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Reasons for the Activation of the Temporary Protection Directive in 2022: A Tale of Double Standards

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Meltem Ineli Ciger, Jean Monnet Fellow, European University Institute / Associate Professor, Suleyman Demirel University Faculty of Law

6 October 2022

Introduction

The Russian invasion of Ukraine began on 24 February 2022 and led to large-scale displaced persons. To protect Ukrainians fleeing the invasion, the Council unanimously adopted the Council Implementing Decision (EU) 2022/382 of 4 March 2022  giving those fleeing war in Ukraine the right to temporary protection. This was the first time the Council Directive 2001/55/EC (Temporary Protection Directive) has been activated, in other words, implemented to respond to the large-scale arrival of displaced persons fleeing a conflict zone. The Temporary Protection Directive applies to all EU Member States except Denmark, which has nevertheless introduced a similar national temporary protection scheme by adopting the Special Act on Temporary Residence Permit for Persons Displaced from Ukraine. Iceland, Norway, and Switzerland have introduced similar national temporary protection schemes as well.  As of 1 October 2022, according to the EUAA, almost 4,4 million persons fleeing Ukraine have registered for temporary protection in the 29 EU+ countries since the beginning of the Russian invasion in Ukraine.

In this contribution, I update my analysis and findings in an earlier post published in EU Immigration and Asylum Law and Policy in light of recent developments and figures and attempt to elaborate on reasons that the Temporary Protection Directive, as opposed to its two-decade of existence, implemented for the first time in 2022 to respond to large scale displacement from Ukraine.

 

A-The Temporary Protection Directive And Its Non-Implementation Until 2022

When I published my monograph, which was a revised version of my Ph.D. thesis, ‘Temporary Protection in Law and Practice’ in 2018, I was confident that there were six reasons behind the non-implementation of the Directive, I will examine these in detail below and explain why I was wrong to assume these reasons were valid.

  1. Mass influx was defined quite vaguely in the Temporary Protection Directive and there were no clear objective indicators of a mass influx situation

Temporary Protection Directive defines mass influx as: “arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme”. This is indeed a vague and flexible definition. Skordas notes that this definition requires the number of displaced persons to be ‘substantial’ and this assessment to be made by the Council and the Commission. According to Arenas, “The lack of definition of the concept (mass influx) is no anomaly but a conscious decision on the part of the Directive”. I previously argued that the absence of clear objective indicators of a mass influx is one of the reasons that can be accounted for the non-implementation of the Directive and that introduction of clear and objective criteria to define mass influx situations in the Directive can facilitate the Temporary Protection Directive’s implementation. Perhaps agreeing with this view, the Commission proposed new indicators to guide activation of the  ‘immediate protection’ which was foreseen to replace temporary protection in the Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum. The Commission’s proposal required “an exceptional situation of mass influx of third-country nationals or stateless persons  being of such a scale, in proportion to the population and GDP of the Member State concerned, and nature, that it renders the Member State’s asylum, reception or return system non-functional and can have serious consequences for the functioning the Common European Asylum System or the Common Framework as set out in Regulation (EU) XXX/XXX [Asylum and Migration Management], or (b) an imminent risk of such a situation” to activate immediate protection. I also previously concluded that for immediate protection to be activated/implemented: a) the number of arrivals should be disproportionate to the population and GDP of the Member State and the nature and scale of the arrivals should make the Member State’s asylum, reception, or return system non-functional (though I also questioned the relevance of a functioning return system as a consideration for determining the existence of a mass influx/crisis situation).

However, it seems the lack of indicators of a mass influx was not a real issue obscuring the activation of the Temporary Protection Directive. Only three days after the Russian invasion began the Justice and Home Affairs ministers indicated ‘broad support’ during their extraordinary meeting for the idea of activating the Temporary Protection Directive  whereas, activation of the Directive was proposed by the Commission on 2 March 2022. Considering the Council decided to activate the Directive on 4 March, the lack of indicators for determining a mass influx situation proved not to be an issue. However, one can also argue arrivals from Ukraine to the Member States were on such a scale that the European authorities had no doubt that this situation qualified as a mass influx.

