The Higher Administrative Court of Kassel asks the European Court of Justice: Protection for Ukrainians even after years of prior residence in a third country?

The dynamics of the international labor market and global refugee movements repeatedly lead to highly complex overlaps in German migration law. A recent ruling by the Higher Administrative Court of Hesse (VGH Kassel) on June 24, 2026 (Case No. 3 A 2624/25) is currently causing considerable concern among affected asylum seekers, highly qualified professionals , and the HR departments of German companies. The VGH has referred fundamental questions to the European Court of Justice (ECJ) for a preliminary ruling regarding the scope of temporary protection under the EU Mass Influx Directive. In our legal practice, we see daily how crucial timely decisions are for the residency and legal security of international talent in Germany.

What facts underlie the referral to the ECJ?

The referral decision is based on a case that is representative of numerous well-educated Ukrainians who initially sought refuge in third countries after the outbreak of the war. The couple in question lived in Ukraine before February 24, 2022 , and fled to Georgia in April 2022. There, they resided legally for over two years. They supported themselves through the husband's self- employment as a graphic designer, the wife's employment in a call center, and by supporting a church community. In 2024, they finally entered Germany and applied to the relevant district for a residence permit. Residence permit pursuant to Section 24 of the Residence Act for temporary protection.

The immigration office rejected the application and issued a deportation order to Ukraine . The Kassel Administrative Court, the court of first instance, ordered the district to grant the residence permit and overturned the deportation order. The authority appealed this ruling, whereupon the Higher Administrative Court of Kassel suspended the proceedings to allow the European Court of Justice to clarify fundamental questions of interpretation under European law.

What legal questions must the ECJ now decide?

The Third Senate of the Higher Administrative Court of Kassel (VGH Kassel) has asked the European Court of Justice (ECJ) whether Ukrainian nationals fall outside the personal scope of Implementing Decision ( EU ) 2022/382 due to several years of legal residence in a third country. The core issue is whether temporary protection can be denied if displaced persons have already established themselves and secured their livelihood in a third country such as Georgia.

Furthermore, the ECJ is to clarify whether a restriction of protection depends on the legal and factual possibility for the person concerned to return to the third country, and whether this requires an official prognosis regarding re-entry and securing one's livelihood in the third country. Finally, the highly sensitive question remains whether EU law fundamentally precludes the issuance of a deportation order to Ukraine during an ongoing war.

What consequences will this have for the practices of immigration authorities and those affected?

The referral to the European Court of Justice clearly demonstrates the existing uncertainty in administrative decision-making practice. Many immigration authorities tend to categorically question the need for protection in cases of prior stays in third countries. In our practical experience, this often leads to lengthy administrative procedures and legal uncertainties, which are particularly untenable for skilled workers and employers.

Until the European Court of Justice (ECJ) has ruled, proceedings with comparable facts remain in legal limbo. It can be assumed that official applications in similar situations will increasingly be suspended or initially rejected. However, from a legal perspective, we consider a deportation order directly to Ukraine extremely problematic, especially given the current situation, as EU law must prioritize protection against refoulement.

Why skilled workers and employers should now focus on regular residence permits

For academic professionals , young professionals, highly qualified specialists, and companies, waiting for a ruling from the European Court of Justice (ECJ) poses a significant risk. Since preliminary ruling proceedings can take many months or even years, we strongly advise in our legal practice not to rely solely on temporary protection under Section 24 of the German Residence Act (AufenthG). If the legal requirements are met—such as a recognized university degree or qualified vocational training, as well as a concrete job offer—a standard residence permit should be pursued as a priority. These include, in particular, the following: EU Blue Card pursuant to Section 18g of the Residence Act or a Residence permits for skilled workers with academic qualifications according to Section 18b of the German Residence Act (AufenthG) . Opportunities for self-employment under Section 21 of the German Residence Act or job searches also offer reliable alternatives. Switching to such a residence permit creates immediate legal and planning certainty for both employees and employers and makes the residence status independent of developments in asylum and protection law.

Conclusion

The preliminary ruling procedure before the Higher Administrative Court of Kassel (case no. 3 A 2624/25) addresses a key weakness in the application of temporary protection for Ukrainian nationals with a third-country background. Those who initially established a life in countries like Georgia or Turkey after fleeing their home countries currently face legal uncertainty regarding the granting of a residence permit under Section 24 of the German Residence Act. As a specialized law firm, we recommend that highly qualified professionals and employers utilize existing options early on and strategically convert their residency status into viable work and settlement permits.