State Council Suspends Cases Involving Third-Country Nationals Amid Legal Uncertainty

• Rollinde Hoorntje

  Domestic editor

The State Council suspends three cases related to third-country nationals, as the highest administrative court has requested an explanation from the European Court of Justice. Until this is answered, the procedures are ongoing put a stop to it. It is not clear 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 around 2,350 third-country nationals in the Netherlands whose future is uncertain. The right to shelter ended at the beginning of this month. The government wants them to return to the country they came from to wait for the end of the war.

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

On April 2, the highest administrative court already confirmed that third-country nationals who had initiated appeal proceedings with the Council of State can remain in the Netherlands until this is clear. Sixteen of these appeal cases are now ongoing.

On 4 April, outgoing Secretary of State Van der Burg announced that the exit policy for third-country nationals will remain unchanged, despite the current legal uncertainty for them . This means that “cities can continue to end reception and stop other facilities such as subsistence allowances as of April 2”, if a third country national has decided to return or has tried in vain to challenge 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 a living allowance. According to lawyers, this difference in treatment leads to legal inequality for the group.

In the last few months, there has been a lot of uncertainty regarding the right of residence of third-country nationals in the Netherlands. The previous ruling by the Council of State should stop this. On January 17, they decided that their right to protection under the European Temporary Protection Directive expired on March 4, and they had to leave the shelter four weeks later. People with a Ukrainian passport were allowed to stay for an additional year, until March 4, 2025.

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

However, part of this group was still trying to challenge them to return by opposing the return decisions that the IND issued to them at the beginning of this year. Lower courts (sometimes) went against the decision of the Council of State, other courts ruled according to an earlier decision from the highest administrative court.

On the day these refugees had to formally leave the shelter, April 1, the cities did not know if and how they should act. There were several proceedings before lower courts which made different 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 find out from the EU court whether third-country nationals should receive protection as long as Ukrainians, or whether protection can be terminated earlier if an EU member state wishes. The highest administrative court will also ask the court to deal with these questions more quickly. The Council confirms that the end of temporary protection will be reached on 4 March 2025 and that a response after that date will no longer be relevant. The judge also points out the great uncertainty that exists for third-country nationals.