The odd couple: Free choice of asylum and temporary protection

 

Dr. Esin Küçük, University of Essex

Photo credit: Silar, via wikicommons media

The idea of free choice of protection state in asylum law has been entertained in the literature, mostly as part of the debate surrounding the reform of the EU asylum regime. Maiani, for example, convincingly makes a case for a free choice of asylum state and proposes scaled-up solidarity instruments to offset the implications of such a model for the preferred states. Mitsilegasproposes the mutual recognition of positive asylum decisions, which would allow refugees (instead of asylum seekers) to choose their country of protection. The idea of allowing asylum seekers to choose their country of protection was also considered by the Commission in debates about a reform of the Dublin Regulation, although it failed to find enough support for the reason that it would not provide for solidarity or a fair sharing of responsibility, a highly sensitive issue.

With the escalation of armed conflict in Ukraine and the arrival of refugees, the EU has found itself employing a form of de facto free choice model, which seemed politically unfeasible before. As far as solidarity and responsibility sharing is concerned, the EU’s perception of free choice of asylum has changed substantially, at least for the time being. In the Council Implementing Decision introducing temporary protection, a free choice system is presented as a way of facilitating a balance of effort between the Member States (Preamble 16). Free choice of asylum practices can prevent pressure from building up in neighbouring states that may have limited capacity to host asylum seekers and process applications. From the perspective of refugees, free choice practices also have merits. Instead of forcing asylum seekers to remain in a country where they may have no or limited ties, the free choice model allows them to join social networks that support their integration. In brief, the recognition of the potential of free choice of asylum in meeting the demands of asylum solidarity is a welcome development. Its practical advantages, such as preventing smuggling and irregular movements, are noted here(p.46), and here(p.29).

The legal foundation of free choice of asylum is the Schengen visa waiver which exempts Ukrainian nationals from visa requirements for entry into the EU and provides them with the right to travel within the EU for 90 days within a 180-day period (Article 4, Annex II). This means that displaced Ukrainian nationals can decide in which Member State they wish to exercise their rights as beneficiaries of temporary protection. This scheme of free choice is considerably different from the proposed models mentioned above, not least because it is coupled with temporary protection with the activation of the Temporary Protection Directive, which is also being tested for the first time.

This de facto free choice model, or more precisely its unexpected union with temporary protection, raises a number of questions. The EU asylum acquis, including the Temporary Protection Directive, is based on the permanency of asylum jurisdiction. Asylum processing responsibilities are assigned to a single state, which is often the country of first arrival according to criteria set out under the Dublin Regulation (Article 7). Within this system, the only way for asylum seekers to choose the state of protection is to enter the EU territory through the country where they wish to lodge an application. In practice, such a choice is rarely available. Secondary movements of asylum seekers are, in principle, prohibited, and returns are facilitated pursuant to the take-back mechanism provided under the Dublinsystem (Article 23). Finally, protection statuses are not valid throughout the EU, meaning that asylum jurisdiction cannot be transferred to another state.

The Temporary Protection Directive is also underpinned by the permanency of asylum jurisdiction. Under Article 8(1) of the Directive, the beneficiary of protection can exercise her rights in the Member State that has issued a residence permit. Preamble 9 of the Directive clearly shows that transfer of jurisdiction is something undesired and to be countered. To that effect, the Directive (Article 11) requires the Member States to take back a person enjoying temporary protection in their territory in the case of secondary movements. How does this system, which is centred around pre-assigning responsibility to a single state and preventing secondary movements, align with a free choice scheme?

The Implementing Decision seeks to integrate the spontaneously created free choice model into the existing framework. An important step taken towards an integration of the two systems is the abolishment of returns. It is worth mentioning that the Temporary Protection Directive (Article 11) allows the Member States to relinquish take back obligations through a bilateral decision. In the Implementing Decision, the Member States took a step further and decided to relinquish returns across the EU (Implementing Decision, Preamble 15). This is an important and positive development that goes well beyond what the Directive already allowed through bilateral agreements. Does this mean that a transfer of asylum jurisdiction is possible for temporary protection holders? The Implementing Decision does not directly deal with the transfer of protection jurisdiction, but Preamble 16 of the Decision provides some insights.

‘Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision.’