  1. The activation mechanism of the Temporary Protection Directive required lengthy procedures and was quite complex

The activation process of the Temporary Protection Directive can be triggered by a Member State. Upon a State’s request or ex officio, the Commission must propose activating the Directive. Nonetheless, such a proposal has to be adopted by the Council with a qualified majority vote. While the Commission is the only EU organ that can submit such a proposal and is the only organ that has the right to suggest specific groups that will receive temporary protection, the Council has the exclusive authority to determine these groups. I previously argued that the activation mechanism of the Directive requires lengthy procedures and is quite complex; for instance, Member States cannot directly ask activation of the Temporary Protection Directive from the Council, only the Commission can do so. However, this, in the end, proved not to be an issue as well since the Council adopted the Commission’s proposal to activate the Directive unanimously just in 2 days (this is despite the fact that only a qualified majority decision would have been enough to activate the Temporary Protection Directive).

  1. It was difficult to secure a qualified majority vote in the Council in the face of an influx situation, which only seriously affected a limited number of Member States

When displacement from Ukraine began, most displaced persons fled to four Member States namely, Poland (756,000), Hungary (157,000), Slovakia (101,000) and Romania (63,000) but this did not prevent the activation of the Temporary Protection Directive (these numbers were as of 5 March). Although the displacement initially affected four Member States this did not preclude activation of the Temporary Protection Directive as the decision to activate the Directive was unanimous. Nevertheless, as a result of the Council’s decision not to implement article 11 of the Temporary Protection Directive and to give persons eligible for temporary protection freedom to choose the Member State in which they wish to register for temporary protection, other Member States now host large number of temporary protection beneficiaries as well. As of 1 October 2022, the number of temporary protection beneficiaries in the Member States bordering Ukraine is as follows: Hungary (30,000), Romania (67,064), Slovakia (95,179), Poland (1,409,39) whilst, according to UNHCR, Germany hosts more than 709,000 whereas, Italy and Spain host more than 157,000 and 144,000 temporary protection beneficiaries from Ukraine.

  1. Many Member States believed that activation of the Temporary Protection Directive may create a ‘pull factor’ for migrants seeking entry to the EU

Push–pull model offers a conceptual framework that foresees there are push factors in countries of origin that cause people to leave their country, and pull factors that attract migrant to certain receiving countries (see also here for pull-push factors). Pull factors are perceived to affect a person’s decision to choose his/her destination country hence, some Member States might have been reluctant to support the activation of the Directive due to the belief that activation of the Directive may create a ‘pull factor’ and attract more migrants and refugees to the EU. However, this was not a consideration when the Temporary Protection Directive was activated. I argue that because the Commission expressly mentions that all EU countries bordering Ukraine should allow entry of all people fleeing the war in Ukraine to the Union territories. This is a stark contrast with what is happening on the Southern borders of the EU where Frontex acts as a complicit in the pushbacks in the Aegean. If the Commission and Council were to be afraid of any kind of pull factor, it would not have instructed the Member States to keep their borders open to those fleeing Ukraine.

  1. Some Member States may find the level of rights of temporary protection beneficiaries high

Temporary protection beneficiaries are to enjoy the following rights and entitlements in the EU: a) a residence permit for the entire duration of the protection, b) access to information on temporary protection, c) access to employment (subject to a number of rules and restrictions such as those that are applicable to the profession and to national labour market policies), d) access to suitable accommodation, social welfare and means of subsistence (if necessary), e)access to medical care, f) access to education for children and g) a limited right to family unification (Chapter III of the Temporary Protection Directive). Temporary protection beneficiaries may also apply for international protection, although the Member States can postpone the processing of asylum applications until the end of temporary protection. Although the outlined are only minimum rights and entitlements that the Member States are required to provide to the temporary protection beneficiaries under EU law, Member States are free to extend the rights and/or remove any restrictions on the outlined rights and entitlements in the Temporary Protection Directive.

