The case concerned the question whether the State Secretary could end residence permit based on temporary protection on 4 September 2023 for third country nationals, holders of temporary residence permit in Ukraine, prior to the breakout of the war in Ukraine. The Council of State ruled that the State Secretary for Justice and Security was not allowed to end the temporary protection on the 4 September 2023 for this category of beneficiaries of temporary protection and clarified that the duration of the temporary protection must be in line with the provision of the EU Directive on Temporary Protection (TPD).
The Council of State ruled that according to Article 4(1) of the TPD, the State Secretary is not authorised to terminate temporary protection independently before the end of the one-year period. In addition, the Council of State noted that since July 2022, the State Secretary is no longer granting temporary protection to third-country nationals who had a temporary residence permit in Ukraine.
The Council of State reiterated that the EU decided to implement the TPD for people fleeing Ukraine in order for them to get quick access to protection in Europe. The implementation of the TPD concerned not only Ukrainian nationals, but also included stateless persons and people of other nationalities who had asylum or permanent residence in Ukraine. In addition, Member States were free to choose whether to extend this protection to people who had a temporary residence permit in Ukraine, for example for work or study. Initially, at the beginning of 2022, the State Secretary decided to also offer temporary protection to this group of third-country nationals. However, in July 2022, the State Secretary decided to stop this approach because it has noted that the influx was too high and third-country nationals were often able to return safely to their country of origin. For third-country nationals who were already in the Netherlands, the State Secretary ended their temporary protection on 4 September 2023.
The Council of State decided in this ruling that the Temporary Protection Directive does not provide a legal basis for ending temporary protection earlier than provided in the Directive and even when Member State choose to offer protection to other categories, this protection derives from the directive and its provisions apply for the duration of the temporary protection. As such, the Directive does not provide a legal basis to terminate temporary protection earlier than provided therein.
The Council of State ruled that it follows from the Temporary Protection Directive that the status of the applicant ends on 4 March 2024, in contrast to the temporary protection of Ukrainians, stateless persons and people of other nationalities who had asylum or a permanent residence permit in Ukraine. They will retain temporary protection until 4 March 2025. The Council of State noted that since July 2022, the State Secretary has no longer granted temporary protection to third-country nationals who had a temporary residence permit in Ukraine. Therefore, this category is not covered by the decision of the Council of the European Union of October 2023 extending temporary protection until 4 March 2025.