It is clear from this statement that the permanency of residence principle remains in place. Protection responsibilities are assigned to the Member State that issued the residence permit. On the other hand, the transfer of asylum jurisdiction is not altogether prohibited. It is in the discretion of the Member States to grant a residence permit to protection seekers who are offered temporary protection elsewhere (discussed here). This leaves us with a limited free choice model. Ukrainian refugees have full freedom to choose their country of protection before they receive a residence permit in a Member State. Once they choose their protection jurisdiction, the possibility of transfer depends on the willingness of the transferee state.

Does this midway position make sense? One of the rationales that underpin permanency of asylum jurisdiction is the lack of uniform status determination. This ground, clearly, is not pertinent given that the protection status of Ukrainian nationals became valid throughout the EU with the activation of the Temporary Protection Directive. A more convincing reason could be the goal to mitigate the implications of free choice on the popular asylum destinations. The limitation on transfers allows the Member States to refuse issuing residence permits to those who are already under protection, and thus may serve to limit increased responsibilities for some Member States that are feeling under pressure. However, Member States are not required to justify their refusal of transfer requests. The fact that full discretion is accorded to the Member States in deciding whether to allow transfers sits uncomfortably with the narrative of facilitating a balance of efforts.

The marriage of two different systems begs further, intertwined, questions: When do protection responsibilities start and on which state do they fall? These questions prove to be relevant especially in cases of movements before obtaining temporary protection. By way of example, consider a displaced person who moves to a second state where she registers with the authorities and receives a temporary protection certificate, before moving to a third Member State where she requests a residence permit. The Implementing Decision does not explicitly address this scenario, and different interpretations are possible. Based on the link between the exercise of temporary protection rights and a residence permit established by Preamble 16 of the Implementing Decision, it would not be too far-fetched to argue that the protection obligations start when the residence permit is issued in the country that issued the permit.

Related to the above, there is another loose end that needs tying up. The Implementing Decision presumes that the applicant will apply for a residence permit within the 90 days of free travel. What if our displaced person, who travelled across several Member States, fails to apply for a residence permit within the visa free period? Does the responsibility fall on the country where she was residing at the time when the visa-free period came to an end? Can the applicant simply choose where she wants to apply?

These rather technical questions may not be relevant to the majority of cases. However, they show that the unplanned merger of the Temporary Protection Directive and free choice of asylum most certainly requires further modifications and clarification. Nevertheless, (limited) free choice of asylum has brought a much-needed fresh perspective on border management in the EU, which one hopes will inspire the future design of the EU asylum regime.

 

Continue reading The odd couple: Free choice of asylum and temporary protection

Stateless people and refugees fleeing Ukraine

 

Chris Nash, Director of the European Network on Statelessness*

*Reblogged from the Network website

As the number of refugees fleeing Ukraine nears two million, we and our members on the ground have been mobilising to try to get a handle on the particular protection needs of stateless people forcibly displaced by the crisis.

We know from past experience, including research under our Stateless Journeys initiative, that stateless people fleeing conflict typically face additional issues and challenges crossing borders and accessing protection. We also know that statelessness is both a cause and a consequence of forced displacement.

Upon hearing anecdotal reports of difficulties experienced by stateless people trying to escape the war in Ukraine, we wanted to better understand the situation as quickly as possible. This week we have published an initial briefing to help inform refugee response actors on the ground so that problems can hopefully be anticipated and addressed before they become entrenched.

Statelessness in Ukraine

The last census in Ukraine in 2001 recorded 82,550 stateless people, and UNHCR estimated there to be 35,875stateless and people with ‘undetermined nationality’ in 2021. Other sources suggest there could be many tens of thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank recently estimated there to be 999,000 people aged over 15 in Ukraine without a national ID card. Although not all of these individuals will be stateless, many will be at increased risk of becoming so if the crisis becomes more protracted.

It is estimated that 10-20% of Romani people in Ukraine lack the civil documentation needed to acquire or confirm their Ukrainian citizenship. Other profiles of stateless people include former citizens of the USSR who were unable to demonstrate permanent residence in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who have been unable to acquire any nationality, have since passed their statelessness on to their children. People living in non-Government controlled areas, Crimea, and those internally displaced in Ukraine have faced significant barriers to obtaining or renewing personal documents since 2014, leaving an estimated 60,000 children born in these areas without birth certificates and at risk of statelessness.

