THE BOTTOM LINE
- End of Temporary Protection: The special temporary protection for non-Ukrainian nationals who fled the war in Ukraine is definitively ending. Dutch authorities are now obligated to issue return orders to their countries of origin.
- Burden of Proof on the Individual: If an individual claims they have a right to stay in another EU country, the burden of proof is on them. The Dutch government has no duty to proactively investigate such claims.
- Schengen-Wide Consequences: A return order triggers a mandatory registration in the Schengen Information System (SIS), effectively barring entry and residence across the EU. Businesses with employees in this category face imminent workforce disruption.
THE DETAILS
A recent ruling from the District Court of The Hague has provided critical clarity on the legal status of third-country nationals who fled Ukraine and received temporary protection in the Netherlands. The case involved an Algerian national whose temporary status was terminated. The court confirmed that once this protection ends, the Dutch government is not only permitted but legally required to issue a return decision. The court was unsympathetic to arguments that administrative confusion or delays by the government excused the individual’s own failure to meet legal deadlines for appeal, setting a strict tone for future cases. Crucially, however, the court affirmed its duty under EU law to review the substance of the return decision, even if an appeal is filed late.
The judgment establishes a clear and significant legal standard regarding the responsibility of individuals to manage their own immigration status. The applicant argued that the Dutch authorities should have first investigated whether he had a right to reside in another EU Member State before ordering his return to Algeria. The court firmly rejected this, placing the onus squarely on the individual. A mere assertion that a residence application is pending elsewhere is not enough to compel the Dutch government to investigate. For businesses and legal advisors, this means that employees in this situation must provide concrete, substantiated proof of their legal status in another EU country to have any chance of challenging a return order from the Netherlands.
Finally, the ruling addressed the severe, practical consequences of a return order: registration in the Schengen Information System (SIS), which flags the individual across the EU. The court confirmed this registration is a mandatory consequence of a return decision. However, it also introduced a vital safeguard. The judgment implies that if the government registers an individual in the SIS before their return order is legally final, and a court later overturns that order, the government has a duty to proactively remove the SIS entry. This provides an important, albeit small, check on executive power and offers a potential remedy for individuals who successfully appeal their cases after a SIS registration has already been made.
SOURCE
Source: Rechtbank Den Haag
