The case concerned a request for temporary protection submitted by the spouse of an Ukrainian national, third country national from Sri Lanka. The BAMF considered that although they were married and resided in Ukraine on 24 February 2022, however the applicant did not demonstrate that he resided legally in Ukraine prior to the war outbreak, thus the application was rejected. In the request for suspensive effect pending outcome of the appeal against the negative decision, the Regional Court of Karlsruhe analysed the provisions of the EU Council Implementing Decision 2022/382 and stated that neither Article 2 (1)(c) nor Article 2(4)(a) of the Implementing Decision stipulate that the previous lawful residence of the spouse of a Ukrainian national from a third country in Ukraine is a prerequisite for the status of family member. According to Article 2 (4) of the implementing decision, it is sufficient for the family to be present and resident in Ukraine before 24 February 2022. The court underlined that the provision refers to common usage of words and neither the terms "present" nor "resident" were given the legal meaning of lawful residence. As such "Present" means that a person is present at a place for a specific reason (and "resident" means that a person resides at a specific place. The court considered that the use of the word implies that all third-country nationals who were actually living and residing in Ukraine as a family with their Ukrainian spouse on the reference date should be included as eligible persons as family members. Moreover, the court noted that the terms "present" and "residing" used in the English version and "présente" and "résidait" used in the French version do not imply, according to the general understanding of the language, that a legally lawful residence is required.

The court also made a comparison of provision with Article 2(2) and (3) of the implementing decision where the eligibility of third-country nationals is explicitly linked to the factual basis to the existence of a residence permit or other legal residence in Ukraine. The fact that third-country nationals who are also family members within the meaning of the implementing decision do not have to meet the requirements of Article 2(2) or (3) also derive from recitals 11, 12 and 13 of the implementing decision, which differentiate between the various groups of third-country nationals.

The court also clarified that the statements of the Ministry of Justice of Baden-Württemberg had to legal basis for such interpretation as it follows: " According to the BMI state letter, it is not a prerequisite that the spouse must have been legally in Ukraine. According to recital 11 of the implementing decision, the family unit is to be protected. The implementing decision serves to safeguard existing family life, but not to enable family reunification that has not previously taken place legally. Spouses who were not previously legally in Ukraine are therefore not family members within the meaning of Article 2 paragraph 1 letter c of the implementing decision." The court clarified that such interpretation is contrary to the purpose of the implementing decision.

In addition, the court referred to Recital 11 of the implementing decision which suggests that the Council did not have the intend to make legal residence a prerequisite for entitlement for third-country nationals who are the spouse of a Ukrainian national, who were resident in Ukraine and lived there with their spouse as part of a family on 24 February 2024. According to the court, the meaning and purpose of the regulation is to enable uniform temporary protection to be granted to the families that actually existed and lived in Ukraine. The Commission's communication on operational guidelines for the implementation of Council Implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and introducing temporary protection also envisages that Article 2(1)(c) of the Implementing Decision is intended to preserve the family unit that already exists in Ukraine - without the need for the third-country national to be legally resident.

The court also mentioned that a different interpretation would be contrary to Article 6 of the Basic Law and Article 8 of the ECHR on the right to family life. It concluded that for a spouse of a Ukrainian national from a third country who was resident in Ukraine on the relevant date and actually lived with him or her as a family, it should not be necessary for him or her to have previously resided legally in Ukraine, in particular with a residence permit, in order to be entitled to benefits under Article 2(1)(c), (4)(a) of Council Implementing Decision (EU) 2022/382 of 4 March 2022.

The court allowed the suspensive effect against the negative decision on temporary protection and the threat of deportation to Sri Lanka. It found that the action has prospects of success and granted also legal aid to the applicant.