The applicant has Tanzanian nationality and has a temporary residence right in Ukraine, not for international protection reasons, and valid between 27 August 2021 until 31 October 2022. After the war broke in Ukraine, the applicant left to the Netherlands and was granted temporary protection on 22 March 2022.

In the Netherlands, the State Secretary constantly updated the House of Representative on the way it implemented the amendment of the Aliens Act for implementation of the Council Directive no. 2001/55/EC on temporary protection Directive 2003 on temporary protection, including the optional provision of the Implementing Decree. By letter of 18 July 2022, it informed and explained to the House of representatives his decision to end temporary protection to those third country nationals who had a temporary residence permit in Ukraine as of 4 March 2023. The State Secretary explained the decision due to signals that a higher influx of third-country nationals from other (European) countries under the directive in the Netherlands and therefore have rights to reception and facilities. The State Secretary further mentioned that there were signals that the scope offered by Dutch regulations was being abused. On 17 August 2022, the State Secretary published in the Government Gazette of 25 August 2022, the amendment of the Aliens Regulations 2000 (VV) where it added a new Article 3.9a 11as an elaboration of the parliamentary letter. 

By letter of 10 February 2023, the State Secretary sent another letter to the House of Representatives to explain its decision to extend temporary protection for those third country nationals from 4 March 2023 to 4 September 2023. The State Secretary has amended the Aliens Act in this sense again on 1 March 2023. Based on the letter of 18 July 2022, the State Secretary informed the applicant by letter of 24 November 2022 that temporary protection will end from 4 March 2023, then it sent another one on 15 February 2023 to inform that temporary protection will be extended until 4 September 2023.

The applicant contested in the appeal the competence of the State Secretary to terminate temporary protection and claimed that this can be done only by the Council of the EU. The court of the Hague seated in Rotterdam stated that Member States are free to apply or not optional provisions of the Implementing Decree, as it falls under the autonomy of each Member State. The court considered that the State Secretary has properly motivated and reasoned the decision to no longer apply the optional provisions and thus to terminate the protection.

On the question of whether the principles of the EU preclude the termination of the temporary protection, the court agreed with the applicant that there is a difference between those who were granted protection and those who never received protection under this directive. The applicant belongs to the groups who will be deprived of protection and thus disadvantaged. With regard to the principle of certainty, the court noted that the State Secretary made no concrete or ambiguous promises to the applicant with regard to temporary protection and that although at the beginning the intention was to provide for a ‘generous application’ of the directive, the situation has changed, and those third country nationals can safely return to their countries of origin. The court concluded that the decision to terminate temporary protection is not contrary to the principles of legal certainty and confidence.

On the question whether the decision to terminate temporary protection is balanced, the court noted that the objectives if the Directive and the Implementing Decree is to offer protection until these third country nationals could return safely to their countries of origin. When these third country nationals will return, there will be more space in the municipal reception facilities. Although the applicant rightly argued that terminating the protection could increase the pressure on the asylum chain, the State Secretary has postponed the termination from 4 March 2023 to 4 September 2023 for that reason as to give the State Secretary more time and space to map out the consequences of the termination and, if necessary, to act. In the meantime, the State Secretary has already processed several asylum applications from third-country nationals, and it noted that many third-country nationals with temporary protection have not responded to a letter from the State Secretary asking whether they wish to continue their asylum procedure. Consequently, the asylum applications of those third-country nationals were not processed. Therefore, it is not certain that the asylum procedure and reception at the COA after 4 September 2023 will be seriously burdened with this group of third-country nationals.

On the individual circumstances, the court noted as consequences for the applicant in case of termination of temporary protection that he will lose municipal shelter and the right to work. The court stated that the applicant did not bring forward any information to substantiate that termination of temporary protection after 1,5 years instead of the maximum of 3 years would have any disproportionate consequences for him. The appeal was rejected as unfounded.