220860
Information of German Embassy in Prague (but not referring to the Vander Elst-visa): https://prag.diplo.de/cz-de/service/05-VisaEinreise/teaser-visa-langaufenthalt/1303204
application form: https://prag.diplo.de/blob/1315458/7e4290354567f5edb56441c96f2d4095/visum-vander-elst-dld-data.pdf
Visa-handbook of the AA (German Foreign Office, in German): (“Vander Elst”-Regelung / Dienstleistungserbringung: 8 Seiten, S. 609 f., Stand: März 2022 – 75. Lieferung August 2022): https://www.auswaertiges-amt.de/blob/207816/a0f24b5e2808a52f5f83c069d4b75bc0/visumhandbuch-data.pdf
Communication of the government of the Netherlands: https://www.government.nl/latest/news/2022/10/14/european-commission-extends-temporary-protection-directive
Decision of the Council of the EU on the prolongation of the temporary protection on 14 October 2022