The decision affects many people who have more than one nationality and have fled Ukraine. This is because it is not yet clear whether they are entitled to temporary protection.
What is temporary protection according to § 24 AufenthG?
After the start of the Russian war of aggression against Ukraine in February 2022, the European Union activated a special emergency regulation for the first time: temporary protection for displaced persons from Ukraine under the Mass Influx Directive.
In Germany, this decision is implemented by Section 24 of the Residence Act. The regulation stipulates that persons covered by the EU decision receive a residence permit for the duration of the protection. EU protection is currently valid until March 4, 2027.
The residence permit according to § 24 AufenthG is not an asylum status, but a humanitarian Residence permit. It grants legally secure residence in Germany as well as extensive rights:
- Work & training: unrestricted access to the labor market
- Social benefits: Entitlement to citizens' income and basic income support
- Health: Access to statutory health insurance
- Family reunification: spouses and children are allowed to join in many cases
- Education: Compulsory schooling and school attendance for children, language and integration courses for adults
- Freedom of movement: the ability to move and live freely in Germany
Man with dual citizenship applies for Residence permit according to § 24 AufenthG
The case in question concerns a man who holds a Ukrainian passport but is also a Syrian citizen. According to the court, he had lived in Ukraine for many years, where he had been registered in the Odessa region since October 2016.
At the same time, he has family ties to Syria and Turkey. He is married to a Syrian woman who lives in the city of Mersin (Turkey). Their son was born there in December 2021. A daughter was later born in Germany.
In 2022, the man initially traveled from Ukraine to Ireland, where he applied for and was granted temporary protection. He later moved to Germany to live with relatives and apply for a residence permit under Section 24 AufenthG.
Foreigners' office refused temporary protection
However, the responsible Foreigners' office rejected the application - for two main reasons:
- Unclear place of residence:
The man was unable to provide sufficient proof that he actually lived in Ukraine before February 24, 2022. A mere notification was not sufficient. He may have been living with his wife in Turkey. - Second nationality:
As the man is also a Syrian citizen, he can claim state protection in Syria. In the opinion of the authorities, he is not in need of protection within the meaning of Section 24 AufenthG, as Syrians - unlike Ukrainians - are not entitled to temporary protection.
The authorities refused the residence permit, threatened to deport him and imposed a temporary entry and residence ban.
Action and decision of the court
The man appealed against the decision together with his family. He argued that he had lived in Ukraine for years, had a household, bank account and social contacts there and was therefore covered by the EU regulations - i.e. entitled to § 24 AufenthG.
His Syrian citizenship was only of a formal nature - he no longer had any connection to Syria and could not claim protection there.
The Stuttgart Administrative Court initially dismissed the man's complaint. He then lodged an appeal with the Mannheim Higher Administrative Court (OVG). This time with success.
The OVG Mannheim partially overturned the decision of the lower court and ruled that the man and his daughter may remain in Germany until the end of the main proceedings.
Court: Legal situation currently unclear
The judges saw several key legal issues that need to be examined in the main proceedings:
- Center of life: Did the man actually have his habitual residence in Ukraine - or in Turkey?
- Dual nationality: Is someone with dual nationality covered by the EU decision?
- Previous Protection in Ireland: Does Germany have to grant protection even though the man was previously registered in another EU country?
As all of these questions remain unanswered, the man's interest in not being deported prevails, according to the court. Deportation to Syria or Ukraine is not legally justifiable as long as the legal situation remains unclear.
Dual nationality: Entitlement to protection?
The central question remains: Are Ukrainians with more than one passport entitled to temporary protection under § 24 AufenthG?
So far, there is no clear legal regulation on this - neither in European nor in German law. The EU decision that introduced temporary protection for people from Ukraine does not mention any restrictions for people with dual or multiple nationality.
In practice, however, the EU member states interpret the regulation differently:
- Some countries, such as Sweden, reject temporary protection for dual nationals if it is safe and reasonable to return to the other country of origin.
- As a rule, Germany grants protection under Section 24 of the Residence Act even in the case of multiple nationality, provided that the persons concerned have demonstrably lived in Ukraine and cannot safely return to their second country of origin.
This is how the court justifies the decision
The OVG Mannheim points out that both views are legally justifiable.
Argument against protection:
Section 24 AufenthG protects people who cannot safely return to Ukraine. However, anyone who has other nationalities in addition to Ukrainian nationality and can live safely in another country of origin is not considered to be in need of protection.
This argument is based on the Geneva Refugee Convention, which also requires that a person must be at risk in all countries of origin in order to receive international protection.
Argument in favor of protection:
The EU decision on temporary protection makes no exception for dual nationals. Accordingly, the only decisive factor is whether someone lived in Ukraine and was displaced by the war.
It would not be compatible with the humanitarian purpose of the regulation to exclude those affected from protection solely because of a second citizenship if they are actually affected by war.
This means that the question of whether a claim to Section 24 AufenthG also exists in the case of dual citizenship remains open for the time being and must be clarified in the main proceedings or by a future ruling of the European Court of Justice (ECJ).
Significance of the decision for those affected
For refugees with dual nationality, the decision means:
- Each case must be examined individually. The decisive factor is whether they have actually lived in Ukraine and whether a return to the other country of origin would be realistic or safe.
- Anyone who can prove that the center of their life was in Ukraine still has a good chance of obtaining protection in Germany under § 24 AufenthG - even with a second passport.
- The authorities may not refuse protection across the board simply because a second nationality exists. It must always be checked whether the second country can actually offer protection.
Important: Those affected should document their situation as well as possible - for example with registration certificates, rental agreements, bank statements or proof of employment - and present all documents translated to avoid misunderstandings.
What does the decision mean for the family?
For the man and his daughter, this means that they are allowed to stay in Germany until the main proceedings have been decided. The deportation and entry ban have been suspended for the time being.
The daughter, who was born in Germany, is also eligible for a residence permit in accordance with § 33 AufenthG (birth of a child in Germany).
The decision does not apply to the wife and son. Their complaints were rejected as they have never been in Ukraine and are therefore not covered by the EU decision.
Conclusion: Decision with a signal effect
The main proceedings will now have to clarify the plaintiff's case,
- where the man actually lived before the war,
- whether his Syrian citizenship is a safe alternative,
- and whether people with two passports should be excluded from protection.
As the EU decision is interpreted differently in the member states, the case could even be referred to the European Court of Justice (ECJ) in the long term. A ruling by the ECJ would be binding for all member states.
Until then, the legal situation remains open and German courts must decide on a case-by-case basis. It is therefore important for those affected to provide as much evidence as possible of their personal situation - in particular their stay in Ukraine and lack of opportunities to return to their second country of origin - in order to substantiate their claim to protection.