In addition to these significant in-situ stateless populations, there are asylum-seekers, refugees, and migrants (and their children) who were residing in Ukraine and were stateless before leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have since become stateless due to displacement, discrimination or gaps in nationality laws, State succession, or deprivation of nationality practices.

In May 2021, Ukraine introduced a statelessness determination procedure to determine who is stateless on its territory and grant protection to stateless people, but this only recently became operational, and by 31 December 2021 only 55 people had been granted a temporary residence permit through the procedure. The vast majority of stateless people living in Ukraine will lack any documentation proving that they are stateless. This not only poses insurmountable barriers for stateless people trying to move within Ukraine given current circumstances, but also significantly impacts on their ability to move to relative safety within the country, cross borders, and access protection.

Current situation at Ukraine’s Western borders

The initial response of Ukraine’s western neighbours has been generous, with both government actors and civil society doing their utmost to welcome and receive unprecedented numbers of refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated that they are currently admitting everyone fleeing the war in Ukraine, including stateless people, those at risk of statelessness and/or undocumented people. A brief summary of policies in each of these countries is available in our briefing.

However, the picture is fast-moving and there is a need for vigilant monitoring given emerging evidence of inconsistent practices and racial profiling at different border crossings (e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing the territory, or additional ‘secondary screening’ procedures, including in detention-like conditions in Poland.

Equally, early information from ENS members suggests that stateless people and those at risk of statelessness fleeing Ukraine are likely to face additional barriers and differential treatment depending on their residence, nationality, and/or documentation status. More time and further research are needed to understand the detailed picture in terms of how different profiles of stateless people are likely to be affected.

Application of the EU Temporary Protection Directive and protection owed to stateless people

A big question mark about the level of protection likely to be available to stateless refugees from Ukraine centres around how the EU Temporary Protection Directive (TPD) will be applied by different countries.

The Directive, invoked by EU Member States on March 4, grants immediate protection in the EU (other than Denmark) to Ukrainian nationals and those who had international protection in Ukraine prior to 24 February 2022. Stateless persons who can prove they held a permanent residence permit in Ukraine before 24 February and ‘cannot safely return to their country or region of origin’, are also entitled to temporary protection, but Member States can choose whether to apply the TPD or ‘adequate protection under national law’. Member States may also extend temporary protection to others, including stateless persons who were ‘residing legally’ in Ukraine. People granted temporary protection are entitled to a residence permit (initially for one year, extendable up to three years unless safe return is possible), access to the labour market, housing, social welfare, medical care, and access to education for children.

EU Member States are not currently required under EU law to extend temporary protection to most stateless people and those at risk of statelessness who are/were living in Ukraine. People without proof of permanent residence or international protection in Ukraine may need to apply for asylum or another form of protection according to the laws of their host country. This could pose serious issues in terms of their access to rights and services and their ability to obtain protection, if denied access to asylum procedures (e.g. as is the case in Hungary), or, for example, if Ukraine was disputed as their country of origin. So, even if able to escape Ukraine, stateless people are at particular risk of subsequently finding themselves excluded or left in limbo, and, in some cases, also at risk of arbitrary detention.

This in turn highlights the need for greater awareness of the rights owed to stateless people under international law. Almost all European States are Party to the 1954 Convention on the Status of Stateless Persons and so must afford specific rights and protections to stateless people on their territory. Some countries have established a statelessness determination procedure to determine who is due protection under the 1954 Convention and grant protection status or a residence permit to recognised stateless people (other than refugee status or another form of international protection). In other countries, stateless people may access another form of protection or regularise their stay through other routes. The situation in terms of access to protection for stateless people in countries across Europe is by no means uniform. Our Statelessness Index serves as a tool to help stateless people and their legal representatives to understand and advocate for their rights.

The way forward – addressing statelessness as part of the developing refugee response

Our briefing makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that stateless people from Ukraine can access protection in line with international law.

