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Preliminary questions regarding non-Ukrainian third-country nationals

Since last summer, there has been much unclarity about the question whether it is possible to end the temporary protection for “third-country nationals” earlier than the temporary protection of other displaced persons from Ukraine. These are persons of non-Ukrainian nationality who fled Ukraine while they had a temporary residence permit there. Some of them received temporary protection in the Netherlands.

It has now been established that the Minister for Migration was not allowed to end the temporary protection prematurely as of September 4th, 2023. That is what the Council of State ruled. However, to the surprise of many, the Council of State also determined that the temporary protection for this group ends on March 4th, 2024.

In recent weeks,  many cases were brought before several courts in an attempt to obtain clarity about the legal accuracy of the conclusion that the temporary protection for this group indeed ended on March 4th.. Some of our colleagues have  also represented clients in similar cases. Because it is very important that European Union (EU) law is correctly interpreted and applied, they asked the judges to refer cases to the Court of Justice of the European Union (Court of Justice) and ask for an explanation of the correct reading of the law in a preliminary ruling. The purpose of this procedure is to erase any ambiguities about the correct interpretation of EU law for now and in the future. The downside of this procedure is that it can take a very long time. This means chances are that the Court of Justice will not provide clarity before March 4th, 2025.

The rulings of the courts varied widely; some judges ruled that the temporary protection for this group will continue until March 4, 2025, the date when temporary protection currently ends for all displaced persons from Ukraine. They noted that asking preliminary questions to the Court of Justice is going to take too long. Other courts determined that there is no reason to deviate from the conclusion of the Council of State , and that the third-country nationals must leave the Netherlands as of March 5th, 2024.

On 29 March 2024, the Amsterdam district court issued an interlocutory ruling in a case brought by a respected colleague. The court referred the case to the Court of Justice in the hopes that it will provide answers in an expedited procedure. One of the questions the court has asked is whether the group of third-country nationals granted temporary protection in the Netherlands is also covered by the European Council’s latest decision that extends temporary protection until March 4th, 2025. This will undoubtedly stir up a lot of reactions in society, the political arena, but especially among the group of third-country nationals who have been living in uncertainty for months now. At this time, it is unclear what this latest development means for this entire group.

We hope that the Court of Justice will answer the court’s preliminary questions soon and finally provide clarity about the fate of this group. In the meantime, we will continue our efforts to ensure that our clients can await the outcome of the preliminary procedure in the Netherlands, and no irreversible actions take place.

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