According to the Study on the Temporary Protection Directive, the fact that the Temporary Protection Directive, one of the reasons for the non-implementation of the Temporary Protection Directive could be identified as the adequate and fair level of rights, which the Directive provides to its beneficiaries. In the Ukrainian context, this was also not an issue since Member States have been offering these rights and entitlements since the beginning of March although according to reports by EUAA and ECRE, there are differences between practices of the Member States in terms of services relating to the provision of information, registration, consultation on access to rights, counselling, referrals to accommodation, basic care, documenting biometric data and security screening. Registration period can range from a  few hours to a few weeks in different Member States whereas, the amount of social assistance and shelter options including reception centres and private housing also vary among Member States.

  1. Many Member States believed that national asylum systems can handle the arrival of a significant number of refugees without activating the Temporary Protection Directive

One of the reasons suggested for the non-activation of the Temporary Protection Directive was the belief that asylum systems of the Member States can handle large scale arrival of refugees and migrants and their asylum systems can function as they should with the support of the EU institutions. In the case of displacement from Ukraine, it was clear in view of the rate and scale of arrivals, especially in Member States such as Poland, that national asylum systems would not able to cope. However, to what extent this particular criterion played a role in the activation of the Directive cannot be known, it is clear that if the Directive was not activated, Poland may have forced to process asylum applications of millions of displaced persons from Ukraine.

In light of these six reasons I came up with over the years on why the Temporary Protection Directive has never been implemented, it was not a surprise when the Commission concluded in 2020 that “Council Directive 2001/55/EC no longer responds to  the  current  reality  of Member  States  and  needs  to  be  repealed”  and proposed as part of its New Pact on Migration to introduce ‘immediate protection’ in the Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum, instead. Once, I was nearly sure that the fate of the Temporary Protection Directive was sealed. How wrong I was. The events of late February and early March 2022 show one thing: the six reasons I came up with over the years (and listed above) all boiled down to one reasoning: the Temporary Protection Directive was not implemented before 2022 because the Commission and the Council simply had no political will to activate it.

 

B-Activation Of The Temporary Protection Directive In 2022.  An Unexpected Turn Of Events

I argued previously that “The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations. Refugees and persons fleeing armed conflict, violence, and human rights violations can be protected within the Directive’s framework for up to three years. The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification.” For these reasons, due to its flexible eligibility criteria and its broad personal scope, its fine harmonisation and formalisation of the protection standards to be offered to temporarily protected persons, as well as its voluntary-based burden-sharing mechanism, that the Temporary Protection Directive is the right framework to respond to the mass displacements from Ukraine. But the question is not why the Temporary Protection Directive is activated within the context of the displacement from Ukraine, but why the Temporary Protection Directive was not activated before.

  1. Ukrainians are Europeans but Syrians, Afghans, Tunisians, Libyans and Iraqis were not

In 2011, the violence and conflicts which followed the fall of former President Zine el-Abidine Ben Ali compelled many Tunisians to flee. The fall of the Qaddafi regime in Libya and the NATO intervention also increased the number of asylum-seekers arriving at European shores; according to the Commission, 650,000 persons had fled Libya due to armed conflict and violence. Alarmed at the number of persons arriving in Italy, MEPs called on the Commission to propose activating the Temporary Protection Directive in 2011, but the requests made by the Italian and Maltese governments were rejected in the Justice and Home Affairs Council meeting on the basis that the conditions for activation were not met.

In 2015, nearly one million refugees and migrants arrived irregularly in Europe by sea whereas according to UNHCR more than 4,000 people have lost their lives while trying to reach the European shores.  In 2015, MP Elisabetta Gardini asked the Commission whether it agreed that the legal conditions for triggering the Temporary Protection Directive had been met in view of the Syrian conflict and ensuing crisis in the Mediterranean and, hence, a proposal to the Council had to be submitted.  However, once again, the Directive was not implemented.

