Third-country nationals from Ukraine may await the court’s ruling in the Netherlands

Third-country nationals from Ukraine (people who had a temporary residence permit in that country during the Russian invasion of Ukraine) may remain in Dutch shelter for the time being. This is evident from a ruling by the Council of State published on Thursday.

In recent months, there has been renewed discussion about whether they are still entitled to shelter and protection. Specifically, this concerns people who came to the Netherlands between March and July 2022. It is no longer clear to the Council of State either. The Administrative Jurisdiction Division therefore asks additional questions to the European Court of Justice in Luxembourg about the scope of the temporary protection directive, which was activated in March 2022 for Ukrainian displaced persons.

The Department wants to know whether third-country nationals who have registered in the Netherlands before July 19, 2022 “should receive protection for the same amount of time as Ukrainians (…) or whether protection can be terminated earlier if an EU Member State so wishes.”

In practice, this means that third-country nationals who have gone to court because they do not agree with the threat of deportation may remain in reception pending the answers from the Court.

550 interim measures

The question is what the ruling means for third-country nationals who have not yet gone to court. It is possible that Van der Burg will return to an earlier position, that third-country nationals who want to avoid deportation must apply to the court for a provisional measure: the court may then rule that the government may not deport the person in question pending a court decision. . Courts have been inundated with these types of requests in recent months, all of which have been granted. At the beginning of this month, the counter stood at more than 550 provisional measures.

Van der Burg believes that municipalities that remove third-country nationals from reception are acting “lawfully and correctly”, he wrote in a letter to Parliament at the beginning of this month, because the Council of State had ruled in January that the protection of third-country nationals from Ukraine would expire from March 4 . That statement has caused a stir among academics, lawyers and judges. The courts in Arnhem, The Hague, Rotterdam, Utrecht and Zwolle followed the judgment of the Council of State, while the courts in Haarlem, Den Bosch and Roermond came up with a different interpretation of the protection directive. Due to the resulting ambiguity, the Amsterdam court decided to refer preliminary questions to the Court of Justice in Luxembourg. These types of questions concern the interpretation and application of European rules.

Shortly after the Russian invasion of Ukraine, the European Temporary Protection Directive was invoked for Ukrainian displaced persons, who could then go to European member states for shelter, medical care, education and work.

Also a victim of Russian aggression

Outgoing State Secretary Eric van der Burg (Asylum, VVD) decided at the time that people who had a temporary Ukrainian residence permit during the raid (so-called third-country nationals) would also receive protection under the directive. After all, they were also victims of Russian aggression, Van der Burg reasoned. In addition, the already overburdened Immigration and Naturalization Service (IND) would be spared work, as displaced persons from Ukraine would not have to apply for asylum. This ‘generous’ application of the directive was also followed by countries such as Finland, Spain and Ireland.

In July 2022, Van der Burg reversed his decision, following unsubstantiated signals of abuse. Since then, there has been legal discussion about what should happen to the group of third-country nationals who had already registered in the Netherlands before this decision. This question is still open. Both the Amsterdam District Court and the Council of State have asked the Court of Justice for an accelerated hearing of their questions, due to the fact that the temporary protection directive will expire on March 4, 2025. Normal proceedings before the Court normally take at least one to two years.

The group of third-country nationals involved in this legal discussion has now shrunk from almost 5,000 to 2,400 people, an IND spokesperson said in response to questions. NRC.

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