First and foremost, EU Member States should use their discretion under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness regardless of prior residence status in Ukraine, or at least ensure access to equivalent forms of protection under national law. Linked to this, it is critical that lack of identity documents or other documentation does not prevent stateless people and people at risk of statelessness from accessing international protection or other forms of protection under national law.

Where access to temporary protection is not available, European States should ensure routes to protection and rights for stateless people on their territory in line with their obligations under the 1954 Statelessness Convention, as well as implement safeguards to prevent arbitrary detention.

Critical to this, will be enhancing the ability of border officials and refugee response actors to properly identify statelessness and risk of statelessness among those displaced from Ukraine so as to ensure their access to protection, including legal advice and other services. There is an urgent need to improve the availability of disaggregated data, using standardised guidelines and assessment tools at registration points, in protection procedures, and during legal counselling.

Training will also be key, and here there is a role for several actors, including UNHCR, the EU Asylum Agency, and NGOs and civil society experts. The EU Asylum Agency recently published a Registration Tool that has a section on identifying statelessness, which could be useful in this context. We are also in the process of developing a more extensive statelessness identification tool, which we will make available to all actors in the next few months.

Finally, reports on the ground suggest an important need for refugee response actors to identify and monitor statelessness and risk of statelessness among unaccompanied and separated children, as well as children born in transit and host countries, to ensure their right to a birth certificate, legal identity, and nationality is guaranteed. This is likely to become even more acute if the conflict and related displacement becomes more protracted. UNICEF and other child rights organisations will have a key role to play in this regard.

Next steps and looking beyond the conflict

Over the coming weeks and months, we will continue to monitor the situation, as well as seek to update and expand the scope of information available, including to understand how the Temporary Protection Directive is being implemented for stateless refugees displaced further across Europe. We will also explore other ways to support our members working tirelessly on the ground, including by trying to engage the donor community to support their efforts and to fund targeted assistance for stateless people who otherwise find themselves excluded from Europe’s refugee response.

Equally, there is still a lot we do not know about the situation facing stateless people inside Ukraine. We know from our Ukrainian member organisations working bravely and tirelessly inside the country that stateless people without documentation are unable to move internally or across checkpoints, so find themselves trapped. There have also been disturbing reports of racial discrimination, antigypsyism, and/or differential treatment based on documentation status at Ukrainian borders, which may be preventing some stateless/people at risk of statelessness from leaving Ukraine. More research is needed to better understand and try to address this situation.

Finally, if we allow ourselves to try to be optimistic in looking beyond this unspeakably awful conflict, there will be a critical need to address legal identity, documentation, and nationality issues as part of re-building efforts. The current situation is a sobering reminder of how stateless people routinely suffer from being forgotten and their needs ignored, especially in times of conflict. We cannot allow this to happen, and we and our members stand ready to work with all actors to guard against this.

Photo: Mirek Pruchnicki, Creative Commons

Continue reading Stateless people and refugees fleeing Ukraine

Temporary Protection for Ukrainians in the EU? Q and A

 

 

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.  Updated March 3 to refer to the Council agreeing on the decision. Updated March 4 to discuss the text of the decision. Updated March 28 to refer to guidance on and discussion of implementation. 

**For assistance on seeking temporary protection in the EU, and guidance on implementation, see the links at the end of the blog post 

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 decision to trigger the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

Member States indicated 'broad support' for use of the Directive at the EU Council meeting of February 27. The Commission duly proposed a Decision to give effect to this on March 2, alongside guidance for applying EU external borders law. The Council agreed on the  Decision on March 3, and formally adopted it on March 4. It applied from the same day. So to fully understand the legal rules now applying to those fleeing the invasion, it's necessary to discuss both the 2001 Directive and the 2022 Decision to give effect to it. What do these new rules mean for the hundreds of thousands – if not millions – of people now fleeing 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, but can choose to adopt its own rules on temporary protection if it wishes.

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 onlyto 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.  

However, the scope of temporary protection is further defined in the Council decision, given that, according to the Directive, the decision must specify the 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.

According to the Decision, those covered by temporary protection are: 'the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date':  

(a) Ukrainian nationals residing in Ukraine before 24 February 2022;

(b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,

(c) family members of the persons referred to in points (a) and (b).

The Decision applies in a different way to another category of people: 

...stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.