Europe’s double standard for the treatment of asylum seekers and refugees depending on where they come from is well-documented. (see here and here) The different treatment of Ukrainians and persons from other nationalities at the Polish Border last week is a recent example showing how the treatment of persons seeking refuge at the European borders is discriminative. In the words of Lorenzo Tondo, a journalist reporting on the Ukraine Border:“I look on as the soldiers help Ukrainian women and children with their heavy luggage. I watch as they play with the children and caress their faces. As the scene unfolds, I can’t help but think that this is the same border force which, for months, a short distance north, along the same eastern border, has been violently pushing back asylum seekers from Syria, Iraq and Afghanistan who attempt to cross the frontier from Belarus. It is the same border force which, instead of offering a caring touch and a comforting smile, brutally beat the refugees from Aleppo, who are also victims of Vladimir Putin’s bombardments. In Przemyśl, the Ukrainians are served hot drinks. At the Belarusian border, at least 19 migrants have died in the frigid forests.”

Not very different from views expressed by Amnesty International, Global Detention Project, and Peers, I suggest here that the Temporary Protection Directive is activated unanimously because Ukraine is acknowledged as a European country and the Ukrainians are white Christian Europeans. This is also reflected, to an extent, in the Council Implementing Decision 2022/382 and the designation of the temporary protection beneficiaries by the Council.

The Temporary Protection Directive allows the Council to designate any group of third countries nationals who had to flee their country or region of origin including refugees, persons fleeing armed conflict and violence, and victims of systematic or generalised human rights violations, as eligible for temporary protection. On 4 March 2022, the Council decided the following groups to enjoy temporary protection in the EU: a) Ukrainian nationals residing in Ukraine who have been displaced on or after 24 February 2022 and their family members and b) stateless persons, and third-country nationals who benefitted from international protection or equivalent national protection in Ukraine before 24 February 2022 and who have been displaced from Ukraine on or after 24 February 2022, and their family members. (Cf. Peers) Besides these groups, the Council noted that temporary protection or adequate protection under national laws of Member States should be provided to stateless persons and third-country nationals who were holding valid permanent residence permits in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin.  According to the Commission, ‘adequate protection’ mentioned here should secure a dignified standard of living such as residency rights, access to means of subsistence and accommodation, emergency care and adequate care for minors.

Member States are free to extend temporary protection to other than those identified in the Council Implementing Decision (EU) 2022/382 of 4 March 2022, given that they flee Ukraine and need protection. Several Member States have indeed enacted legislation to provide temporary protection status to a broader category of displaced persons from Ukraine compared to those indicated in the Council Implementing Decision (EU) 2022/382 of 4 March 2022 however, these groups are usually nationals of Ukraine either who were already present in the host state on 24 February 2022 provided that their respective permits were about to expire (e.g. Finland, Austria, Germany, Netherlands, Estonia, Lithuania and Poland) or Ukrainian nationals who left Ukraine before 24 February 2022 (e.g. Romania, Germany, Spain and Sweden).  Only a few Member States grant temporary protection to third country nationals and stateless persons who did not hold an international protection status or were holding permanent residence in Ukraine. For instance, Spain extended the scope of temporary protection to also persons of other nationalities or stateless persons who were legally residing in Ukraine before 24 February 2022 and Ukrainian citizens in Spain. In Portugal, temporary protection is extended to  persons fleeing Ukraine who had  temporary stay or a long-stay visa in Ukraine and are unable to return to a country or region of origin. Moreover, Germany extended temporary protection to non-Ukrainian third-country nationals who were legally residing in Ukraine on 24 February 2022 for more than a temporary short stay and whose return to the country of origin is unsafe. Whilst,  Finland extends temporary protection to third country nationals who were residing legally in Ukraine, even if that was on a short-term basis, if they cannot return to their countries of origin. However, these states are the exception not the rule since most Member States follow the Council Implementing Decision 2022/382 and only a few Member States grant temporary protection to third country nationals and stateless persons who did not hold an international protection status or were holding permanent residence in Ukraine. This leaves a considerable number of third country nationals and stateless persons fleeing Ukraine out of the Temporary Protection Directive’s scope.

