New rules for the entry and stay of foreigners in Ukraine

15.04.2018 | Legal

The issue of legal entry and residence of foreigners and stateless persons on the territory of Ukraine has become increasingly important in recent years.

Firstly, this is due to the gradual “erosion” of the border with Europe and the attraction of new and new projects and investments, the hiring of foreign experts and specialists by Ukrainian firms.

Secondly, this issue and events in the East and related restrictions related to the entry of foreigners to Ukraine have not passed. At the same time, on the contrary, the changes in legislation that took place in September 2017 indicate a positive trend towards reforming the legal system by introducing a more loyal, simpler and more transparent procedure for entry and residence of foreigners in Ukraine.

Entrance and registration in Ukraine: how to enter and stay in Ukraine without problems

First of all, when considering the issue of entry of foreigners into Ukraine, one can mention the rather well-known decision of the National Security and Defense Council of 10.07.2017, which concerns the strengthening of control over the entry of foreigners into Ukraine. Mistakenly, the majority believes that it concerns exclusively Russian citizens, but it is not so: Russia is mentioned in the decision along with other countries.

According to the document during the border control, from 01.01.2018, the fixation of biometric data of foreigners (that is, the impressions of 5 fingers of the right hand) are provided, except for certain categories of persons – heads of states, cruise travelers, children, etc.

In addition, the gradual introduction of such a procedure as an e-mail to enter Ukraine, but so far this system is not working. Also, among other things, the NSDC attributed the Russian Federation to the list of countries of migration risk (70 of them in total).

Considering the grounds for the legal residence of foreigners on the territory of Ukraine, the speakers identified the following: a person is an immigrant, a volunteer, correspondent of foreign media, a student, an employee at a Ukrainian enterprise, a founder / participant / beneficiary of a Ukrainian legal entity, etc. The last two grounds are the most common in the modern business environment, as a result of which they have been given special attention.

So interesting are the changes to the legislation that took place in September 2017 and which were discussed above regarding the new grounds for obtaining a temporary residence permit in Ukraine for a foreigner who owns an enterprise. Such person must meet the 3 main criteria: 1) to be the founder, participant and / or beneficiary of a legal entity; 2) arrive in Ukraine in order to control the activities of such an enterprise; 3) the size of the share of the foreign ownership in the authorized capital of the enterprise should be not less than 100 thousand euro at the official rate of the NBU.

How to get work permit in Ukraine: long-awaited relief or cosmetic changes?

Prior to inviting a foreigner to work in Ukraine, the future employer must obtain a permit from the Employment Center for the use of foreign work (permission).

Comparing the list of documents to be submitted for this permit in 2008 and 2018, the difference is evident. Ten years ago, the applicant requested a list of 15 documents, some of which did not concern the employment of a foreigner or personnel issues in general, and therefore the preparation of the 5 documents required now should not be a big concern for an enterprise that invites a foreigner to work, and is a significant relief for him. In addition, documents can be filed at any Employment Center, because on this issue in Ukraine, the principle of extraterritoriality.

The package of documents is mostly standard and includes a statement, a copy of the draft employment contract with a foreigner, a copy (with a translation) of his passport and photographs. At the same time, the fifth “last” document is individual for different categories of employees. This is another innovation of recent legislative changes, which set certain additional requirements for the working conditions of the invited foreign worker.

Thus, according to the general rule, a foreigner’s salary must be determined in an employment contract and may not be less than 5, 10 or 50 minimum wages (depending on the category of employee and type of enterprise). At the same time, there is no such requirement for creative professionals and, for example, IT specialties (that is, the main thing is that it is greater than or equal to 1 minimum wage).

In addition, it provides for the possibility of obtaining a permit for a different period: for six months, a year or three years. Depending on this, a different fee for obtaining a permit is established (for example, for 3 years approximately 10.5 thousand hryvnias). Instead, going ahead, we note that the procedure for extending the foreigner’s work permit certificate for a new term is complicated (additional requirements are set for the number of employees at the enterprise or the amount of corporate income tax paid by the employer).

Residence permit: new rules, practical tips

As to the temporary residence permit (certificate) issued by a foreigner on the basis of a permit issued by the State Migration Service, there are also certain legislative changes.

Firstly, the list of documents that need to be submitted for obtaining a certificate decreases, and at the same time, the term for which it is issued is changed. In addition, it provides for the possibility of submitting documents by power of attorney. Also, for some categories of persons (for example, children under the age of 16 or in the case of extension of the term of the card) the need to obtain a long-term visa before filing documents is canceled, which undoubtedly is a significant relief.

At the same time, there are certain legislative conflicts, in particular, regarding the mandatory submission of foreigners’ identification code for obtaining a certificate. Thus, the standard law does not require the submission of this document, however, the sub-legislative level requires the provision of a copy of such a code if the foreigner is registered with taxpayers in Ukraine. In practice, the authorities of the migration service, this certificate is also required.

Violations and responsibilities: risk areas for a foreigner and employer

Among the most likely consequences of violating legislation when obtaining a permit or certificate or using a foreigner’s work, one can distinguish the following: 1) suspension of consideration of the relevant application; 2) refusal to issue, renew or amend the permission; 3) cancellation of permit or certificate; 4) imposing financial sanctions on the employer (fines in the amount of 10-20 minimum wages); 5) bringing to the administrative responsibility of officials of the employer and / or foreigner.

For example, one of the court cases (№ 815/2580/16, court decision of 13.06.2016), which was concerned with the requirement of the enterprise to oblige the Employment Center to extend the permit, can be considered. The decision of the court to satisfy the claim was denied, since during the time of the permit, the foreign worker worked as a “technological engineer”, and not “chief engineer-technologist” (as indicated in the permit), indicating that the employer misused the work of f0reigner for actual post.

Summarizing, we note that the reform of the legislation on the entry and stay of foreigners on the territory of Ukraine follows a clear liberalization and simplification of the procedure, the minimum number of documents and actions required to be made by a foreigner is foreseen. Instead, a number of other requirements are set, in particular, for an employer who invites a foreigner to work for which the employer can carry not only a potential, but rather a real responsibility. Moreover, not all innovations have a positive effect on improving the investment climate in Ukraine and attracting foreign experts and experts to cooperation, and therefore the legislation in this area needs to be finalized.

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