Foreigners in Romania - questions regarding the legal regime of employment agreements and the right of stay during the state of emergency

The measures adopted by the authorities in order to prevent the spread of COVID-19, as well as the measures ordered by employers during the state of emergency regarding individual employment agreements are of nature to raise certain questions regarding the effects on the employment regime and residence of foreigners on the territory of Romania.

Among the most frequent aspects that foreigners in Romania may encounter during this period, we mention the following:

What happens to foreigners whose individual employment agreements have been suspended?

Emergency Ordinance no. 30/2020 for amending and supplementing some enactments, as well as for establishing measures in the field of social protection in the context of the epidemiological situation determined by the spread of coronavirus SARS-CoV-2 provides that during the state of emergency established by the Decree no. 195/2020 regarding the establishment of the state of emergency on the Romanian territory, for the period of temporary suspension of the individual employment agreement, at the initiative of the employer, according to art. 52 para. (1) lit. c) of Law no. 53/2003 - Labour Code, as a result of the effects produced by the SARS-CoV-2 coronavirus, the indemnities from which the employees benefit are established at 75% of the basic salary corresponding to the job occupied and are supported from the unemployment insurance budget, but not more than 75% of the average gross salary provided by the Law on the state social insurance budget for year 2020 no. 6/2020.

This legal provision applies to individual employment agreements that have been suspended under art. 52 para. (1) letter c) of Law no. 53/2003 - Labour Code - due to temporary interruption or reduction of activity, without termination of the employment relationship, for economic, technological, structural or similar reasons - regardless of whether the employee has Romanian citizenship or is a foreigner and works in Romania under an individual employment agreement, so only for this reason of suspension of the individual employment agreement can employees benefit from technical unemployment.

Unemployment is regulated by Law no. 76/2002 regarding the unemployment insurance system and employment stimulation, and according to art. 77 para. (5) of the Emergency Ordinance no. 194/2002 regarding the regime of foreigners in Romania, unemployment does not represent a reason for revoking the right of temporary stay for work purposes during the period when the foreigner benefits from unemployment indemnity, according to the provisions of Law no. 76/2002.

Otherwise, for another reason of suspension of the individual employment agreement, other than the one mentioned above, the right of foreigners to stay on the Romanian territory could be affected.

What happens if the residence permit or the work permit expires during the state of emergency?

According to art. 14 of Annex 1 to Decree no. 195/2020 regarding the establishment of the state of emergency on the Romanian territory, the validity of the documents issued by the public authorities that expires during the state of emergency is maintained.

If foreigners are absent from the Romanian territory during the state of emergency due to traffic restrictions, their absence impacts the right to long-term stay?

As a rule, the right of long-term residence ceases, among other things, in case of absence from the territory of the Romanian state for a period longer than 12 consecutive months, except in the situation where, during this period, the foreigner benefited from a right of temporary residence in a Member State of the European Union or in which the holder of the long-term right of residence is a minor, and one of the parents is a Romanian citizen or holder of a right of residence on the territory of Romania or in case of absence from the territory of the Romanian state for a period longer than 6 consecutive years, even if during this period he benefited from a right of temporary residence in a member state of the European Union, according to art. 70 para. (3) of the Emergency Ordinance no. 194/2002 regarding the regime of foreigners in Romania.

However, in the particular context generated by the COVID-19 pandemic, the General Inspectorate for Immigration clarifies that during the state of emergency it is not considered absence from the Romanian territory and the conditions for granting, terminating or revoking the right of long-term residence will not be affected.