The Council’s decision not to include all third country nationals and stateless persons who were staying in Ukraine (legally or otherwise) but cannot return to the country of origin in safe and durable conditions especially all documented asylum seekers as persons eligible for temporary protection is unfortunate and I would argue reflects the double standards which were at play during the non-implementation of the Temporary Protection Directive.

  1. Ukrainian displacement is a result of Russia’s unjustified aggression

 “Europe stands by those in need of protection. All those fleeing Putin’s bombs are welcome in Europe.  We will provide protection to those seeking shelter and we will help those looking for a safe way home.” Ursula von der Leyen

The Temporary Protection Directive was not activated when large number of displaced persons from North Africa following the Arab Spring fled to Italy and Malta. The Directive was also not activated when thousands have fled the civil war in Syria and sought refuge in the Union by risking their lives. The mass displacement from Ukraine is a result of Russia’s unjustified aggression. Russia’s invasion has harmed civilians, women, and children and displaced more than a million Ukrainians in less than two weeks and violated Art. 2(4) of the UN Charter. Russia invaded Ukraine due to “Ukraine’s move towards the European Union and the West’s defensive military alliance, NATO”.  Thus, the EU has a direct interest in this conflict and sympathy for the Ukrainians and their fight against the aggressor.

In the Commission Proposal, one of the reasons given to prove that temporary protection is the appropriate instrument to respond to the Ukrainian displacement was the extraordinary and exceptional nature of the military invasion of Ukraine by Russia. Similar statements can be found in the Council Implementing Decision 2022/382  (Preamble para 3 and 4) which notes: “Following the invasion, which seeks to undermine European and global security and stability, the European Council, condemned Russia’s unprovoked and unjustified military aggression against Ukraine in the strongest possible terms, underlining the gross violation of international law and the principles of the United Nations Charter. The Union has shown, and will continue to show, its resolute support for Ukraine and its citizens, faced with an unprecedented act of aggression by the Russian Federation. This Decision forms part of the Union’s response to the migratory pressure resulting from the Russian military invasion of Ukraine.” These references imply that activating the Temporary Protection Directive was a response to the Russian military invasion of Ukraine. If the aggressor was a state other than Russia, it is doubtful whether the EU would have activated the Temporary Protection Directive.

  1. The speed and scale of large-scale arrivals justified activation of the Temporary Protection Directive

Article 2 (d) of the Temporary Protection Directive defines mass influx means “arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme”. There is no clear indication in this article or in the Temporary Protection Directive of what constitutes a mass influx. A number of indicators have been put forward. For instance, Skordas argued that the change in the absolute number of arrivals over a certain time period, the number of Member States affected by the arrivals as well as the ratio between the number of arrivals, the population, and resources of the Member States were among these indicators. Similarly, the Study on the Temporary Protection Directive proposed the following indicators to be taken into account: an absolute number of asylum applicants arriving per day/week/month; increase in arrival as opposed to previous periods; the number of applications to be processed vs the number of case workers in function; the occupancy rate of reception facilities in the Member States as well as population, GDP, and the unemployment rate of the Member States receiving the arrivals.

In the context of displacement from Northern Africa in 2011, UNHCR declared the number of refugees and migrants who had arrived in Lampedusa by sea between 29 January and 21 September 2011 as 55,298 (27,315 from Tunisia and 27,983 from Libya). Although at the time, Italy’s asylum and reception capacity was clearly overwhelmed, perhaps the number of arrivals in 2011 did not warrant activation of the Temporary Protection Directive. In 2015, the number of asylum seekers and migrants crossing the Mediterranean increased steadily from around 5,500 in January to reach a monthly peak in October of over 221,000. One million persons have fled to the EU irregularly by sea that year whereas, according to EASO, in 2015, EU+ countries registered 369 871 applications lodged by Syrians, 190,013 applications lodged by Afghans, 125 529 applications lodged by Iraqi citizens. These figures suggest that the Temporary Protection Directive could be easily activated for the protection of Syrians. However, there is no denying that compared to the arrival of Syrians to the EU in 2015, displacement from Ukraine was and still is much more rapid and the number of displaced persons is much higher.

