Next Step after the Termination of Temporary Protection Regime: Transition to RSD Procedures?

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Ayşe Dicle Ergin, Assistant Professor, Bilkent University, Faculty of Law

21 September 2022

Introduction

According to the UNHCR statistics as of 17 August 2022, around 6.6 million people have left Ukraine for Europe since the beginning of Russia’s attacks on 24 February 2022. Among these people over 3.8 million have been registered for temporary protection (TP) or similar national protection schemes in Europe. They included large number of Ukrainians and others who had been residing in Ukraine.

Ukrainian situation opened up a new chapter in the EU migration history. Two decades after its adoption, the European Commission for the first time proposed the activation of the 2001 EU TP Directive (EU TPD), and the Directive was officially activated on 4 March 2022 to respond to the mass influx from Ukraine. The EU TPD sets out the European TP model applicable in the event of mass arrival of third country nationals who are unable to return to their countries of origin due to armed conflict or generalized situations of violence. It also entails that an immediate protection is offered to beneficiaries on group-basis without pressuring the member states’ asylum systems.

The circumstances leading to the declaration of TP regimes naturally require the host states to focus on covering the immediate needs of the displaced persons. However the dynamics of the regime also necessitates the planning for the post-TP period, which is often neglected by the host states in their haste. The EU is not an exception to this trend. Currently, potential steps after the termination of the TP regime is not discussed – at least vocally – at the EU level. The present blogpost aims to focus on the next steps after the termination of the TP regime by the EU, particulary the possibility of initiating refugee status determination (RSD) procedures. To this aim, the blogpost will first give brief description of the TP; it will then highlight the changing focus of the TP regime and explore possible scenarios as ways out of the regime; finally it will present some lessons learned from Turkey’s experience and discuss about some options for the EU.

Temporary Protection (TP) Regime

TP is a regime typically implemented as emergency response to mass influx situations by states that are unable to cope with the large size of arrivals through implementing individual RSD procedures and it also addresses the protection gap by offering basic minimum rights and protection from refoulement to the persons fleeing armed conflict.

Under the TP regime, protection is granted to both refugees within the meaning of 1951 Convention, Article 1A (2) and broader category of forced migrants who would qualify for subsidiary protection. While serving the effective use of host state’s resources, it prevents the perception that TP beneficiaries in principle won’t return but stay permanently. In general, the expectation – and often the preferred durable solution – is repatriation. Thus its application puts limits to integration.

As its name indicates, the protection provided under the TP regime is intended to be of a pre-determined temporary duration. It is not always easy to determine the exact duration of the temporary regime needed while it has been acknowledged that it should not become a long-term solution for the host state with an upper limit of five years in 1990s and currently of three years.

The protection offered by the EU TPD is  also limited with a maximum period of three years if the reasons for TP continues to exist (EU TPD, Article 4). Moreover, notwithstanding the size and unexpectedness of the influx, the EU TPD also affirms the applicability of the 1951 Convention protection as it allows TP beneficiaries’ application for asylum anytime (EU TPD, Article 17). On the other hand, it does not guarantee that member states would process asylum applications during the TP period.[1]When the relevant provisions of the EU TPD (Recital 10, 18, Article 3, 17, 18 &19) are read all together, transition to regular asylum procedures is clearly envisaged.

Besides, the EU TPD includes provisions concerning return, yet this was conditioned to some standards under Articles 6 and 21. The Council may decide at any time by qualified majority that the TP shall come to an end as the situation in the country of origin permits “the safe and durable return of those granted TP”.

A parallel logic is also implicitly embedded into the TP Regulation of Turkey (TR TPR). TP is defined as an exceptional procedure applicable in mass influx situations during which the application of individual RSD is suspended (TR TPR, Article 2/1/f). Unlike the EU TPD, a maximum time limit to TP regime has not been set out in the TR TPR, Article 10. Syrians and other groups covered under TP are barred from making individual application for RSD and the applications of those already lodged an application before the introduction of the TR TPR are not processed during the implementation of the TP regime (TR TPR, Article 16 and Provisional Article 1).

