The Unexpected Resurrection of the Temporary Protection Directive following Russia’s invasion of Ukraine

The unprecedented activation of the 2001 Temporary Protection Directive in the wake of the Russian invasion of Ukraine has been welcomed as a ‘smart and pragmatic response of the EU institutions’. In this post, Salvatore Nicolosi (with the assistance of Francesca Bertin) suggests a more cautious approach, highlighting the risk of States using alternative protection labels based on emergency legislative measures to downgrade their obligations under international and EU refugee law, while generating a fictitious sense of solidarity. 

Dr Nicolosi’s post is the first in a series drawing on a RENFORCE expert seminar on the EU’s response to the war in Ukraine, held online on 8^th March 2022. Stay tuned to RENFORCE Blog for further analysis of the EU’s decision to provide weapons to Ukraine, the EU’s neighbourhood policies and Ukraine, the EU’s economic sanctions against Russia and the Ukraine war in the media.

Since a new armed conflict in Ukraine started on 24 February, more than four million refugees from Ukraine crossed borders into neighbouring countries in Eastern Europe, according to information by the United Nations High Commissioner on Refugees (UNHCR). Such a migratory flow led journalists and scholars to talk about a new ‘refugee crisis’ for the EU, after the migratory pressure of 2015.

This new crisis has especially impacted those Member States that had previously shown little to no cooperation as to the reception and relocation to their territories of refugees arriving in Europe, mainly through Greece and Italy. According to the UNHCR, Poland has currently shown solidarity by welcoming more than two million refugees from Ukraine, while more than 370,000 arrivals have been registered in Hungary and almost 300,000 in Slovakia. To respond ‘with unity and solidarity’ to ‘this crisis at the heart of our continent’ and offer immediate protection to millions of Ukrainians displaced within the EU, for the first time, on 4 March the Council of the EU, upon a European Commission proposal, unanimously adopted the Implementing Decision 2022/382 to activate the 2001/55/EC Temporary Protection Directive (TPD). This is an exceptional measure aimed at providing immediate protection in case of a mass influx of third country nationals, who are unable to return to their country of origin. This measure pursues two goals: avoiding the delays due to the ordinary process for refugee status determination; and avoiding that, because of this process in a context of a mass influx, the domestic asylum system collapses.

The unprecedented activation of the TPD has been considered a ‘smart and pragmatic response of the EU institutions’ and ‘a right move.’ However, notwithstanding such a generally optimistic view, this short post aims to suggest a more cautious approach. In fact, as I formerly argued, there is a risk that States use alternative protection labels, such as temporary protection, based on emergency legislative measures, to downgrade their obligations under international and EU refugee law, while generating a fictitious sense of solidarity. 

The Temporary Protection Directive: Doomed to Extinction

Defined by the UNHCR as ‘a method, in a situation of mass outflow, for providing refuge to specific groups or categories of persons recognized to be in need of international protection, without recourse, at least initially, to individual refugee status determination,’ temporary protection arrangements are pragmatic ‘tools’ of international protection, complementary to the international refugee protection regime. EU law codified such an emergency method in the 2001 TPD. Despite its alleged potential, and the requests by some Member States to activate it to cope with the migratory flows which originated in the aftermath of the Arab Spring’s revolutions and the influx of Syrians in 2015, the TPD had never been activated until the recent conflict in Ukraine.

Many factors, both at the political and legal level, such as the lack of clear guidelines regarding how to measure the existence of a mass influx, have influenced the lack of implementation of the TPD. The ongoing war in Ukraine marked a turning point, as it brought to operational life an instrument that the European Commission had itself condemned to extinction. As part of the new Pact on migration and asylum, the Commission proposed to repeal the TPD and replace it with a Regulation addressing crisis and force majeure in the field of migration and asylum, preserving but improving the rationale of temporary protection. However, as the relevant legislative proposals are still under negotiation and their adoption is not imminent, the TPD was considered as the current acquis in force offering the relevant tool to address the situation effectively.

‘Rise Up and Walk’: Temporary Protection as EU Emergency Legislation

The Council’s Implementing Decision introducing temporary protection due to the mass influx of persons fleeing Ukraine as a consequence of the war confirms that ‘temporary protection is the most appropriate instrument in the current situation,’ finally breaking the taboo of acknowledging the existence of a mass influx of third country nationals applying for international protection.

The appropriateness of this instrument is to be read in light of the fact that nationals of Ukraine do not need a visa to enter the Schengen area nor a biometric passport as they are admitted on humanitarian grounds. In this context, the adoption of provisional measures in emergency situations at the EU’s external borders, pursuant to Article 78(3) TFEU could not be useful. While the Court of Justice clarified that this provision can be used in exceptional circumstances, such as a sudden inflow of non-EU nationals, the fact that nationals of Ukraine are not compelled to stay in the country of first arrival, reduces the potential of Article 78(3) TFEU. This provision was, in fact, for the first time used during the migratory pressure of 2015 to relocate asylum seekers from Italy and Greece to the other Member States, thereby derogating from the Dublin Regulation’s criterion of the country of first arrival. At the end of 2021, the Commission also invoked Article 78(3) TFEU in the context of the Poland-Belarus border crisis.

