Spain

Temporary protection procedure compared to asylum procedure in Spain for self-employed Ukrainian nationals providing services as independent contractors (i.e. not as employees) without the need to register their activity/business in Spain

Spain has issued two regulations that apply and extend the special protection regime of Directive 2001/55/EC and Implementing Decision (EU) 2022/382. These are Order 169/2022, of March 9 and Order 170/2022, of the same date.

It is a much simpler and faster procedure than the asylum application. In essence it can be summarized as follows:

The procedure can be initiated by:

(1) Ukrainian nationals residing in the Ukraine before 24 February 2022.

(2) Stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022.

(3) Ukrainian citizens legally staying in Spain before 24 February 2022 who, as a result of the armed conflict, cannot return to the Ukraine.

(4) Third-country nationals or stateless persons legally residing in the Ukraine pursuant to Ukrainian law, who are unable to return to their country or region.

(5) Ukrainian citizens irregularly living in Spain before 24 February 2022 who, as a result of the armed conflict, cannot return to the Ukraine.

(6) Family members of the persons referred to in points 1, 2, 3 and 4.

An application is made in certain police stations and can be formalized as soon as the interested party enters Spain. The only requirement is to prove that the applicant belongs to one of the above mentioned groups.

At the time of the application, an identification number (NIE) is assigned to the applicant and they are granted a provisional residence permit and are entitled to the legally established benefits (schooling for minors,
public health care, etc.).

The resolution is issued within 24 hours. The granting of the temporary authorization implies authorization of residence and work, which includes employment and self-employment.

​The permit will have a 1-year duration. It will be automatically renewed for another year unless the relevant authority determines that it is not necessary pursuant to the situation in the Ukraine at that moment. Afterwards, the authorities, again depending on the social, political and military context in the Ukraine, can allow for an additional 1-year renewal.

Therefore, if the applicant belongs to any of the groups that benefit from temporary protection, it does not make sense to resort to the general asylum regime (longer, more difficult to obtain and without an immediate work permit).

Compared to the previous regime, the asylum application only entitles the applicant to certain public assistance and may take six months to be resolved. There is no automatic granting (applications are studied on a case-by-case basis) and there is no work permit until it is granted.

Possibility of legally exercising the activity in Spain without registering with the national authorities

The protection regime is based on the simplicity and speed of obtaining permits to reside and work in Spain. Once obtained, the requirements are the same as for any other citizen.

Therefore, they must register with the tax and social security authorities if they want to provide services as independent contractors.

There is no specialty for Ukrainians in this matter. Therefore, at the time, they will have access to permanent residence if they meet the following requirements:

• Not to be irregularly in Spain,
• Not to have a criminal record in Spain and in their previous countries of residence for existing crimes in the Spanish system.
• Not to be forbidden from entering Spain nor to be listed as not acceptable.
• To have resided in Spanish territory for five years. They may also have access to permanent residence in their refugee status.

Does the time of temporary protection count towards obtaining permanent residence?

The time of temporary protection does count towards obtaining permanent residence.

Is it possible to apply for asylum after the temporary protection period?

As long as the specific protection for Ukrainians is in force, there is no point in resorting to the general asylum procedure. If the specific protection expires, Ukrainians could have access to the general asylum regime if the requirements are met.

Is the relationship between a self-employed person (acting as an independent contractor) and Ukrainian/EU/non-EU registered legal entity recognised as an employer-employee relationship?

It is possible that the relationship be classified as an employment relationship by the Spanish Courts or the Work Inspectorate if the characteristics of an employment relationship under Spanish law are met. This should be analysed on a case by case basis.

The risk exists irrespective of whether the employer is Ukrainian, EU or non-EU registered. However, if the employer is not registered in Spain the risk is less likely to materialize. Typically this risk materializes when the relationship with the independent contractor is terminated and they bring a claim for dismissal or in case of accident or injury.

The consequences from an employment perspective would be the following:

• In case of termination by the employer, the self employed person would be entitled to a severance compensation for unfair dismissal amounting to 33 days of salary per year of service.
• The employer would be liable for the payment of social security contributions that would be due if the person was considered an employee (with a 4-year statute of limitation) + a 20% surcharge. This could amount to a maximum of approximately 70,000 €
• A sanction ranging from 3,750 € to 12,000 € for not registering the independent contractor as an employee in the Social Security.
• A sanction ranging from 100% to 150% of the unpaid Social Security contributions. This could amount to a maximum of 90,000 €.
• In the case of employment for more than four years, the company could also be partially liable for the social security benefits (unemployment, sick leave, retirement or disability pensions) to which the employee is entitled.

Schengen 90/180 rule

Spain does not have any specific regulation on this matter, so it is necessary to follow the provisions of the Council Implementing Decision (EU) 2022/382: no visa and the possibility of travelling for 90 days within a period of 180 days within the EU + rights derived from temporary protection only in the Member State that issued the residence permit, without prejudice to the possibility of obtaining it in another state. Therefore, if international protection is granted in Spain, it will only give the right to reside and work in Spain (and not in another EU country).