On the 27th of December 2022, the Council of State gave its judgment, N°465365. The case concerned an Armenian national who left Ukraine where she was residing on a temporary residence permit. Following the full-scale Russian invasion, she entered France where she applied for a temporary protection. Her application was rejected by the government, but she received a temporary residence permit for one month to re-examine her situation and possibly admit her on another basis. The Administrative Court ordered a re-examination and issuance of a temporary residence permit for the whole duration of the re-examination. The Minister of Interior Affairs appealed against this decision, and the Council of State ruled in favour of the Minister.
The Council noted that Article 2(2) Council Decision 2022/382 based on Article 5 Directive 2001/55/EC, and transposed by the French Law, provides that in order to be eligible for temporary protection nationals of third-countries fleeing Ukraine (TCN) must have a permanent residence permit issued in accordance with Ukrainian Law. Member states may choose to extend the scope of protection to other categories of people.
The Council of State first declared that the Minister of Interior Affairs is entitled to request the annulment of the order of the Administrative Court because no inter-ministerial decree designating other categories was issued hence the Administrative Court made an error in law. The Council then examined the alleged violation of the principles of equal treatment and non-discrimination by the aforementioned EU Council Decision 2022/382 and the inter-ministerial decree. The Decision and Decree might violate these principles because they do not provide protection to TCNs who did not enjoy permanent residence in Ukraine, such as in the present case. However, the Council ruled that the difference in treatment between TCN depending on whether they have a permanent residence permit does not as such breach the aforementioned principles and so does not cause serious doubt as to the legality of the government decision to refuse temporary protection.
Based on an unofficial translation by the ELENA Weekly Legal Update.