The activation of the TPD did not come without criticism – especially as regards the potential discriminatory effects related to the treatment of different categories of individuals.

The Decision, as has been noted, ‘falls short of giving protection to everyone fleeing Ukraine,’ as it offers protection to three categories of people. These include Ukrainian nationals residing in Ukraine or third-country nationals or stateless persons benefitting from protection in Ukraine before 24 February 2022, and the family members of these two categories of people (the spouse or unmarried partner, the minor unmarried children, close relatives living as part of the family because of a relationship of dependance), (Art. 2(1)). The Decision excludes those who fled Ukraine before 24 February as well as the family members of those who were legally residing in Ukraine but unable to return safely to the country of origin. Moreover, the Decision left to the Member States’ discretion to grant protection also to a fourth category of persons, that is stateless persons and nationals of third countries other than Ukraine who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin. Regrettably, most of the Member States are choosing not to extend temporary protection to this last category of people. In addition, it is worth highlighting that, despite falling within the Implementing Decision’s remit, many third country nationals residing in Ukraine have been subject to racial discrimination preventing them from evacuating from Ukraine.

The personal scope of the TPD Implementing Decision confirms the lex specialis nature of temporary protection, which is limited ratione personae and ratione temporis, as it aims to offer protection for one year as of 24 February 2022, up to a maximum of 3 years (Art. 4 TPD), as well as ratione materiae, as it requires a situation of emergency, namely a mass influx of third-country nationals (Art. 2 (d) TPD).

As a lex specialis, apart from derogating from the Dublin Regulation and the ordinary asylum procedures, the application of temporary protection should be read in the light of the rights and entitlements established for applicants by the ordinary asylum legislation. In this connection, it is relevant to note that recipients of temporary protection have a set of minimal rights, including:

• the right to work and self-employment (Art. 12 TPD),
• access to suitable accommodation or, if necessary, the means to obtain housing (Art. 13 (1) TPD),
• the right to receive necessary assistance in terms of social welfare, means of subsistence if they do not have sufficient resources, and medical care, including at least emergency care and essential treatment for illness (Art. 13 (2)),
• the right to education for minors under 18 (Art. 14 TPD), and
• appropriate care for those with special needs such as unaccompanied minors and victims of torture, rape and other forms of serious violence.

These are rights that the Reception Directive recognizes to all applicants for international protection, although Article 15 (1) establishes that ‘Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged.’ However, as has been stressed, a major difference is the principle of free choice of the country where to enjoy temporary protection. This is a significant revolution as it breaks another taboo, namely the principle that applicants for international protection cannot choose where to apply for asylum.

Temporary Protection as an Exceptional and Ephemeral Enforcement of Solidarity

The activation of the TPD in favour of those fleeing Ukraine is certainly an example of prompt and pragmatic expression of solidarity in the short term. Such a sense of solidarity has been facilitated by legal and extra-legal factors. While the fact that Ukrainian nationals do not need a visa to enter the EU impacted on the decision-making and the choice to trigger the TPD, the ‘proximity’ of the war in Ukraine to the EU contributed to the perception of the crisis as European.

Nonetheless, doubts can be raised about the long-term consequences of the TPD. While Article 3 of the TPD confirms that ‘temporary protection shall not prejudice recognition of refugee status under the Geneva Convention,’ its activation is predicated on the assumption that those who are fleeing Ukraine can return to their country. As this is a non-predictable scenario, it is worth reflecting on whether a stronger protection status could be considered from the outset. Those receiving temporary protection, in fact, stand a chance of qualifying at least for subsidiary protection, if not refugee status, under the 2011/95/EU Qualification Directive. Accordingly, prima facie recognition of refugee status or subsidiary protection on the basis of apparent, objective circumstances in the country of origin, could potentially be a better expression of solidarity than the precarious temporary protection regime.

Also, at the level of intra-State solidarity, a final consideration concerns the long-term reception of the recipients of temporary protection. Article 25 of the TPD establishes that ‘the Member States shall receive persons who are eligible for temporary protection in a spirit of… solidarity’ and are required to indicate ‘in figures or in general terms’ their capacity to receive such persons. Neither the Implementing Decision nor the Operational guidelines for its implementation have operationalised such a provision, however, with some Member States (such as Italy) already indicating the maximum capacity of their reception systems. If the migratory flows continue, without a clear solidarity plan, in the long-term refugees from Ukraine, especially once the temporary protection ends, can become a divisive political topic calling into question once again the effectiveness of European solidarity.