On 26 October 2022, the Administrative Court of Baden-Wurttemberg gave its decision in a case regarding a third-country national who fled from Ukraine to Germany. The applicant was a Nigerian citizen who was studying in Ukraine until the war broke out and arrived in Germany on 27 March 2022. In Germany, he was issued a temporary residence permit without “gainful employment permitted” under Section 81 of the Residence Act. The applicant subsequently appealed against this decision.
The German Administrative Court noted that although permission to engage in gainful employment is often included in the temporary residence permit, the residence permit that the applicant applied for fell under reasons of international law, humanitarian or political reasons which could not be directly applied to this requirement.
The Court subsequently addressed the applicant’s claim that a right to employment could be obtained from Article 12 of the Temporary Protection Directive (2001/55/EC) which provides that persons enjoying temporary protection can engage in employment or self-employment. It noted that Germany has extended this protection and rights to non-Ukrainian third-country nationals who were lawfully present in Ukraine on 24 February 2022 not only for a temporary short stay and cannot return safely and permanently to their country of origin. The Court then analysed if the applicant belonged to this group of persons, if he enjoyed temporary protection within the meaning of the aforementioned Directive and if he therefore could be permitted to work in direct application of Article 12. It reasoned that by presenting his Nigerian passport and valid Ukrainian residence permit, the applicant had sufficiently shown that he was a third-country national residing lawfully in Ukraine; however, there was no evidence that he could not return safely and permanently to Nigeria. The Court furthermore submitted that the fact that the applicant did not see any possibility of completing his studies or enjoying a comparable education in Nigeria was not sufficient to assume that he could not return there. The Court therefore dismissed the appeal brought by the applicant and considered it unfounded.
Based on an official translation from within the EWLU team.