In Turkey both the Law on Foreigners and International Protection (LFIP) and TR TPR offer safeguards against refoulement. However, the way out from the TP regime is not clearly defined. Under the TR TPR, Article 11, the President[2] has the power to decide on the termination of the TP regime based on the proposal of the Ministry of Interior.[3] Under the same article, the President is also entitled to decide which durable solution would be applicable for the TP beneficiaries following the termination decision (i.e., to order “voluntary” return of TP beneficiaries or the initiation of individual or group/prima facie RSD procedure or other legal basis for stay). At the same time TR TPR, Article 14 implicitly accepts repatriation as the main solution for the TP beneficiaries when TP is terminated. In this regard, TR TPR, Article 42 specifically gives the possibility to the Turkish authorities to facilitate and support the voluntary repatriation process of TP beneficiaries.

Changing Focus of the TP and the Way Out

In principle, TP was born as a return-oriented protection tool. However, Turkey’s TP experience has proven that states may be overly optimistic about the prospects for rapid and safe return. Historical examples also prove this. For instance, during former Yugoslavia crisis vast majority of Bosnians who had originally received TP eventually gained permanent or quasi-permanent status in the EU member states.[4] This experience has shown that when the TP process gets overly long, the solution of the situation gets equally difficult.

Considering the current security situation in Syria, repatriation of the TP beneficiaries does not seem possible in the near future.[5] According to UNHCR, the flight of civilians from Syria is still considered as refugee movement with the vast majority of Syrian asylum-seekers continuing to be in need of international refugee protection. The security situation in Ukraine does not look promising either. Similarly, the situation in Ukraine is defined as “volatile”, which is expected to continue for a while. Thus, states are advised to suspend the forcible returns to this country until the security situation improves significantly.

Looking prospectively, if the conflict situation in Ukraine does not end in the medium term, the EU should decide about the next steps after the termination of TP. Thus, the initiation or at least the planning for the initiation of individual or group/prima facie RSD procedures is quite essential. 1951 Convention is silent on RSD leaving the procedural aspect of the refugee protection to the discretion of the state parties. Thus, temporary suspension or delays in the processing of asylum applications in proportion to the capacity of the state per se would not breach the 1951 Convention.

Turkey’s Experience as a Lesson Learned

When we look at Turkey’s experience on TP, Turkish national asylum practice has not even proceed to the planning stage of transition to RSD procedures. On the contrary, such planning is getting more and more delayed. There are many reasons behind this delay. From a legal point of view, the wording of Article 14/1 of the TR TPR, which accepts “TP beneficiaries shall depart from Turkey following the termination decision of the TP”, equates termination of TP with the end of TP beneficiaries’ need for protection. In the minds of the authorities this may very well mean that termination of TP equals to almost immediate return. However, this would be quite a short-sighted view as the decision to terminate the TP regime (which is a political decision in lack of objective criteria for such termination) does not mean the end of the need for protection of the TP beneficiaries (which is a legal fact). Even if such termination occurs,  it should be assessed whether a Syrian could then be deported back to Syria under LFIP, Articles 4 and 55, which needs to be examined individually.

In essence, such equation is based on a previous misperception. Turkey acted with the initial assumption that the number of persons which it would have to process under regular asylum procedures would be limited thinking that Asad Regime would not last long[6] and Syrians would voluntarily return back to their homes. Thus, the steps rather focused on covering the humanitarian needs of TP beneficiaries and their access to services. Today the reality is far from a regime change in Syria.

According to the official figures, a total of 19.502 Syrians were resettled to third countries between 2014-2022,[7] 200.950 Syrians were granted Turkish citizenship on exceptional grounds[8] and 502.000 individuals voluntarily returned back to certain areas of within Syria. Currently 3.6 million Syrians benefit from TP, many of whom have been in Turkey over the five-year threshold of protracted refugee situation.

