What was the case about?
The case involved a Ukrainian national who had initially fled to Poland after the war began. From there, he returned to Ukraine on several occasions to carry out volunteer work.
In Poland, the man was issued a national visa (D visa) valid until the end of November 2023. In October 2023, he traveled on to Germany and applied to the Foreigners' office for Foreigners' office residence permit under Section 24 of the Residence Act —that is, temporary protection for refugees from Ukraine.
The Foreigners' office the application. The reason given was that the man had already been safe in Poland for some time. According to the authorities, his onward journey to Germany is therefore no longer directly related to the war. As a result, he is no longer eligible for temporary protection in Germany.
The man filed a lawsuit challenging the decision. The Darmstadt Administrative Court initially ruled in his favor. The agency then filed an appeal. The Hessian Administrative Court has now ruled on that appeal.
Background: What is the rationale behind Section 24 of the Residence Act?
Shortly after the start of Russia’s war of aggression in February 2022, the European Union activated a special emergency measure: temporary protection for refugees from Ukraine under the so-called Mass Influx Directive. In Germany, this provision is implemented by Section 24 of the Residence Act.
In essence, this means that individuals covered by the Mass Influx Directive can receive temporary protection in any EU member state. This protection is currently valid until March 4, 2027.
Temporary protection comes with important rights. These include, for example, a residence permit, access to the labor market, education, and social benefits, as well as medical care. Family reunification is also possible under certain conditions.
In practice, however, the question often arises: What happens if refugees from Ukraine do not come directly to Germany but have first stayed in another EU country? This very question was at the heart of the hearing.
What was the court's decision?
The Hessian Administrative Court dismissed the agency’s appeal. The ruling makes it clear that simply because someone has stayed in another EU country for an extended period does not automatically mean they lose their entitlement to temporary protection in Germany. Rather, the decisive factor is whether the person in question has been granted a Residence permit in the other EU country that is comparable to the temporary protection provided under the Mass Influx Directive.
The court explains this as follows: Protected status comes with certain rights, such as access to employment, social benefits, and medical care. If a person already holds this status in another EU country, these rights should, in principle, be exercised only there.
Conversely, if such protected status has not been granted in another EU country, the entitlement may still apply in Germany.
In this specific case, the man did indeed hold a D visa in Poland. However, the court found that this visa was not comparable to the protection status under Section 24 of the Residence Act. Therefore, his entitlement to temporary protection in Germany remained intact.
Temporary protection cannot be granted in multiple countries
The Foreigners' office that the man had not come to Germany because of the war. His extended stay in Poland had severed the connection to the war. Therefore, he was not entitled to temporary protection.
The court saw it differently. It made it clear that the war was the reason the man left Ukraine. In principle, that is sufficient to qualify for temporary protection under the Mass Influx Directive.
However, it is important to note that the court does not state that Ukrainian refugees can receive the same protection in multiple EU countries at the same time. If a person has already Residence permit a Residence permit in another EU country that is comparable to the protection provided under Section 24 of the Residence Act, they may lose their entitlement to such protection in Germany.
Conclusion: What does this mean for refugees from Ukraine?
This decision is particularly important for Ukrainian refugees who, after the war began, were initially in another EU country and later traveled on to Germany.
The decision makes it clear that a previous stay in another EU country does not automatically result in the loss of the right to temporary protection in Germany.
What matters most is the residence status the person in question had in the first EU country.
The court clarifies:
- The right to protection in Germany remains in effect if protection status under the Mass Influx Directive was not granted in the first EU country.
- The right to protection in Germany may lapse if a Residence permit comparable rights (as provided for in the Mass Influx Directive/Section 24 of the Residence Act) has been issued in the first EU country.
For Ukrainian refugees, this means that anyone coming to Germany after a prolonged stay in another EU country should carefully check what status they had there.
The ruling also makes clear that authorities may not automatically reject applications simply because someone has previously spent a long period of time in another EU country. What matters is always the specific residence status in the first EU country.