Russia’s invasion of Ukraine began on 24 February and by the beginning of March, more than 650 000 displaced persons arrived in the Union through Poland, Slovakia, Hungary, and Romania. According to UNHCR more than 1,2 million people have left Ukraine to seek refuge in other countries since 24 February 2022. These figures show that more than a million persons have fled Ukraine to seek refuge over a 10-day period. The speed and scale of arrivals have been indeed significant. Although the Council Implementing Decision 2022/382 does not exactly provide clearly which were decisive elements for identifying the mass influx situation, when one reads along the lines, especially para 1-10 of this Decision, the following elements can be identified as decisive in determining the existence of the mass influx situation:

  • arrival of more than 650 000 displaced persons in the Union from Ukraine through Poland, Slovakia, Hungary, and Romania by 1 March 2022
  • the likelihood of high migratory pressure on EU’s Eastern borders (The Decision notes that “the Union is likely to be faced with a very large number of displaced persons, potentially between 2,5 million and 6,5 million as a consequence of the armed conflict, of whom it is anticipated that between 1,2 and 3,2 million would be persons seeking international protection”)
  • estimation that half of the Ukrainians coming to the Union benefitting from visa-free travel for short-stays would join family members or seek employment in the Union, whilst the other half could request international protection
  • a clear risk that the Member States’ asylum systems will be unable to process the arrivals without adverse effects on their efficient operation and on the interests of the persons concerned and on those of other persons requesting protection.

By reviewing the Council Implementing Decision 2022/382, one may conclude that the Council when determining the existence of a mass influx situation took into account: a) the number of arrivals i.e. the scale of arrivals, b) the rate of arrivals, c) potential and the actual migratory pressures, d) Ukrainians not needing a visa to arrive in the MS legally, d) potential and actual inability of asylum systems of Member States especially such as Poland to cope with the mass arrivals.

  1. Ukrainians can enter the EU territories and seek refuge

It is quite difficult for persons fleeing conflict and violence to enter the EU territories legally: the Member States often close down their diplomatic representations in war-torn countries and “for nationals of these countries, obtaining a visa to enter the EU is nearly impossible”. Moreover, the EU law and/or the ECHR does not oblige MS to grant a visa to TCNs and stateless persons fleeing conflict or violence in view of applying for asylum upon their arrival in the Member State (see X and X v Belgium ECLI:EU:C:2017:173;  M.N. and Others v. Belgium [GC], Judgment of 5 May 2020).

Although TCNs can apply for protection at the external borders, it is well known that the EU’s attempts to externalise its asylum policy to third states such as Turkey and the well-documented pushback practices make it difficult to seek asylum in the EU. Thus, for a Syrian, Afghan or Iraqi asylum seeker entering the Union territories legally or even approaching the EU border is very difficult and this lessens the number of displaced persons arriving in the EU and makes the activation of the Temporary Protection Directive more difficult.

As opposed to this, both the Commission Proposal and the Council Implementing Decision  make many references to the fact that “Ukraine is a visa-free country for entry into the EU.” Ukrainian nationals are free to cross the Union’s external borders for stays of no more than 90 days in any 180‑day period.  The EU opened their borders to those fleeing the conflict in Ukraine, not implemented pushback or non-entrée policies, and/or concluded a deal with a third country to stop new arrivals and this meant more Ukrainians could seek protection in the EU (as it should be) and this facilitated the activation of the Temporary Protection Directive.

