"The EU system of temporary protection under Directive

2001/55/EC: the case of Ukraine compared to the existing system

of asylum".

Ioannis Lagouros (7340202102008)

LL.M. in international and European Law

The EU Area of Freedom, Security and Justice

2021-2022

Introduction

In February 2022 the Russian Federation launched an invasion against Ukraine which
resulted in a continued armed conflict with grave consequences on the civilian population of
Ukraine. Since the start of the invasion, it is estimated by the UNHCR that over 5.7 million
refugees have left Ukraine in order to flee the conflict, resulting in a refugee crisis, the
‘fastest growing refugee crisis since World War II’ in Europe according to the UNHCR. The
emerging humanitarian crisis has since affected many EU member states, prompting the EU
to take action in order to protect Ukrainians fleeing the conflict.

EU Member States are committed under International and EU law to offer protection to
people fleeing the conflict in Ukraine. To respond to the humanitarian crisis and the
increasing migratory pressure, the European Commission proposed the activation of the
mechanism described in the Council’s Directive 2001/55/EC providing of Temporary
Protection in case of mass influx of displaced persons. Following this proposal, a unanimous
decision was adopted by the Council establishing that a mass influx of displaced persons
from Ukraine is present and the Temporary Protection Directive (TPD) was accordingly
activated. Since the adoption of this Directive, the present crisis is the only instance of its
activation with the aim to effectively share the responsibility of admission and residence of
displaced Ukrainians who fled searching for international protection in Member States of the
European Union. However, since the activation of the Directive in order to protect some
categories of refugees there has been a “double-standards” criticism against EU migration
policy on the basis of a separate and weaker protection basis for refugees of other wars,
namely, the Syrian Civil War. The aim of this essay is to offer an introduction on the
functioning of the TPD and its recent application in the Ukrainian refugee crisis compared to
the system applied before, as well as, an approach of the future concerning the asylum
policy of the EU in light of the recent developments.

TPD
The Asylum policy of the EU is based on the Articles 67(2), 78 and 80 of the Treaty on the
Functioning of the European Union (TFEU). The aim of the EU’s asylum policy is a balance
between responsibility and solidarity according to the principle of non-refoulement focusing
on simple, fast and effective asylum procedures. Through pre-entry screening procedure
national authorities determine the status of the Third Country Nationals entering, offering
appropriate status to those who need international protection. In light of the still ongoing
refugee crisis since 2014, the migratory pressure affecting mainly Greece and Italy, shaped
the Unions policy towards asylum seekers from third countries. Endorsing the “Hotspot
approach” the Union provided the European Border and Coast Guard Agency (Frontex) and
Europol with extensive powers in order to cooperate with national authorities for the swift
identification, registration of incoming migrants. These measures also aim to promote and
apply the principle of solidarity and fair sharing of responsibility between Member States as
stated in the article 80 TFEU in the case of a migrant influx, mainly through relocations from
heavily affected countries to other Member States. However, in practice the very slow rate
of relocations together with continuous debate on the asylum and migratory policy of the
EU between Member States has led to the uneven distribution of third country nationals
seeking asylum in Europe.

