Netherlands court asks EU Court of Justice for clarification on Ukraine refugee protection

The Hague District Courtroom of the Netherlands on Friday known as on the Courtroom of Justice of the European Union (CJEU) to provide a preliminary ruling on questions relating to the extension of the Short-term Safety Directive (TPD) below Article 267 of the Treaty on the Functioning of the European Union (TFEU). TPD entitles the CJEU the jurisdiction to provide preliminary rulings in regards to the interpretation of treaties in addition to the validity and interpretation of acts of EU establishments.

In response to the refugee flows ensuing from the battle within the former Yugoslavia on the finish of the final century, the EU Council adopted TPD on July 20, 2001, to determine minimal requirements for granting non permanent safety within the occasion of a mass inflow of displaced individuals from third nations who can’t return to their nation of origin. This emergency mechanism can be activated in distinctive circumstances to stop member states’ asylum programs from changing into overloaded by mass simultaneous asylum purposes. The Netherlands carried out TPD into nationwide legislation on December 16, 2004.

Because of the armed conflicts that broke out in Ukraine in 2022, there was a mass displacement of Ukrainians into the EU. This displacement triggered the non permanent safety mechanism on March 4, 2022, and it was robotically prolonged by one yr. To offer stability and prospects for Ukrainian refugees, the Council determined in 2023 to increase the non permanent safety for folks fleeing from Russia’s battle of aggression towards Ukraine from March 4, 2024, to March 4, 2025.

In Friday’s case, a Nigerian man fled to the Netherlands as a third-country nationwide when battle broke out in Ukraine, and he already belonged to the group to which TPD utilized. Nonetheless, the Netherlands’ secretary of state adopted a former ruling to determine in February that the plaintiff’s lawful residence ended by operation of legislation on March 4, 2024, thereby giving the plaintiff 4 weeks to depart the territory of the EU.

The plaintiff argued that the return resolution, primarily based on an incorrect interpretation of TPD, was illegal for the reason that non permanent safety of third-country nationals will proceed till March 4, 2025. The plaintiff additionally acknowledged that he falls below the extension of non permanent safety by the 2023 Extension Decree.

The courtroom first overruled the secretary of state’s view that the plaintiff’s attraction is inadmissible. As as to whether the return resolution is untimely, the courtroom concluded that the secretary of state was not approved to make the return resolution on February 7, 2024, as a result of plaintiff’s lawful residence at the moment. The courtroom additionally discovered ample causes to imagine {that a} right interpretation of EU legislation allows the plaintiff to fall throughout the scope of the Extension Decree and that he’s subsequently entitled to non permanent safety till March 4, 2025.

However, the courtroom admitted that the reply to those authorized points was questionable. Subsequently, it requested the CJEU to provide a preliminary ruling on the next three questions:

Should Article 6 of the Return Directive be interpreted as precluding a return resolution from being issued on a date on which an alien continues to be lawfully residing within the territory of a member state?
Does it matter for the reply to the earlier query whether or not the return resolution features a date on which lawful residence ends, that date is within the close to future and, furthermore, the authorized penalties of the return resolution solely happen at that later time?
Ought to Article 1 of the Extension Decree be interpreted as that means that this extension additionally issues a bunch of third-country nationals who’ve already been introduced below the scope of the Short-term Safety Directive by a member state by way of the optionally available provision of Article 2(3) of the Implementation Decree, even when the member state has subsequently chosen to not supply non permanent safety to that group of third-country nationals?

In line with the choice, the courtroom will reserve any additional resolution till the ultimate judgment on the attraction.