Council of State pauses third-country national cases due to questions submitted to the EU court

• Rollinde Hoorntje

  Domestic Editor

The Council of State is suspending three cases involving so-called third-country nationals because the highest administrative court has requested an explanation from the European Court of Justice. Until there is an answer, the ongoing procedures will be paused. It is unclear what this means for the group’s right of residence.

Third-country nationals are people who worked and studied in Ukraine but do not have Ukrainian nationality and who fled to the Netherlands together with Ukrainian citizens because of the war. There are currently approximately 2,350 third-country nationals in the Netherlands whose future is uncertain. Their right to shelter expired at the beginning of this month. The government wants them to return to their country of origin to wait for the end of the war.

Because courts had ruled differently on the right of residence of this group and the court in Amsterdam had also previously asked questions of interpretation to the EU court, the Council of State now took a step back.

On April 2, the highest administrative court had also ruled that third-country nationals who had initiated appeal cases with the Council of State may remain in the Netherlands until there is clarity about this. A total of sixteen of these appeal cases are now underway.

On April 4, outgoing State Secretary Van der Burg announced that the departure policy for third-country nationals will remain unchanged, despite the legal uncertainty that currently exists for them. This means that “municipalities can continue to terminate reception and stop other facilities such as living allowances as of April 2”, if a third-country national has received a return decision or has tried in vain to challenge it before the administrative court, he wrote to the House of Representatives.

Third-country nationals whose (appeal) appeal is still pending or who have just been told by the administrative judge that they can stay, cannot be expelled from the shelter. They also retain the right to living allowance. According to lawyers, this difference in treatment leads to legal inequality for the group.

In recent months, there has been a lot of uncertainty about the right of residence of third-country nationals in the Netherlands. The previous ruling of the Council of State should have put an end to this. On January 17, they determined that their right to protection under the European Temporary Protection Directive ended on March 4, and they had to leave the shelter four weeks later. People with a Ukrainian passport were allowed to stay for an extra year, until March 4, 2025.

According to the Council of State, that difference was justified because Van der Burg “had decided not to grant temporary protection to third-country nationals who had a temporary residence permit in Ukraine since July 2022.” Therefore, the decision to extend temporary protection applies to Ukrainians, not to them.

However, part of this group still tried to challenge their return by opposing the return decisions that the IND had issued to them at the beginning of this year. Lower courts (sometimes) went against the decision of the Council of State, other courts ruled in line with the earlier decision of the highest administrative court.

On the day that these refugees formally had to leave the shelter, April 1, municipalities did not know whether and how they should enforce. There were several proceedings before lower courts that made varying decisions on the right of residence of third-country nationals. The courts in Arnhem, The Hague, Rotterdam, Utrecht and Zwolle followed the Council of State, while the courts in Haarlem, Den Bosch and Roermond ruled differently.

The Council of State now wants to know from the EU court whether third-country nationals should receive protection for as long as Ukrainians, or whether protection can be terminated earlier if an EU member state so wishes. The highest administrative court also asks the court to deal with these questions more quickly. The Council emphasizes that the end of temporary protection will be reached on March 4, 2025 and that an answer after that date will no longer be relevant. The judge also points out the great uncertainty for third-country nationals.