The 3rd Senate of the Hessian Administrative Court ruled on 13 May 2024 (Ref.: 3 B 791/23) that foreign nationals from third countries who had a temporary right of residence in Ukraine and were displaced as a result of the war are not entitled to a residence permit under Section 24 (1) of the Residence Act. Previously, such foreigners (e.g. students or employees) had been granted a residence permit if it was not reasonable or possible for them to return safely and permanently to their home country.
According to the decision of the Third Senate, Section 24 (1) of the Residence Act only applies to displaced persons who are entitled to a favourable treatment under Union law, i.e. Implementing Decision (EU) 2022/382. Implementing Decision (EU) 2022/382 is directly binding only with regard to the following categories of persons who were displaced from Ukraine on or after 24 February 2022 as a result of the military invasion by Russian forces
- Ukrainian nationals who were resident in Ukraine before 24 February 2022,
- stateless persons and nationals of third countries other than Ukraine who enjoyed international protection or equivalent national protection in Ukraine before 24 February 2022, and
- family members of the above-mentioned persons.
- Stateless persons and nationals of third countries other than Ukraine who can prove that they were residing lawfully in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law and who are unable to return to their country or region of origin in a safe and durable manner.
The Court notes that foreign nationals from third countries with a temporary right of residence who are not among the above-mentioned beneficiaries could obtain a residence permit under Section 23(2) of the Residence Act, but that the conditions for such a right of residence are not met. The possibility of admitting displaced persons from Ukraine under Section 23 of the Residence Act exists not only for the admission of displaced persons who are not directly covered by Implementing Decision (EU) 2022/382, but also in the event that the Council Decision expires and can no longer be extended in accordance with Article 4(2) of Directive 2001/55/EC.
In doing so, the Court also indicates a way in which the residence rights of displaced persons from Ukraine could be extended. As an extension of the residence rights of displaced persons from Ukraine beyond 4 March 2025 is not possible under EU law, a follow-up regulation would have to be found to prevent displaced persons from switching to the asylum system.
