Non-Ukrainian third-country nationals with temporary right of residence retain temporary protection for now

There has been much discussion recently about the position of so-called “third-country nationals” with a temporary residence permit in Ukraine (further: third-country nationals). Some of them fled the war in Ukraine in early 2022 and were granted rights in the Netherlands based on a generous application of the Temporary Protection Directive (hereinafter: the directive). 

The directive was initially applied to this group without any additional conditions. For example, it would not be assessed whether the third-country national could return safely and permanently to a third country of origin. The reason was, that such an assessment would not be in line with the rationale behind the directive, to avoid the overburdening of asylum systems by not making an individual asylum assessment. Some 4,500 third-country nationals were entitled under the directive to temporary protection benefits such as municipal shelter and the right to work without a work permit.

Minister for Migration Eric Van der Burg later decided to no longer apply the directive to third-country nationals with a temporary right of residence who fled Ukraine as of July 19, 2022. He also decided that the temporary protection already granted to the 4,500 third-country nationals would be terminated as of March 4, 2023, despite the fact that temporary protection for other displaced persons from Ukraine was automatically extended, at least until March 4, 2024.  For practical reasons, the termination was then postponed until Sept. 4, 2023. As of that date, the now 2,900 remaining third-country nationals would no longer be allowed to use the municipal shelter, would have to quit their jobs or studies and leave the Netherlands unless they had another residence option.

Meanwhile, the question arose whether the Minister had the legal authority to prematurely terminate temporary protection for a specific group. For this reason, the IND, the Dutch Council for Refugees and several lawyers started a pilot project, hoping to get a court ruling as soon as possible on this question that has not previously been the subject of proceedings. Among others, our lawyers Lotte van Diepen and Thomas van Houwelingen-Boer, assist several members of this group in the court proceedings. First instance judges came to divergent rulings in recent weeks.

In a pilot case brought by Lotte van Diepen, the Amsterdam district court ruled last Friday, Sept. 1 that the Minister did not have the authority to effectively terminate the temporary protection granted to third-country nationals on Sept. 4, given the provisions of the directive. 

The court ruled that the duration of temporary protection granted must comply with the directive, which states that temporary protection generally ends only when the maximum duration (3 years) has expired, or when the European Council decides to do so by a qualified majority. Third-country nationals from Ukraine to whom the directive applies should, according to the court, be able to benefit from the rights resulting from it for as long as the directive is active. The termination of protection as of Sept. 4 is considered contrary to European law. Earlier, the district court in Roermond reached a similar verdict. Other courts followed the Minister’s position that he can terminate the temporary protection as of Sept. 4.

The court rulings are currently being appealed by the parties. A final judgment by the highest administrative judge of the Administrative Jurisdiction Division of the Council of State (Council of State) is not expected until November 2023. Meanwhile, third-country nationals would lose their rights as of Sept. 4, 2023.

Last Friday however, the Council of State’s preliminary injunction judge ruled that a third-country national who had appealed an adverse court ruling may await that final judgment and retain rights arising from temporary protection until then. The preliminary injunction judge thereby suspended the legal effects of the court’s ruling. Although the ruling applies only to the third-country national in question, the same will be ruled in other cases.

As a result, the Minister announced in the evening of Saturday, September 2, that he is freezing all decisions to terminate the temporary protection as of September 4, 2023, until the Council of State has ruled on the high appeal. This means that third-country nationals who have received such a decision will retain their rights under the directive for the time being, including the right to municipal shelter and access to work without a work permit.

The Minister however still takes the position that he has the authority to end the temporary protection for of this group of third-country nationals by September 4^th and that the decisions are therefore lawful. It is therefore of utmost importance that third-country nationals lodge a timely appeal (within four weeks) against the decision they have received.

For more information, please contact Lotte van Diepen or Thomas van Houwelingen-Boer.

Media

Following the Minister for Migration’s plan to terminate the Temporary Protection of third country nationals from Ukraine, Lotte van Diepen and her client were interviewed by the Deutsche Welle. The article including the interview can be viewed here.