Traditionally, once TP is declared, the big task of determining the status of TP beneficiaries is being postponed to the future. Although not being obliged to process individual asylum applications seems to be an advantage in the short-run (as it helps efficient allocation of resources and allow some form of protection to the displaced persons) depending how the situation is handled during the duration of the TP, it may turn into a disadvantage because the more the process is postponed, the transition is also postponed.[9] It also negatively affects the devising of durable solutions.

On the other hand, the logic behind such postponement should not be forgotten. TP as a regime aims not only to prevent the overburdening of national asylum systems by allocating human, financial, institutional and time resources in a short period of time but also offers an opportunity to the authorities to plan on what steps to take when the decision to terminate the TP regime would be given by the policy makers. As analysed in this blog by Joanne van Selm, 2022 TP regime applied to Ukrainians is significantly different from the one applied to former-Yugoslavs during 1990s. The latter was less standardised, weakly harmonised and focused on return; while the current one supports the displaced persons as a priority rather than focusing on their longer-term solutions.

Even though the predominantly refugee character of the flow from Ukraine is difficult to deny, among TP beneficiaries there may be Convention refugees as well as those who face grave but non-persecutory harm and even those who do not deserve international protection. Currently it is not possible to make a proper assessment about the refugee status of Ukrainians under TP. As mentioned in this blog by Hugo Storey, differing views exist as to whether they would qualify for refugee status or subsidiary protection.

It is difficult to estimate how the conflict will evolve. Russian forces currently control the Eastern and South-eastern parts of the Ukrainian territory and reportedly have seen big losses since the invasion began.

If the conflict continues and does not allow return in the medium run, it is possible to initiate RSD process, which could be conducted individually or on group/prima facie basis. Individual RSD for 3.8 million Ukranians requires allocation of massive resources even if a short interview per case were to be conducted. This means that member states’ RSD capacities would be overwhelmed and meanwhile available sources couldn’t be channelled to assistance.

Instead, it is possible to initiate prima facie RSD (PFRSD), which could be defined as “an expedited form of individual RSD”. PFRSD would be applicable for those who come from specific parts of Ukraine within a specified time period. During this process personalized information (particularly the profiles of the individuals and their reasons of flight) obtained during registration could be utilized. PFRSD has certain benefits like cost-effectiveness but reliance on “thorough, clear and accessible” country of origin information is essential. With today’s technology and availability of diverse sources of information such reliance wouldn’t be a challenge for the case adjudicators. However, this process has a certain disadvantage due to its inability of not being able to detect cases with exclusion profiles. Therefore, for those cases triggering exclusion full individual examination should be utilized.[10]

Given the conflict-driven nature of the displacement from Ukraine, granting of subsidiary protection on prima facie basis would be quite likely as well. However, for such decision, it should first be determined that individuals within the group do not qualify for refugee status based on 1951 Convention grounds. In this regard the discussions concerning the nexus between the fear of persecution and the Convention ground(s) in the RSD process should be revisited as to whether “nationality” and “political opinion” grounds could be applicable for those feeling from the persecution of Russia.

The conflict may ceise and the Russian invasion may continue in some parts of Ukraine. In such a case, internal flight alternative (IFA) in some part of the Ukrainian territory not controlled by Russian forces might be an option within the RSD determination process. Accordingly, the EU may decide on the return of some Ukrainians as long as such returns would not violate the principle of non-refoulement and the EU member states’ human rights obligations. The added value of individual RSD enters into the scene at this stage to determine those who would not have well-founded fear of persecution to return certain parts of Ukraine based on a relevance and reasonableness test as defined by UNHCR Guidelines on IFA. Obviously, such determination is based on many factors, mainly the cease of the conflict in Ukraine as well as an individual risk analysis.

