THE BOTTOM LINE
- Workforce Impact: Companies employing non-Ukrainian nationals (third-country nationals) who fled the war in Ukraine on temporary permits must recognize their legal right to work and reside in the Netherlands has definitively ended.
- Legal Certainty: A recent court ruling confirms that a government “grace period” did not extend legal residency status, meaning return decisions issued during this time are valid.
- Action Required: With the government’s grace period ending on September 4, 2024, businesses must review the immigration status of affected employees and prepare for their departure to ensure compliance.
THE DETAILS
The legal status of third-country nationals who fled to the Netherlands from the conflict has been a source of significant uncertainty for employers. Initially, the Netherlands granted optional temporary protection to this group, who held temporary residence permits in Ukraine (such as students or workers). However, the government later decided to terminate this protection, a move that was challenged in the courts. While awaiting final clarification from the EU’s top court, the Dutch government implemented a “freeze measure,” allowing this group to de facto continue using their rights, including the right to work, which created confusion about their actual legal standing.
In a recent key decision, the District Court of The Hague provided crucial clarity. The case involved an Indian national who challenged a return decision issued on July 21, 2024. He argued that since the government’s freeze measure allowed him to retain his rights until September 4, 2024, he was legally resident when the decision was made, rendering it unlawful. The court firmly rejected this argument, ruling that his legal right to temporary protection had already expired by operation of law on March 4, 2024, as previously confirmed by the Netherlands’ highest administrative court.
The court’s reasoning draws a critical line between a legal right to stay and a temporary, practical permission to remain. It found that the government’s “freeze measure” was not an extension of legal residency but merely a temporary suspension of the consequences of being undocumented. The court referenced established European case law (such as the Gnandi case), which clarifies that allowing an individual to remain in a country pending a legal procedure does not make their stay “legal” under the EU Return Directive. Consequently, the individual was considered to be staying illegally when the return decision was issued, making the order to leave the country entirely valid. This ruling solidifies the legal landscape for employers and affected individuals, confirming that the end of the grace period marks a hard deadline.
SOURCE
Source: Rechtbank Den Haag (District Court of The Hague)
