Legal status of the Ukrainian temporary protection permit
Introduction
In order to successfully apply for a permanent residence permit in the Netherlands, you must meet a number of conditions. One of these conditions is that you must have lived in the Netherlands for at least five consecutive years on the basis of a valid Dutch residence permit. However, displaced persons from Ukraine who reside in the Netherlands on the basis of a temporary protection permit do not build up this 5-year minimum period of residence.
This article will explain this situation and provide you with durable answers for your long-term stay in the Netherlands.
Issue
On 29 October 2023, the former Dutch State Secretary for Justice and Security, C.A. van der Maat, stated that there were 108,090 displaced persons from Ukraine registered in the Dutch National Register of Persons.[1]
Many of these people have been granted a temporary protection permit, which gives them a right of residence. However, this right of residence is not the same as the right of residence based on other residence permits as it does not give the holder of the temporary protection permit any claim to the right of residence under the Dutch legislation regulating the legal stay of foreigners: the Foreign Nationals Act 2000.[2]
The Dutch authorities decided to view the temporary protection regime for Ukrainians, created on the basis of the EU Council Directive 2001/55/EC on temporary protection (i.e., the Temporary Protection Directive)[3] and the EU Council Implementing Decision 2022/382 (i.e., the EU Decision introducing temporary protection for Ukrainians)[4], as sui generis, meaning to be a class of its own, given that the drafters of the Dutch Foreign Nationals Act intended to exclude the groups enjoying temporary protection from the scope of application of the Foreign Nationals Act.[5] Furthermore, when amending the Dutch Foreign Nationals Act after the EU adopted the above-mentioned Temporary Protection Directive, the Dutch authorities explained that the temporary protection regime is intended to provide instant protection to an imminent, mass, group of displaced people, and that access to submitting an asylum application is sufficient to fulfil their human rights.[6]
However, for those displaced persons from Ukraine with a temporary protection permit who do not wish to apply for asylum, a durable solution is needed as the Russian aggression against Ukraine is not likely to end any time soon, especially in view of the fact that the EU Decision introducing temporary protection to Ukrainians grants the right of stay until 4 March 2025.[7]
Solution
The State Secretary of Justice and Security, E. van der Burg, argued that, although the addressees of the Temporary Protection Directive have the right to apply for a refugee status, the Directive does not grant the addressees the right to apply for a permanent residence permit.[8] He further explained that it is theoretically possible for the Dutch legislator to amend the Dutch Foreign Nationals Act and develop a special, separate, permit regime that would allow those with a temporary residence permit to obtain a permanent residence permit. However, given the current political climate in the Netherlands, such a change seems unlikely.[9]
This means that if those holding a temporary residence permit want to obtain a long-term residence permit in the Netherlands, they would have to apply for a residency permit that falls under the Dutch Foreign Nationals Act.
Mynta Law gladly helps you find a suitable residence permit that falls within the scope of the Dutch Foreign Nationals Act, making you eligible for a long-term residency permit after 5 consecutive years. For instance, Mynta Law has successfully helped people obtain a residence permit for residence as a family or household member, highly skilled migrant, EU Blue Card, self-employed/paid employment, start-up permit, and more. Furthermore, Mynta Law successfully objected and appealed against decisions to deny and/or revoke residence permits.
Do you want assistance with a residence application, or would you like advice on your own situation? Please don't hesitate to contact Justin Antonides LL.M. by email or phone today.
[1] Letter from the State Secretary of Justice and Security C.A. van der Maat, ‘Collection letter reception Ukraine’ (3 November 2023) <open.overheid.nl/documenten/dpc-e650518180092edcc3061ba12e31bcb1e0b5bd80/pdf> accessed 21 December 2023
[2] The Foreign Nationals Act 2000 (entered into force 29 November 2023) (Vreemdelingenwet 2000)
[3] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2002] OJ L212/12 (Temporary Protection Directive)
[4] Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] OJ L71/1 (Temporary Protection Decision Ukraine)
[5] 26 732 Comprehensive review of the Foreign Nationals Act 2000, No. 3 Explanatory Memorandum (22 September 1999), Article 106. <zoek.officielebekendmakingen.nl/kst-26732-3.html> (accessed 21 November 2023)
[6] 29 031 Amendment to the Foreign Nationals Act 2000 to implement Council Directive No 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ L 212), No. 3 Explanatory Memorandum (11 September 2003), Article 2. <zoek.officielebekendmakingen.nl/kst-29031-3.html> (accessed 21 November 2023)
[7] Dutch Immigration and Naturalisation Service (IND), ‘Temporary Protection Directive Ukraine’ (IND, 5 December 2022) <ind.nl/en/ukraine/temporary-protection-directive-ukraine#applying-for-residency-under-the-directive> accessed 21 December 2023
[8] Letter from the State Secretary of Justice and Security Eric van der Burg on the Foreign Nationals Act and the situation in Ukraine (30 March 2022) <zoek.officielebekendmakingen.nl/kst-19637-2839.html> accessed 21 December 2023
[9] Ibid.