EU Court: Netherlands can return some third-country nationals displaced by Ukraine war

The Dutch government can choose to end the temporary protection of some people who are not Ukrainian citizens, but were living in Ukraine when the war with Russia intensified in 2022. The ruling issued by the Court of Justice of the European Union on Thursday found that the Netherlands is allowed to stop hosting those displaced persons who have not been granted permanent residency in Ukraine.

The issue began when the previous Cabinet, in a caretaker status, chose in March to stop protecting those third-country nationals who had temporary residency in Ukraine, such as some foreign students and workers. The consequences for them are severe, as they face losing work permits, use of the education system, and council housing, and must try to obtain legal residency another way.

In Thursday’s ruling, the EU Court of Justice said European Union law determined that Member States must extend protection to certain specific groups of people displaced by the war in Ukraine. This includes Ukrainian nationals and their family members, stateless persons and third-country nationals eligible for asylum for other reasons and their family members, and those stateless persons and third-country nationals who have a permanent residence permit in Ukraine. In case of the latter, those individuals mus also be unable to safely return to their home country.

That said, the governments of EU Member States can decide on their own to grant temporary asylum to other groups of people displaced by the war. The court ruling determined that this protection may be withdrawn earlier than what is mandatory under EU law. At that point, individuals may be subject to a return decision.

“The Netherlands authorities initially granted temporary protection to all holders of a Ukrainian, including temporary, residence permit. However, those authorities subsequently decided to limit such protection to a more restricted category of persons, namely holders of a permanent Ukrainian residence permit,” the court wrote in a statement. “Several persons who do not hold such a permanent residence permit but who had already been granted optional temporary protection in the Netherlands brought proceedings before the Netherlands courts.”

The court added emphasis to stress that this decision was both optional and temporary. “Member States may decide on the duration of the optional temporary protection which they grant, provided that it does not begin before and does not end after the temporary protection granted by the Union institutions.”

The Cabinet’s decision in March triggered a string of lawsuits to stop the policy change in the Netherlands, which led to conflicting rulings on temporary injunctions by district courts. That prompted the country’s highest administrative court, the Council of State, and the Amsterdam branch of the District Court of The Hague to ask the European court to review the matter.

The ruling is in line with advice that the court previously received from the Advocate General’s office.