Council of State asks EU court if NL can deport third-country nationals from Ukraine

The Council of State has asked the Court of Justice in Luxembourg for clarity on whether the Netherlands can deport third-country nationals from Ukraine while still offering protection to Ukrainian nationals who fled here. The Netherlands’ highest administrative court asked the European Court of Justice to urgently answer this question due to the great uncertainty third-country nationals currently live in.

The court in Amsterdam previously submitted questions on this matter to the European Court of Justice in Luxembourg. The Council of State reiterated these questions and asked for a quick response.

Third-country nationals are people who lived in Ukraine on a temporary residency permit when Russia invaded and then fled to safe countries in Europe along with Ukrainian refugees. In the Netherlands, around 2,500 people are involved, mostly students and migrant workers. They initially had the same protection as Ukrainian refugees until State Secretary Eric van der Burg (Asylum) decided to revoke their right to shelter. He argued that they could safely return to their country of origin.

In January 2024, the Council of State ruled that the protection of third-country nationals could end on 4 March 2024, when the current protection measure that covered them ran out. The European Union extended the protection for Ukrainian refugees until 4 March 2025, but the Council of State ruled that the Netherlands did not have to include third-country nationals in that extension.

Van der Burg implemented that Council of State ruling, ending the right to shelter for third-country nationals on 4 March 2024, giving them until 2 April 2024 to leave the Dutch shelters.

Dozens of third-country nationals challenged their impending deportation in court, resulting in very different and sometimes contradicting rulings. The courts in Arnhem, The Hague, Utrecht, Rotterdam, and Zwolle ruled that third-country nationals could be deported. The courts in Den Bosch, Haarlem, and Roermond ruled that third-country nationals should get the same treatment as Ukrainian refugees. The Amsterdam court eventually asked the European Court of Justice to weigh in on the matter.

On April 3, the Council of State ruled that the third-country nationals in the Amsterdam case could retain their right to shelter until the European Court of Justice answered the Amsterdam court’s questions. At the time, a spokesperson for the Council of State said that the ruling does not automatically apply to all third-country nationals in the Netherlands, but rulings by the highest administrative court are indicative. “So if other third-country nationals in the same situation come to us, they could receive the same ruling.”

The next day, State Secretary Van der Burg said that the Council of State ruling did not alter the fact that municipalities could decide to evict third-country nationals from their shelters. According to the State Secretary, the ruling applied only to the six third-country nationals involved in the Amsterdam case, the others’ right to shelter had expired.

Due to this uncertainty and to prevent further lawsuits that would likely favor the third-country nationals after the April 3 ruling by the Council of State, most Dutch municipalities decided to allow them to stay for the time being, though a few did evict people from their shelters.

The matter has caused much confusion and uncertainty in the Netherlands. Therefore, the Council of State has joined the Amsterdam court in asking for clarity from the European Court of Justice. It asked whether third-country nationals with a temporary residence in Ukraine should receive the same protection as Ukrainians and for the same duration, or whether the Netherlands can terminate their protection earlier.

The Council of State asked the European court to answer these questions quickly, stressing the uncertainty third-country nationals currently face. “This is partly because the State Secretary for Justice and Security only offers protection to third-country nationals who are provisionally entitled to temporary protection due to a court ruling. Municipalities also deal differently with these third-country nationals.” It has paused all appeals on this matter until it hears from the European Court of Justice.