Bavarian Administrative Court, decision of 30 January 2023, Ref. No.: 10 ZB 23.19
Foreign nationals who have resided in Ukraine with a temporary residence permit cannot obtain a humanitarian residence permit as displaced persons from Ukraine under Section 2 of the Ukraine Residence Regulations. This regulation merely serves to exempt certain foreign nationals from the requirement to hold a residence permit for the Federal Republic of Germany for the first 90 days in order to apply for a longer-term residence permit during this period. The group of persons defined in Implementing Decision EU 2022/382, namely foreign nationals who hold a permanent residence permit in Ukraine, is not intended to be expanded by this regulation.
Case study: Application of a Nigerian national
In the present case, a Nigerian national holding a temporary residence permit in Ukraine applied to the Augsburg Administrative Court for an order requiring the competent authority to grant him a humanitarian residence permit as a displaced person from Ukraine.
Plaintiff’s argument
In support of his claim, he argued that, unlike Article 2(2) of Implementing Decision EU 2022/382, Section 2 of the Ukraine Residence Act does not distinguish between foreign nationals with permanent or temporary residence permits and is therefore also applicable to temporary residence permits. Therefore, he is entitled to a humanitarian residence permit as a displaced person from Ukraine on the basis of Section 24 of the Residence Act in conjunction with Implementing Decision EU 2022/382.
He also belongs to the group of persons eligible for benefits under Article 2(3) of Implementing Decision EU 2022/382. A safe return to Nigeria is impossible for him due to his lack of ties there. His father was murdered, and other family members emigrated. Furthermore, at the time of his escape to Germany, he had already been living and studying in Ukraine for eight months, so he was well integrated.
Court decision
The court rejected this application by judgment of November 16, 2022, case number 6 K 22.1372. The plaintiff then filed an application for leave to appeal with the Bavarian Administrative Court. This application was rejected by order of January 30, 2022, case number 10 ZB 23.19.
Reasons for rejection
The court rejected the application for leave to appeal, stating that there were no serious doubts about the correctness of the contested judgment, nor were there any factual or legal difficulties in the case.
The court based its decision on the following considerations:
The plaintiff is initially not entitled to a residence permit for humanitarian reasons as a displaced person from Ukraine, since, as the holder of a temporary residence permit, he does not fall within the group of persons defined in Article 2(2) of Implementing Decision EU 2022/382. The implementing decision conclusively regulates which persons are to be temporarily protected. Therefore, Section 2 of the Ukraine Residence Regulation should not be seen as an expansion of this group of persons. Rather, the provision is intended to enable foreign nationals who left Ukraine between February 24, 2022, and May 31, 2022, and entered Germany without a residence permit to legally reside in the Federal Republic for the first 90 days in order to apply for a residence permit during this period. However, whether the requirements for the granting of a residence permit, for example on the basis of Section 24 of the Residence Act, are met is no longer determined by Section 2 of the Ukraine Residence Regulations.
Furthermore, the plaintiff does not belong to the group of persons entitled to benefits under Article 2(3) of Implementing Decision EU 2022/382. As a young, employable person, he is able to return safely and permanently to his country of origin. The plaintiff’s personal circumstances were taken into account in this assessment, but he did not substantiate why a safe return should not be possible. The lack of ties in Nigeria and the beginning of integration in Ukraine are not sufficient for this purpose.
Source: VGH Munich
