1 Classification: Regulatory purpose of § 2 UkraineAufenthÜV
The Bavarian Administrative Court (VGH) clarifies that Section 2 of the Ukraine Transitional Residence Regulation (UkraineAufenthÜV) does not establish an independent entitlement to a residence permit in accordance with Section 24 AufenthG. Rather, the provision exclusively regulates a temporary exemption from the requirement of a residence title (for 90 days from first entry) in order to be able to apply for a longer-term residence title in Germany during this period. This does not involve an extension of the group of persons entitled to a residence permit in accordance with Implementing Decision (EU) 2022/382.
2. facts of the case: Nigerian national with temporary residence in Ukraine
The proceedings were based on the complaint of a Nigerian national who had stayed in Ukraine before the start of the war with a temporary Ukrainian residence permit (according to his submission: as a student, among other things) and travelled to Germany. He applied for a residence permit in accordance with Section 24 of the Residence Act as a displaced person from Ukraine and claimed, among other things, that he had already been integrated in Ukraine and could not return to Nigeria „safely and permanently“.
3rd stage of proceedings: VG Augsburg and authorisation to appeal
The Augsburg Administrative Court dismissed the action to compel by judgement dated 16 November 2022 (Au 6 K 22.1372). The plaintiff then applied for leave to appeal. The VGH Munich rejected this application in its ruling dated 30 January 2023 (10 ZB 23.19); the judgement of the court of first instance thus became final.
4 Central considerations of the VGH Munich
The VGH initially denied that the applicant belonged to the group of eligible persons under Art. 2 para. 2 Implementing Decision (EU) 2022/382 because he did not hold a valid permanent residence permit issued under Ukrainian law. The reference to Section 2 UkraineAufenthÜV does not change this: the regulation merely facilitates (short-term) legal residence for the purpose of submitting an application, but does not extend the group of persons entitled to residence in accordance with the EU decision.
A claim as an „other“ third-country national pursuant to Art. 2 para. 3 Implementing Decision (EU) 2022/382 was also ruled out. According to the sui generis examination used by the court (with reference to Section 60 (5) and (7) Residence Act, among others), it was possible for the claimant to return to Nigeria safely and permanently; in the court's view, his submission on individual risks remained too vague and unsubstantiated.
5. practical advice for legal counselling
In particular, the following can be derived from the decision in practice:
-
§ Section 2 UkraineAufenthÜV is not a „door opener“ to Section 24 AufenthG, but a purely transitional regulation for legal residence and application.
-
In the case of third-country nationals without a permanent Ukrainian residence permit, a Section 24 perspective must generally be critically examined from the outset.
-
Insofar as Art. 2 para. 3 can be relevant, the substantiated impossibility of a safe and permanent return is decisive - general references to a lack of ties or incipient integration in Ukraine are not sufficient according to the line of argumentation of the VGH.
Source: Bavarian Administrative Court, decision of 30.01.2023 - 10 ZB 23.19; lower court: VG Augsburg, judgement of. 16 November 2022 - Au 6 K 22.1372.