For this group, 'Member States shall apply either this Decision or adequate protection under their national law'. Adequate protection is not further defined; the preamble adds only that it is 'to be decided upon by each Member State'. The preamble also refers vaguely to the procedure which would apply to this group:

Those seeking to benefit from the protection should be able to prove that they fulfil these eligibility criteria by presenting the relevant documents to the competent authorities in the Member State concerned. If they are unable to present the relevant documents, Member States should redirect them to the appropriate procedure.

Furthermore, the decision notes that, as referred to in the Directive:

Member States may also apply this Decision to other persons, including to stateless persons and to 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. 

The preamble gives an indication of who might fall within the scope of this option: 

Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons. 

And the preamble indicates that 'in any event' this group of fleeing people 'should...be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin'. This reflects the Commission's guidance on how to apply external borders law in light of the mass influx. 

This does not exhaust the list of further groups of people who might be optionally covered, as the preamble goes on to say: 

...Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.

Next, the Decision gives a definition of family members covered by temporary protection, 'in so far as the family was already present and residing in Ukraine before 24 February 2022': 

(a) the spouse of a person referred to in paragraph 1, point (a) or (b), or the 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 national law relating to aliens; 

 

(b) the minor unmarried children of a person referred to in paragraph 1, point (a) or (b), 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 of displaced persons, and who were wholly or mainly dependent on a person referred to in paragraph 1, point (a) or (b) at the time. 

How was temporary protection set up?

The Directive is just a framework for a possible temporary protection system. So the temporary protection regime was not established automatically, but only because the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agreed that there is a mass influx of displaced persons. (In fact the vote in favour was unanimous).

According to the Directive, the Decision setting up temporary protection had 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.

This information can be found in the preamble. 

The European Parliament has to be informed of the decision, but did not have a vote beforehand.

Also, the Council decision had to set out when temporary protection takes effect (in practice, as of March 4 2022); ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’. Again, such information can be found in the preamble. 

 

How many people does it apply to?

The numbers covered by temporary protection are not necessarily unlimited. Member States had to ‘indicate - in figures or in general terms - their capacity to receive’ displaced persons. The Council decision setting up temporary protection had to set out these numbers. In practice, there is only a brief mention of this point in the preamble: 'over and above the absorption capacity of the Ukranian [sic] diaspora residing in the Union' a few Member States have indicated that they have capacity exceeding 310 000 places  Later on Member States ‘may’ declare that they have more reception capacity. 

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’. It will remain to be seen what happens on this point.

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 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.

After the initial year, temporary protection 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. 

Also, 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’. Member States must also ‘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.

According to the Directive, 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;

The Directive states that 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.

However, the rules on family members in the Directive have in effect been superseded by the Decision implementing it, which places both these categories of family members within the mandatory scope of temporary protection as such - without needing to take 'extreme hardship' into account. (The Decision does require that 'the family was already present and residing in Ukraine before 24 February 2022') 

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection. On this point, the preamble elaborates further: 

This Decision is compatible with, and can be applied in complementarity with, national temporary protection schemes, which can be considered as implementing Directive 2001/55/EC. If the Member State has a national scheme that is more favourable than the arrangements set out in Directive 2001/55/EC, the Member State should be able to continue applying it, since that Directive provides that Member States may adopt or retain more favourable conditions for persons covered by temporary protection. However, should the national scheme be less favourable, the Member State should ensure the additional rights provided for in Directive 2001/55/EC.

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. 

Can temporary protection beneficiaries move between Member States?

There are two dimensions to this issue: before and after obtaining temporary protection. 

Before obtaining temporary protection, the preamble to the Directive states that: 

Ukrainian nationals, as visa-free travellers, have the right to move freely within the Union after being admitted into the territory for a 90-day period. On this basis, they are able to choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union. This will in practice facilitate a balance of efforts between Member States, thereby reducing the pressure on national reception systems.

So the Member States have explicitly agreed to 'applicants' choice' as regards seeking temporary protection, facilitated by the short-term free movement of Ukrainians after their visa-free entry . (The preamble is silent about the position of non-Ukrainians covered by the Decision in this respect). This is a Copernican revolution from the way in which the EU's Dublin system treats the allocation of responsibility for asylum applicants - although Syrians, Eritreans and other asylum seekers have diasporas too. Moreover, most asylum seekers are from countries whose nationals do not benefit from a visa waiver. 

