Bavarian Administrative Court, decision of 30.01.2023, ref.: 10 ZB 23.19
Foreigners who have resided in Ukraine with a temporary residence permit cannot obtain a humanitarian residence permit as displaced persons from Ukraine under Section 2 Ukraine Residence Regulation. The provision merely serves to exempt certain foreigners from the obligation to have 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 foreigners who have a permanent residence permit in Ukraine, is not to be extended by this provision.
Case study: Application by a Nigerian national
In this case, a Nigerian national who has a temporary residence permit in Ukraine applied to the Augsburg Administrative Court to oblige the competent authority to grant him a humanitarian residence permit as a displaced person from Ukraine.
Plaintiff’s Argument
He argued that, unlike Article 2 (2) of Implementing Decision EU 2022/382, the wording of Section 2 UkraineAufenthÜV does not differentiate between foreigners with permanent or temporary residence permits and is therefore also applicable to temporary residence permits. He is therefore entitled to be granted 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 entitled to claim under Art. 2 para. 3 of Implementing Decision EU 2022/382 and it is not possible for him to return safely to Nigeria due to his lack of ties there. His father had been murdered and other family members had emigrated. He had also been living and studying in Ukraine for eight months at the time of his flight to Germany and was therefore well integrated.
Court Decision
The court rejected this application in its judgement of 16 November 2022, case no. 6 K 22.1372. The plaintiff then applied to the Bavarian Administrative Court for leave to appeal. This was rejected in a ruling dated 30 January 2022, case no. 10 ZB 23.19.
Reasons for rejection
The court rejected the application for leave to appeal. It found that there were neither serious doubts about the correctness of the contested judgment nor factual or legal difficulties in the case.
The court based its decision on the following considerations:
The applicant is not initially entitled to the issue of a residence permit on humanitarian grounds as a displaced person from Ukraine, as the applicant, as the holder of a temporary residence permit, does not fall within the scope of Art. 2 para. 2 of Implementing Decision EU 2022/382. The implementing decision conclusively regulates which persons are to be temporarily protected. Therefore, Section 2 UkraineAufenthÜV is not an extension of this group of persons. Rather, the provision is intended to enable foreign nationals who left Ukraine between 24 February 2022 and 31 May 2022 and entered Germany without a residence permit to stay legally in Germany within the first 90 days in order to apply for a residence permit during this time. Whether the requirements for the issue of a residence title, for example on the basis of Section 24 AufenthG, are met is then no longer determined by Section 2 UkraineAufenthÜV.
Furthermore, the applicant does not belong to the group of persons entitled to claim under Art. 2 para. 3 of Implementing Decision EU 2022/382 and, as a young person capable of gainful employment, it is possible for him to return safely and permanently to his country of origin. The applicant's personal circumstances had been taken into account in this assessment, but he had not substantiated why safe return should not be possible. The lack of ties in Nigeria and the incipient integration in Ukraine are not sufficient.
Source: VGH München