  1. No third country to stop arrival of displaced persons

When more than one million refugees and migrants arrived irregularly in Europe by sea in 2015, the EU’s response was not to open borders or to activate the Temporary Protection Directive but to conclude a non-binding declaration with Turkey to stop arrivals.  On 18 March 2016, the EU and Turkey adopted the EU-Turkey Statement that had the purpose to end irregular migration from Turkey to the EU. In particular, the EU and Turkey agreed that all ‘new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.’ According to the Statement, Turkey will take any necessary measures to prevent the opening of any new sea or land routes for illegal migration from Turkey to the EU, and would cooperate with neighbouring states as well as the EU to this effect. In return for Turkey’s efforts to stop irregular migration, the EU agreed to allocate € 6 billion under the EU Facility for Refugees in Turkey.

When faced with the large-scale arrival of third country nationals, most of them coming from refugee-producing countries such as Syria in 2015, the EU’s response was not to open borders but to close them. The EU managed the so-called 2015 migrant crisis by adopting a migration deal with a third country namely, Turkey which hosts more than 4 million refugees and asylum seekers. In the case of Ukraine, the country has a direct land border with Romania, Poland, Slovakia, and Hungary and there is no third country where the EU can make a migration deal to stop the arrival of asylum seekers and return them.

 

Conclusions

Activation of the Temporary Protection Directive to respond to the large-scale influx from Ukraine was the right move, and it has provided and will continue to offer many benefits to those seeking refuge as well as the Member States. This is also confirmed by the EUAA which not surprisingly concluded that “temporary protection averted extreme pressure on asylum case processing.” One only hopes that Russia’s invasion of Ukraine ends soon, it becomes safe for Ukrainians to return to their homes and the time comes to terminate temporary protection. Yet, one only hopes that refugees coming from countries such as Syria, Afghanistan and Iraq would also be protected in a similar manner without pushbacks, barbed wires and with open borders and access to immediate protection and dignified treatment in the Union.

 

Further reading

‘Temporary Protection’ in: EU Immigration and Asylum Law (Text and Commentary) in: Steve Peers, Violeta Moreno-Lax, Madeline Garlick, and Elspeth Guild (eds) 571

Arenas N., ‘The Concept of Mass Influx of Displaced Persons in the European Directive Establishing Temporary protection’ (2005) 7 EJML 435

Carrera S., Ineli Ciger, M., Vosyliute L., Brumat L., ‘The EU grants temporary protection for people fleeing war in Ukraine: time to rethink unequal solidarity in EU asylum policy’ CEPS Policy Papers (2022).

Fitzpatrick, J. ‘Temporary protection of refugees: elements of a formalized regime’ (2000) 94(2) AJIL 279

Ineli-Ciger, M., ‘Time to activate the Temporary Protection Directive: Why the Directive can play a key role in solving the migration crisis in Europe’ (2016) 18(1) EJML 1

Ineli-Ciger, M., (2015). Has the Temporary Protection Directive Become Obsolete?: An Examination of the Directive and its Lack of Implementation in view of the Recent Asylum Crisis in the Mediterranean. In Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill 2015) 223

Ineli-Ciger, M., Temporary Protection in Law and Practice (Brill 2018)

Kerber, K., ‘The Temporary Protection Directive’ (2002) 4 EJML 193

Kjaerum, M., ‘Temporary Protection in Europe in the 1990’s’ (1994) 6 IJRL 444

Odysseus Network, Directive 2001/55 Temporary Protection Synthesis Report by Gregor Noll & Markus Gunneflo (2006) < https://odysseus-network.eu/wp-content/uploads/2015/03/2001-55-Temporary-Protection-Synthesis.pdf>

Peers, S., Temporary Protection for Ukrainians in the EU? Q and A, EU Law Analysis, 27 February 2022, http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html

Skordas, A., Temporary Protection Directive 2001/55 in: D. Thym and K. Hailbronner (eds.) EU Immigration and Asylum Law (Nomos 2022) 1177