In order to tackle these problems, the EU has adopted the aforementioned Council Directive
2001/55/EC of 20 July 2001 which also was the first-ever EU harmonizing measure adopted
in the area of asylum law. Aiming to reduce disparities between the policies of the Member
States on reception and treatment of displaced persons in a situation of mass influx, this
Directive emphasizes on the solidarity between Member States when an unforeseen and
unexpected influx of displaced persons takes place while also ensuring that national asylum
granting systems are not overwhelmed through en masse application for protection. The
primary tool of the Directive is the TPD which has become the object of controversy
regarding its activation resulting in its marginalization in the field of EU migration and
asylum policies. As already stated, the TPD had never been activated before the 3rd of March
2022 when the Council unanimously voted in favor of its activation concerning the displaced
Ukrainians fleeing the war. With the activation of the TPD, refugees are granted immediate
protection as a whole with the more drastic measure being the one-year residence permit
issued by EU Member States which can be extended given that the reasons for its
establishment are still present. Holders of these permits enjoy a variety of rights including
the right to work, education for those under 18, to attend school, access to social and
welfare assistance and medical care (including, as a minimum essential emergency care and
essential treatment of illness. It is interesting to note that requests for the activation of the
Directive in 2011 and in 2015 were not approved despite the mass influx nature in both
crises. Additionally, the Commission had proposed repealing the Directive in favor of a
“faster procedure to grant immediate protection to groups of third-country nationals”1
effectively disbanding the TPD option. The reasons for the supplantation of Temporary
Protection should be searched on its “en masse” characteristic. Admitting and hosting large
numbers of refugees for an indeterminate period could be very problematic for EU and
National politics. As stated, the granting of many rights to newly admitted refuges combined
with long-term obligations for member states is viewed by some EU Member states as the
first step to an integration of large number of refugees. Considering that the Directive would
enable faster distribution and relocation of refugees to other Member States from those
mainly affected, some states strongly objected its activation opting for policies such as direct
support to EU or non-EU main refugee hosting countries2.

Currently, the core groups benefitting from the TPD are Ukrainian nationals residing in
Ukraine before 24 February 2022 and third-country nationals and stateless persons who

1
SWD/2020/207
2
See the ‘EU-Turkey Statement’ concluded in 2016 for the financial support of Turkey by the EU to
keep refugees in designated hotspots inside Turkey.
benefitted from international protection or its equivalent under national law in Ukraine
before 24 February 20223.

In order to avoid Member State practices which may violate the “spirit” of the TPD, the
Commission issued a Communication4 offering implementation guidelines. Through effective
operational tools and coordination mechanisms the Commission aims to reduce the
likeability and feasibility of unequal treatment of refugees and selective solidarity. Among
the tools an administrative cooperation “Solidarity Platform” is proposed as set in article 27
TPD with central coordination from the Commission. Additionally, the Commission
encourages the empowerment of civil society organizations (such as human-rights NGOs and
diasporas) and cooperation between them and national authorities to facilitate reception of
refugees, relief national systems and combat issues such as human trafficking5. Lastly, States
are given a variety of funding resources in order to face the influx such as the COVID-19
relief funds, the “REACT-EU” funds and others6 offering flexible access to funding for all
people fleeing Ukraine.

Assessment and future

Being the first time that this directive is activated, problems and criticism arises both from a
legal and a political point of view. First of all, while recognizing that granting Temporary
protection to Ukrainian nationals and refugees residing in Ukraine is the right move for the
EU, other categories of people fleeing the war in Ukraine are not included in the scope of
temporary protection. Such groups include, asylum seekers, stateless persons and TCNs
staying legally in Ukraine like students. Though encouraged, there is no obligation of
Member States to expand TP to the aforementioned cases, reflecting, in one opinion, the
double-standards affecting the implementation of the TPD. Individual claims for asylum may
be also hindered by this approach which charges them with the burden of proof for their
inclusion to one of the groups. The main example is the case of those, who in anticipation of
the invasion, fled before 24 February 2022, a date set by the recital 14 of the Decision.

TPD, while not implementing or superseding Dublin provisions, offers legal solutions to
minimize the risk of failure in the mechanism of reception and protection of refugees, with
the most interesting being the recognition of the right of free movement in the EU for
asylum seekers. It is worth noting that the States agreed for the disapplication of Article 11
of Directive 2001/55/EC. Not surprisingly, the “take back” mechanism introduced in article
11 may not only hinder the implementation of the burden-sharing aspect of the TPD and the
solidarity mechanism, but also set an obstacle to the TPD implementation as a whole. With
the statement for the disapplication of article 11, the States sought to promote the “spirit”
of the TPD promoting the solidarity principle enshrined in article 80 TFEU and avoid cases of