Putin regime may also withdraw from Ukraine in the future and for significant percentage of Ukrainians voluntary, safe and dignified return would be an option – at least in certain parts of Ukraine. In such a scenario, “TP beneficiaries’ being able to return” does not mean that “they would return voluntarily”. The possibility of return in line with international law could be established by a careful determination of protection needs through individual RSD. If some of the Ukrainians would be able to safely return back to safe parts of Ukraine, it could be argued that there wouldn’t be a need for the EU to wait for individuals’ personal decisions.

All in all, the EU authorities will need to assess the size and speed of the influx vis a vis the RSD capacities of the member states as well as the protection needs of the individuals and conflict related developments to decide on which option to choose. Currently, transition to RSD procedures after TP appears not being discussed at the EU level, however, this does not change the fact that such transition will have to take place if the conflict continues. What is crucial for any state hosting massive number of TP beneficiaries is to decide when and how to initiate such a shift including transition to regular procedures or application of other options. [11]  Any of these options require timely, strategic and detailed planning and development of a roadmap and procedure. The example of Turkey lacks such planning. This unfortunately shifts the protection to an uncertain sphere where mainly humanitarian assistance and access to rights are provided by the national authorities and durable solutions being largely ignored. As similarly argued by the editors of this blog, Turkey’s experience should rather be taken as a lesson learned. EU authorities should act wisely and be prepared for the reality that they would face in the near future.

Conclusion

EU TPD establishes a regime of exception applicable in mass influx situations where return to the country of origin is not possible while efficient operation of the asylum system – due to the mass influx – is not feasible. This does not undermine the application of the 1951 Convention as it guarantees access to asylum any time. TP serves as an interim solution until an appropriate long-term response could be developed. However, once a clear maximum duration is set for the termination of TP, well before such deadline, preparation and planning for the way out should also start. Because termination of the TP does not, in and by itself, mean the end of protection need and is not sufficient to conclude that safe and dignified return is possible. Therefore, based on the lesson learned from Turkey, in their plan, the EU authorities should also consider whether Ukrainians would be granted prima facie international protection status, should go through individual RSD or provided with long-term residence permits in the Member States. Time will show which of these option/s will be implemented by the EU authorities.

[1] Article 19/1 gives the discretion to states to exclude asylum applicants from concurrently enjoying TP.

[2] Due to the change of the governmental system of the Republic of Türkiye from parliamentary to presidential system, the term “the Council of Ministers” was amended as “the President” with Decree 703 of 9 July 2018, Article 71.

[3] No criteria have been set for the President to consider such termination. Obviously, such a formulation offers the President full discretion to decide about the end of the TP regime but such discretion lacks objective criteria.

[4] The stay of significant portion of Bosnians brought hesitation among the EU member states about burden sharing during Kosovo crisis. During NATO intervention in 1999, around 900.000 Kosovars crossed into the borders of the neighbouring countries including FYROM, Albania and Montenegro. However, vast majority of the evacuated refugees returned back to Kosovo in the following couple of months. See Durieux, J. (2014). Temporary Protection: Hovering at the Edges of Refugee Law. Netherlands Yearbook of International Law, 45, 221-253, p. 241.

[5] A recent ECtHR judgment against Turkey (Akkad v. Turkey) has confirmed this fact by stating that the forced return to Syria of a Syrian TP beneficiary under the guise of voluntary return was in breach of Turkish law and of the Convention.

[6] This view was also supported by some at the international arena as well.

[7] As of 18.08.2022.

[8] As of 10.05.2022.

[9] On a relevant note, another element that supports the expectation of Syrians to repatriate TPR, Article 25. This provision clearly excludes TP beneficiaries from obtaining long-term residence permit or application of citizenship as the time spent under the TP ID may not be interpreted to count for the fulfilment of 5 years uninterrupted legal residence as a precondition for such statuses.

[10] For a relevant contribution concerning exclusion see a relevant contribution in this blog.

[11] Another alternative would be the regularization of the status of TP beneficiaries through changes concerning residence and paving the way for long term residence for Ukrainians without initiating access to asylum procedures (Amendment of the Long Term Residence Directive, Article 3.2.b & Article 4 as recommended here).