Professor Steve Peers, University of Essex
*updated March 2 2022 to include the Commission proposal for use of the temporary protection Directive, and guidance for applying EU external borders law.
Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure – the possible use of the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never used.
According to the EU Council, there was ‘broad support’ for this idea among EU home affairs ministers meeting informally on February 27, and the Commission will propose doing so ‘without delay’. The Commission duly made this proposal on March 2. (I’ll update this blog post again when and if the Council adopts it). What does this mean for the hundreds of thousands – if not millions – of people now fleeing the invasion of Ukraine?
Which Member States does it apply to?
EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in – although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive.
The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).
Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.
Who is covered by temporary protection?
The Directive applies to a ‘mass influx’ of ‘displaced persons’. A ‘mass influx’ is defined as:
…arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;
‘Displaced persons’ are defined as:
…third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:
(i) persons who have fled areas of armed conflict or endemic violence;
(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;
‘Article 1A of the Geneva Convention’ refers to the definition of ‘refugee’ under the UN Refugee Convention – ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group – although note that the Directive does not necessarily apply only to those who fall within that refugee definition (‘who may fall within’). Those fleeing Ukraine can point to the ‘armed conflict’ ground of the ‘displaced persons’ definition in this Directive – although note that the list of the two groups who are covered by the Directive is not exhaustive (‘in particular’), meaning that other groups of people might meet the definition too.
Note also that the Directive only applies to those leaving ‘their country or region of origin’. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their ‘origin’ is in Ukraine (‘origin’ is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: ‘outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country’ (or, if stateless, of their country of habitual residence).
Conversely, this means that the Directive does not apply to those whose ‘origin’ is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion – and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.
The scope of the Commission proposal is ‘the following categories of persons displaced as of 24 February 2022 following the military invasion by Russian armed forces on that date:’
(a) Ukrainian nationals residing in Ukraine;
(b) Third-country nationals or stateless persons residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin; The requirement of inability to return in safe and durable conditions to their country or region of origin shall not apply to third-country nationals or stateless persons who have been legally residing on a long-term basis in Ukraine.
(c) family members of the persons referred to in points (a) and (b), regardless of whether the family member could return in safe and durable conditions to his or her country or region of origin.
The proposal defines family members as, ‘in so far as the family already existed in Ukraine at the time of the circumstances surrounding the mass influx’:
(a) the spouse of a person referred to in points (a) or (b) of paragraph 1 or their unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;
(b) the minor unmarried children of a person referred to in points (a) or (b) of paragraph 1 or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted;
(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx, and who were wholly or mainly dependent on a person referred to in points (a) or (b) of paragraph 1 at the time.
However, the guidance on applying external borders law applies to others fleeing the invasion too. It suggests that the usual criteria for entry across the external borders could be waived for anyone fleeing the conflict, and states that:
Member States should ensure that non-Ukrainian third country nationals, other than those covered by the scope of the Temporary Protection Directive or who have a right to stay in the Union on the basis of other grounds, transit to their countries of origin or usual residence after entry. So as to avoid situations of illegal stay, Member States are encouraged to provide – if needed – assistance for their repatriation or regularisation, as appropriate. The Frontex Standing Corps can be deployed to support these assisted departures.
How is temporary protection set up?
The Directive is just a framework for a possible temporary protection system. A temporary protection regime is not established automatically, but only after the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agrees that there is a mass influx of displaced persons.
The Council Decision setting up temporary protection has to be based on:
(a) an examination of the situation and the scale of the movements of displaced persons;
(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;
(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.
The European Parliament must be informed of the decision, but does not have a vote beforehand.
The Council decision must specifythe groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.
Also, the Council decision must set out when temporary protection takes effect; ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’.
How many people will it apply to?
The numbers covered by temporary protection are not necessarily unlimited. Member States must ‘indicate – in figures or in general terms – their capacity to receive’ displaced persons. The Council decision setting up temporary protection must set out these numbers. Later on Member States ‘may’ declare that they have more reception capacity. The Commission proposal does not include numbers.
If the numbers who are ‘eligible for temporary protection’ is higher than the numbers that Member States have said they can accept, ‘the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected’.
If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications – but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.
How long will it last?
The starting point is that temporary protection is one year long, although it can be terminated early if the Council (ie Member States’ home affairs ministers) decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so ‘as to permit the safe and durable return’ of the beneficiaries.
It is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.
What rights do people covered by temporary protection have?
Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter. If a person remains on or seeks to enter the territory of another Member State without authorization during the temporary protection period, Member States must take them back.
Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.
As for social welfare and housing, Member States must ‘ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing’, and ‘shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care’ – which ‘shall include at least emergency care and essential treatment of illness’. There is also an obligation to ‘provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.’
For education, Member States must give ‘access to the education system under the same conditions as nationals of the host Member State’ for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.
Member States have to authorize entry of family members, ‘in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx’. But this only applies to ‘core’ family members:
(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;
Admission of a broader group of family members is only optional, ‘taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place’:
(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.
Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection.
Finally, there is a right to ‘mount a legal challenge’ to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts.
How does temporary protection relate to asylum applications?
Temporary protection ‘shall not prejudge’ refugee recognition under the Refugee Convention. It will be possible to apply for asylum ‘at any time’.* Any asylum application not processed by the end of the temporary protection period has to be processed afterwards.
Moreover, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.
Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’). Exclusions ‘shall be based solely on the personal conduct of the person concerned’, and must be ‘based on the principle of proportionality’.
What happens once temporary protection expires?
Once the temporary protection regime ends, the ‘general laws’ on protection and on foreigners apply, ‘without prejudice’ to certain specific provisions in the Directive. Arguably the reference to the ‘general laws’ must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU’s Returns Directive, which were adopted after the temporary protection Directive.
For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU’s qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU’s Dublin rules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.
It’s also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).
Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it’s anyone’s guess if it will do.
There is an express possibility of enforced return of persons after the regime has ended, but such return must be ‘conducted with due respect for human dignity’, and Member States ‘shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases’. They must also ‘take the necessary measures concerning’ residence status of former beneficiaries of temporary protection ‘who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted’. Specifically, those persons ‘shall not be expelled so long as that situation continues.’ Finally on the issue of return, Member States have discretion over whether to let children complete their school year.
It remains to be seen if Member States agree to the Commission proposal to establish temporary protection, and if so what the details are – in particular, how many people are covered by it. When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications.
In practice, the EU has since adopted two phases of asylum laws, and concern has turned to how they are applied in practice – in particular as regards pushbacks from the territory and collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU. In contrast to this hostility, a temporary protection system may be welcome – although it would be in stark contrast with the often unpleasant and unjustifiable treatment of others fleeing war or persecution.
Photo credit: Leonhard Lenz, via Wikimedia Commons
*Corrected on Feb 28 2022 to drop the statement that ‘Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended’. In fact the Directive does not explicitly provide for this as such – although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies.