A national of Turkmenistan requested the suspensive effect of the decision of the Federal Office for Migration and Asylum (BAMF) rejecting his request for being granted a residence permit based on temporary protection on 12 March 2025. The Regional Administrative Court of Berlin noted that the request for suspensive effect was admissible since, in the applicant’s interest in temporary suspension of the enforcement of the contested decision outweighed the public interest in its immediate implementation. Such balancing of interests is done by assessing the prospects of success of the appeal against the contested decision. The court affirmed that the lawfulness of refusal to be granted a residence permit under temporary protection cannot be sufficiently assessed in the brief examination for the purpose of the interim relief as it required a detailed clarification of facts in the main proceeding. The court held that the applicant was not eligible for a residence permit under temporary protection based on Section 24 of the Residence Act, but found that the prospects of success of his application for a residence permit for the purpose of exercising qualified employment pursuant to Section 18b of the Residence Act remained open.

On temporary protection, the court held that the applicant did not meet the eligibility criteria enshrined in Article 5 of the Temporary Protection Directive (TPD) nor in Article 1 of the Council Implementing Decision 2022/382. Based on Article 2(1) of the Council Implementing Decision and Article 24 (1) of the Residence Act, temporary protection applied for Ukrainian nationals who lived in Ukraine prior to 24 February 2022, to stateless or third country nationals, who were beneficiaries of international protection in Ukraine before 24 February 2022 or equivalent status, or family members of those entitled to temporary protection. Also, according to Article 2 (2) of the Council Implementing Decision, third country nationals other than Ukrainians can be granted temporary protection provided that they legally resided in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued under Ukrainian law and they cannot safely and permanently return to their country of origin. Nonetheless, the applicant did not fulfil any of the above requirements as he was holder of a temporary residence permit for study purposes.

In addition, the court held that Article 7 of the TPD allows Member States to extend the eligibility criteria to other category not covered by Article 5 of the TPD, and to grant temporary protection to third country nationals, other than Ukrainians, who were legally residing in Ukraine and were unable to safely and permanently return to their countries of origin.

The Regional Administrative Court of Berlin noted that the question of whether Germany has effectively used the possibility provided under Article 7 of the TPD to extend temporary protection to third country nationals, not included in an implementing decision of the Council of the European Union, but who have been displaced for the same reasons as the categories of persons mentioned therein and who come from the same country, has not yet been clarified by the highest court. For example, the Higher Administrative Court of Münster affirmed that this was not applicable since the possibility created by Article 7 (1) sentence 1 of the TPD to voluntarily grant temporary protection to other groups of displaced persons has been implemented (exclusively) in Section 23 of the Residence Act in accordance with the expressly formulated intention of the Federal German (national) legislature. The court affirmed that, under national law, certain administrative or political decisions may suggest, as the circular of the Federal Ministry of the Interior of 14 March 2022 on the implementation of section 24 (1) of the Residence Act, that Section 24 (1) of the Residence Act cannot be interpreted as conveying a right to a residence permit to groups of persons other than those who are granted direct temporary protection by the Council Implementing Decision 2022/382.  Other national jurisdictions held, to the contrary, that there is some evidence that the extension of temporary protection become effective since Germany immediately notified the Council of the EU and the Commission that it fulfils the obligation provided under Article 7 (1) sentence 2 of the TPD, thus beneficiaries can derive a subjective right to be granted temporary protection. The court left it for the judge assessing on merits to clarify these aspects. Nonetheless, the court ruled that the applicant has not demonstrated that he cannot return safely and permanently to his country of origin, Turkmenistan, as he failed to submit or to substantiate any concrete indications in this sense, as required by Article 2(3) of the Council Implementing Decision 2022/382. Thus, he could not derive a right under Section 24 (1) of the Residence Act.

However, the court granted the interim relief as it found substantial reasons to believe that the applicant can be granted a residence permit on grounds under Section 18 of the Residence Act, as skilled worker with academic training, for the purpose of exercising a qualified employment.