The 3rd Senate of the Hessian Administrative Court, which is responsible for immigration law, rejected an appeal by a district against the first-instance decision granting a Ukrainian national provisional legal protection against the rejection of his application for a residence permit for in a ruling dated April 21, 2026. Even though onward migration from an EU member state is generally sufficient to negate the legal entitlement to a residence permit under § 24 of the Residence Act for persons entitled to temporary protection, in the case at hand, the prior residence in Poland on a visa did not lead to the success of the district’s appeal.
The applicant is a Ukrainian national who was residing in Ukraine on February 24, 2022, and left for Poland in April 2022 following the Russian Federation’s invasion. From there, he traveled to Ukraine on multiple occasions on a Polish D visa as part of volunteer work with a non-governmental organization. In October 2023, he entered the Federal Republic of Germany from Poland and applied to the competent district of Offenbach for a residence permit under § 24 of the Residence Act (AufenthG) for temporary protection for refugees from Ukraine. The applicant filed a lawsuit with the Administrative Court of Darmstadt against the rejection of his application and simultaneously sought preliminary legal protection. The applicant was granted preliminary legal protection, against which the district filed an appeal.
The 3rd Senate dismissed the appeal, thereby upholding the first-instance decision in its outcome. The applicant had been permitted to enter the federal territory visa-free at the time with the intention of permanent residence. The visa-free entry based on the special exemption provision for displaced persons from Ukraine was not precluded by the applicant’s stay in Poland, as the exemption requires only a direct causal link (“as a result of”) between the outbreak of war and departure from Ukraine, but not a close temporal connection between the flight and entry into the Federal Republic of Germany. A claim to the issuance of a residence permit for temporary protection under § 24(1) of the Residence Act is also not excluded in the applicant’s case solely on the basis of the – longer-term – actual prior stay in Poland. For it is not apparent that, with the issuance of the D-visa by Poland and the associated legalization of his stay there, the applicant was granted the minimum rights associated with the Mass Influx Directive, such as the rights to engage in gainful employment, to housing, to social benefits and medical care, to access to the education system, or to family reunification.
The decision is not subject to appeal in the administrative court system.
Case No.: 3 B 535/25