3
Decision (EU) 2022/382, Articles 2.1.a. and b.
4
Communication from the Commission on Operational guidelines for the implementation of Council
implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from
Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing
temporary protection 2022/C 126 I/01
5
2022/C 126 I/01, Art. 6
6
COM 2022/0075 109 final
misimplementation and disengagement from the TPD. The “dual-solidarity”7 paradigm
introduced by the Decision (EU) 2022/382, is changing the whole modus operandi of the EU
in the cases of sudden migratory pressure. Contrary to the past practices, dual-solidarity
aims at sharing the same asylum policy across the EU, rationalizing the distribution of funds
in order to “to promote a balance of efforts to jointly manage intra-European
displacements”8.

The EU Member States and Institutions responded swiftly and unanimously in order to
provide humanitarian assistance to refugees and displaced persons from an invasion caused
by Russian aggression proving that the TPD constitutes an effective addition to the European
legal arsenal. However, on a more political point of view the same Visegrad States that now
profit from European solidarity and sharing the burden policies, were once harsh critics of
EU migratory policy implementating pushback policies, restricting asylum access and
generally opposing humanitarian assistance during the past years’ refugee crises. The status
of Ukrainians as (mostly) Christian Europeans in contrast with the refugees coming from the
Middle East and Africa in combination with the radically different handling and approach by
the EU as a whole, may give a -political- answer to the question of why the TPD was not
activated before.

This last observation can be a starting point for an insight into the future of asylum policy in
the EU. The Commission had previously pivoted to enhanced border security policy,
providing enhanced powers to Frontex and adopting the stricter stance of the Council on
border control and containment. The swift adoption of the long-dormant TPD through the
proposal of the Commission and the unanimous decision of the Council marks a turning
point in asylum and migratory policy. Will the long standing of the non-entry policies
towards non-European asylum seekers change with the adoption of the burden-sharing
policy along with the statement for the disapplication of the article 11 of the TPD in favor of
solidarity and acceptance of wider categories of asylum seekers? The answer to this
question is not simple as the true extent and duration of the Ukrainian refugee crisis is not
yet known making the problem no longer a short-term and temporary phenomenon
sparking concerns for the handling of millions of Ukrainians who, uncontrolled, benefit from
visa-free travel under EU law. Taking into account the millions of refugees remaining in
temporary protection status in Turkey since 2014, the stance could be criticized as
introducing double standards in humanitarian protection. Even in this case, not all people
fleeing Ukraine benefit from temporary protection and the reasons for the past and present
non-implementations of the Directive are identified as truly political. Naturally, the
proximity of the conflict, historical and cultural ties of European countries with Ukraine
contribute to Europeans considering the crisis an “intra-European” one and may explain the
different treatment. However, the main reason remains the sheer volume and the rapid
nature -developed in a few weeks- of the influx of Ukrainian refugees reaching directly EU
countries, contrary to the situation with refugees from the Middle East reaching firstly third
countries.

7
Vitiello D., The Nansen Passport and the EU Temporary Protection Directive: Reflections on
Solidarity, Mobility Rights and the Future of Asylum in EuropeEuropean Papers, Vol. 7, 2022, No 1,
European Forum, Insight of 30 March 2022, pp. 15-30
8
COM(2022) 91 final
Conclusion
The reaction of the EU Commission on the issue of TPD as a whole after the proposed repeal
of this mechanism remains to be seen. TPD was once considered by the commission to “no
longer respond to Member States’ current reality and needs”. However, the need for a swift
and effective response to the Ukrainian refugee crisis showed the importance of a
Temporary Protection Mechanism which protects effectively refugees and promotes
solidarity within the Union through burden-sharing. The fear of Russian aggression creating a
“butterfly effect” or even other similar conflicts in Europe threatening security and stability
of the European continent highlights the need for coordination among Member States in
implementing and further improving existing legal mechanisms to combat problems in cases
of a rapid refugee influx to the EU in the future