Case C-731/26, Landkreis Fulda – two years in Georgia, and then temporary protection?
Temporary protection was designed for people arriving from Ukraine. The question in this case is whether it still covers Ukrainians who reached the Union by way of somewhere else.
Facts
H. and O., Ukrainian nationals who resided in Ukraine before 24 February 2022, are in proceedings with the Landkreis Fulda before the Hessischer Verwaltungsgerichtshof. According to reports of the referral decision (3 A 2624/25, June 2026), the couple left for Georgia when the war began and lived there legally for more than two years, from 9 April 2022 to 21 April 2024 according to the question, without a residence permit. They supported themselves through self-employed and employed work and with help from a church congregation. In 2024 they came to Germany and applied for residence permits for temporary protection. The district refused and threatened deportation; the Verwaltungsgericht Kassel ordered it to grant the permits. On the district’s appeal, the Verwaltungsgerichtshof asks the Court of Justice whether the couple fall within Implementing Decision (EU) 2022/382 at all and whether EU law allows a return decision to Ukraine.
Questions Referred
1. Must Article 2(1)(a) and Article 2(2) of Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection (‘Implementing Decision (EU) 2022/382’), read in conjunction with Article 2(c) and (d) of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (‘Directive 2001/55/EC’) be interpreted as meaning that Ukrainian nationals who resided in Ukraine before 24 February 2022 no longer fall within the personal scope of Implementing Decision 2022/382, if:
— before entering the territory of the European Union, they resided legally, but without a residence permit, in a third country (in the present case, Georgia) for a period of more than two years (in the present case, 9 April 2022 to 21 April 2024); and
— they were able to cover their means of subsistence during that period out of income generated by engaging in an employed or self-employed activity as well as from donations made by a church congregation?
Does the restriction on the personal scope apply only in circumstances where the Ukrainian national who resided in a third country before applying for international protection in the European Union has the possibility of returning to that third country, and does that require an assessment to be made as to the likelihood of re-entry, residence status and secured means of subsistence in that third country?
2. Do Directive 2001/55/EC and Implementing Decision (EU) 2022/382, which was issued to give specific expression to that directive, preclude a return decision to Ukraine pursuant to Article 6(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (‘Directive 2008/115/EC’) from being issued?
Sources
OJ notice C/2026/5611 (EUR‑Lex) · Case file on CURIA · Implementing Decision (EU) 2022/382 · Directive 2001/55/EC · Directive 2008/115/EC
Comment
The text of the Implementing Decision does not mention a stay in a third country. Article 2(1)(a) covers “Ukrainian nationals residing in Ukraine before 24 February 2022”, provided that they are among the “persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion”. The couple meet the first condition. The question is whether they still meet the second after two years elsewhere. The Directive defines displaced persons as those “who have had to leave their country or region of origin … and are unable to return in safe and durable conditions”. It links protection to flight, not to the route taken. The argument for excluding them is that displacement ends where a person has found a durable stay elsewhere, so that arriving from Georgia in 2024 is moving on, not fleeing.
That is why the second half of the first question matters. If a stay in a third country can take a Ukrainian outside the Decision, the Verwaltungsgerichtshof asks whether that is so only where the person can actually go back there, which would require an assessment of re-entry, residence status and livelihood. On the facts, the couple had no residence permit in Georgia. Without the possibility of return, the logic of excluding them is hard to see. The alternative is not to send them back to Georgia but, as the district attempted, to Ukraine.
The second question has the most immediate consequences. Directive 2001/55 exists because people cannot return “in safe and durable conditions”. If the couple fall outside temporary protection, a return decision to Ukraine under Article 6(1) of the Return Directive would still have to respect the principle of non-refoulement, which Article 5 of that Directive requires Member States to respect. The Court will have to say whether the temporary protection regime itself stands in the way of such a decision while the Council’s decision to activate it remains in force.