After obtaining temporary protection, the Directive states that if a person with temporary protection from one Member State remains on or seeks to enter (without authorisation) the territory of another Member State without authorization during the temporary protection period, the Member State which granted temporary protection must take them back. This is similar to the EU's Dublin system on responsibility for asylum seekers (on which, more below). However, the Directive provides that Member States may agree bilaterally that this rule does not apply.

In fact, during negotiations on the 2022 Decision, all Member States decided to apply this option of not applying the take-back rule, adopting a statement (not yet published in the EU Official Journal, but referred to in the preamble to the Decision) agreeing not to apply this rule in order to support frontline Member States, unless Member States agreed bilaterally that the rule would apply after all. This is very much a 'gentlemens' agreement', given that it is opposite to the default rule in the Directive: in other words, it is a political commitment which is arguably not legally enforceable.

Note, though, that if a person with temporary protection from one Member State decides to move to another Member State, they have no right to insist that their temporary protection status is transferred. So they have no rights as such in that Member State, even though it has made a commitment not to request the first Member State to take them back. The preamble makes this point explicit: 

Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision. 

 

How does temporary protection relate to asylum applications?

The point of a temporary protection regime is to reduce pressure on asylum systems, as the preamble to the Decision reiterates: 

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Indeed, it may well be the case in practice that most people with temporary protection will not feel the need to apply for asylum, as least as long as temporary protection is applicable. But the Directive nonetheless addresses what happens if they do apply for asylum.

According to the Directive, 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.

However, 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’.

As for which Member State would be responsible for considering an asylum application, the EU’s Dublin rules will determine in which Member State an application is made. In most cases, this will mean that the Member State that granted temporary protection is responsible for considering the application, because that entails issuing a residence permit, and the Dublin rules assign responsibility to a Member State which issued a residence permit. (This takes precedence, under the Dublin rules, over the responsibility of the Member State of first entry).  

Unfortunately, the temporary protection Directive could muddy the waters somewhat, as it refers to the Member State which has accepted the transfer of the person onto its territory being responsible. It is not clear if that is a different issue from being the Member State which issued the residence permit. Also the commitment not to send back temporary protection beneficiaries to the Member State which granted temporary protection overlaps awkwardly with the Dublin rules which would normally require this to take place for asylum seekers. 

  

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. However, the Returns Directive explicitly gives way to more favourable rules in other EU immigration or asylum law - which includes those in 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 Dublinrules 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.

 

Comments

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, modestly enhancing the level of protection when adopting the second phase. 

But following an initial welcome of people fleeing the Syrian civil war at the outset of the 2015-16 'refugee crisis', EU asylum law took a dystopian turn in practice. Pushbacks from the territory.  Collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU in the first place - even if it meant they remained subject to appalling treatment in that country.  Detention of asylum seekers in unpleasant conditions. A questionable, but legally unaccountable, quasi-agreement with Turkey. Informal - and again unaccountable - readmission arrangements. A border agency subject to increasing concerns about the legality and morality of its behaviour. 

The descent of asylum law in practice into this moral abyss has shown the EU and its Member States at their worst. But today's temporary protection decision shows the EU at its best - precisely because it waives so many of the basic precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment).  This can only be welcome, but it raises obvious questions about the double standards which apply to others fleeing war or persecution.

Assistance with and guidance on temporary protection 

Commission guidance on implementation of the temporary protection decision

Council discussion paper on coordination of implementation

ECRE compilation of information from different Member States

Luxembourg government

NGO in Luxembourg 

Austrian government hotline for those needing humanitarian assistance and legal aid

(section added March 4 2022, updated March 28 2022)

Further reading

2016 report on the implementation of the Directive in Member States' national law in 2016. Note that now the temporary protection Directive has been activated in practice, Member States might decide to revise their implementing measures. 

UK Statutory Instrument 2005/1379 implementing the Directive; UK Statutory Instrument 2019/745 repealing SI 2005/1379 in light of Brexit (see reg 52). 

(section added March 2 2022)

 

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. 

Continue reading Temporary Protection for Ukrainians in the EU? Q and A