The Challenges of EU Temporary Protection: Double Standards vs. Durable Solutions
Legal Advisor, AsyLex; Head of Refugee Protection, CSD Diaconia Valdese
Implementing Temporary Protection
In the context of International Refugee Law, the concept of “temporary protection” (hereafter, TP) has a relatively long history. Firstly conceptualized in the Asia-Pacific region, it reached a higher level of formalization with the EU 2001 Temporary Protection Directive (hereafter, TPD) – which also represents the only binding instrument in existence covering all aspects of the TP.
TP is commonly defined as a short-term emergency response to a mass influx of asylum seekers. It provides protection to individuals on a collective basis to comply with the traditional refugee law concept of non-refoulement. The European Union introduced it in the aftermath of the 90s war in former Yugoslavia, with the Council Directive 2001/55/EC on “minimum standards for giving temporary protection in the event of a mass influx of displaced persons.” Its main goal was to prevent national asylum systems from collapsing in case of massive flows of refugees, and to provide immediate protection to displaced persons. The TPD has no automatic application; rather, it needs to be activated through an implementing decision by the Council of the European Union, essentially acknowledging a mass influx of refugees and specifying the beneficiary categories, among other details.
Although the European continent has undoubtedly been subject to massive migratory flows in the past decade (after destabilizing events such as the Arab Springs and the Syrian conflict) the TPD had never been activated before. On 4 March 2022, in light of an estimated number of displaced Ukrainians ranging between 2.5 millions and 6.5 million, the Council unanimously decided it was time for the TP to finally enter into force.
The 2022/382 Council Implementing decision appears to cover four classes of beneficiaries: Ukrainian nationals residing in Ukraine before 24 February 2022; third-country nationals or stateless persons holding international or national protection in Ukraine before 24 February 2022; family members of the above categories; finally, and upon Member States’ discretion, third-country nationals or stateless persons with permanent residence status in Ukraine as of 24 February 2022. For foreigners with temporary forms of stay in the Ukraine, such as international students or temporary workers, Member States are given a choice as to whether to apply the TP. Under the TPD and its implementation decision, beneficiaries of TP are initially granted a one-year residency permit (which can be potentially renewed for up to three years) entailing the right to work, attend school, access medical treatments, and suitable accommodation.
A Double Standard
While the unanimous decision to adopt the TP in the context of the Ukrainian conflict needs to be applauded, we cannot exempt ourselves from questioning the unwillingness of EU Member States to activate the same mechanism in previous crises. Indeed, and despite the many voices calling for its activation, securing a qualifying majority vote in the Council proved to be impossible in 2011 (regarding mass displacement from Tunisia and Libya following the Arab Spring) and 2015 (when 1.3 million people came to the EU to request asylum following the Syrian conflict). On these occasions, many Member States believed that the activation of the TPD would have created a “pull factor” for migrants seeking access to the continent. In addition, according to the Study on the Temporary Protection Directive, some Member States believed that the level of rights granted by the TPD was too high, hence they were reluctant in activating it. Even the European Commission itself came to believe at one point in time that “it has been hardly possible to attain Member State agreement on the possible activation of the TPD. The [Commission, n.d.r.] therefore concludes that the Temporary Protection Directive no longer responds to Member States’ current reality and needs to be repealed”. The current emergency seems to have overturned all the preconceptions, demonstrating that – using Ciğer’s words – all criticism surrounding the TPD were not insurmountable obstacles, yet “the TPD was not implemented before 2022 because the Commission and the Council simply had no political will to activate it”.
A second aspect of concern relates to the potentially discriminatory national approaches towards non-Ukrainian third-country nationals. As previously mentioned, Member States should provide foreigners holding permanent residency status in Ukraine with temporary protection or another adequate protection status available at the national level. States are also encouraged, yet not obliged, to extend the TP towards third-country nationals holding short-term residence permits who are unable to return in safe and durable conditions to their country or region of origin. Only eight out of the twenty-seven EU Member States decided to include the latter category in their implementation schemes.
It is crucial to remember that, under International Refugee Law (IRL), states are not bound or legally obligated to protect everyone fleeing a conflict on a non-discriminatory ground. Yet the category-based issuance of temporary protection risks colliding with the very principle of non-discrimination. Even less encouraging are the worrying reports of racist treatment toward non-white third-country nationals during the Ukraine evacuation and attempts to cross EU borders.
The resulting picture is one in which the reception of TP beneficiaries is facilitated by the non-application of many basic precepts of the “usual” asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment), while other individuals fleeing war or persecution are subject to dubious double standards.
In the aftermath of the conflict in former Yugoslavia, the Union adopted the TPD with the expectation that refugees would be shortly enabled to return home safely – hence the use of the term “temporary” sounded fairly appropriate. The UNHCR also points out that the preferred long-term solution for individuals granted with such protection is typically repatriation, and states should focus on implementing practical arrangements for repatriation, reintegration, and rehabilitation in the country of origin. At the time of writing, it is impossible to predict how long the conflict will last, nor whether or not Ukrainians will ever be able to safely return to their homes. Many individuals may still need long-term solutions other than repatriation.
This would be the case of those who, despite the end of the conflict, won’t feel secure in returning to the country after experiencing military violence. Groups arriving from the eastern provinces (provided they will remain under the control of the Russian army) would probably prefer to remain abroad. Families with minors in school will predictably grow an attachment to the country of refuge, and their reunification with male relatives once their military service is over is an aspect to be taken into consideration as well.
With this in mind, states need to clarify any regularization opportunity in the medium and longer-term in order to ensure a meaningful and effective case-processing on an individual basis. Once the temporary protection regime ends, national and EU relevant immigration rules will apply. Those choosing to apply for asylum will have their cases assessed under the definition of ‘Refugee and Subsidiary Protection’ as provided for by the EU qualification directive. The general procedural rules will apply as well, together with the EU Dublin regulation, indicating states’ responsibility for processing the individual’s demand. The Dublin rules generally assign responsibility to the Member State that issued a residence permit to the foreigner – such as the TP-related residency permit. The TPD includes some unclear additional rules, shifting the responsibility to the state which has accepted the transfer of the person onto its territory (Article 18, TPD). Without further elaboration of this ambiguous wording, redistribution and case responsibility might become a point of contention.
Outside the asylum regime, it remains unclear whether or not the temporary measures would make more permanent residency permits available for beneficiaries. One example can be found outside the Union legal framework, namely in Norway. In case of mass flight, paragraph 34 of the Norwegian Immigration Act provides individuals with a one-year residency permit (renewable up to three years). A temporary permit may thereafter be granted, which in turn may provide the basis for a permanent residency permit. Surely, the management of the present crisis will test European principles and solidarity in the medium to long-term. In order for them to endure, protection needs of third-country national and medium-to-long-term solutions (other than return) would need to be seriously addressed long before the termination of the temporary protection regime.