Legal landmine: the risky proposition of extending the application of the EU Temporary Protection Directive beyond March 2025

 

 

Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law; Migration Policy Centre Associate, European University Institute

 

Photo credit: Falin, on Wikimedia Commons

 

What should follow once the deadline for the application of the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) to those fleeing the invasion of Ukraine expires in March 2025 is an important issue that has been analysed by many commentators including but not limited to myself (here and here), ICMPD, ECRE, Meijers Committee, Ergin,  Guild and Groenendijk, Bilousov and Woolrych and recently the European Parliamentary Research Service (EPRS) Briefing (written by Luyten). The Temporary Protection Directive provides that once temporary protection ends, temporary protection beneficiaries should access asylum procedures but not much else on what should happen once the regime is terminated. There are different academic and policy proposals on what should happen next ranging from offering various residence permits to Ukrainians to granting international protection as a group. I argued that the most preferable solution would be the transition of Ukrainians under temporary protection to a form of residency (preferably long-term residency) or international protection status as a group in the EU. But this blog post is not about what should happen next but when the temporary protection regime in the EU must end.

 

It is common knowledge at least around Brussels, as also mentioned in Wagner’s post, that for some time, several European politicians have put forward various not-so-sound arguments that the Temporary Protection Directive can be reactivated (so the temporary protection regime can be extended to six years or more) or it can be prolonged more than three years (with one-year extensions by the Council). Interestingly, the recent EPRS Briefing acknowledges such a possibility by citing a blog post written by a master’s student who argues “from a careful examination of the relevant provision in the TPD, it seems that no explicit time limit for the application is mentioned.”  I recently have been getting media requests asking about the possibility of extending the temporary protection regime in the EU for more than three years and the implications of such a very dangerous and legally risky interpretation. Since this issue affects more than 4.2 million Ukrainians many are women and children I decided to write this post and emphasise once again as a researcher working on the Temporary Protection Directive for more than a decade, why from a careful examination of the relevant provisions of the Temporary Protection Directive, there is indeed a very clear time limit provided in the Directive. I argue that the temporary protection regime in the EU (at least under the current text of the Temporary Protection Directive) cannot continue for more than three years. If the EU decides to follow this very legally problematic broad interpretation, it will risk not just violating the Temporary Protection Directive itself and the EU law principle of proportionality but also the 1951 Refugee Convention. [Update: on 11 June the Commission nevertheless proposed such an extension]

 

3-year time limit: is it really open to any interpretation?   

 

Article 4 of the Temporary Protection Directive provides:

 

“1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.

 

Where reasons for temporary protection persist, the Council may decide by a qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.”

 

Article 4(1) notes temporary protection is normally one year but can be extended to a further one year (which becomes 2 years) moreover, Article 4(2) provides that the Council can extend the existing these two years by up-to one year (so 3 years in total). In practice, after temporary protection was invoked in March 2022 for the initial one year, it was then subject to the two tacit extensions in the first sub-paragraph (taking it to March 2024), and then a Council decision under the second sub-paragraph to extend it for a further year, taking it to March 2025.

 

For a master’s student who is learning about the Directive or a politician who has never read any legal research on temporary protection this can be indeed a complicated wording and may not seem clear. Yet, the time limit provided under Article 4 of the Temporary Protection Directive which is ‘three years’ is explicit (see also Skordas p. 1194 and Peers who have written commentaries on the Temporary Protection Directive and agree with this view) and cannot be open to any other dubious broader interpretation which does not have any merit. Moreover, Skordas (in p. 1193) provides a detailed account of the discussions which took place before the adoption of Article 4 (the Commission in 1998 proposed a five-year time limit then suggested two years in its 2020 proposal whereas MS such as Germany asked for more time whilst, Ireland and Finland suggested less than a year) but in the end, the three-year time limit was “the compromise was based on the Proposal by the Presidency”. So, there is nothing in the preparatory documents of the Temporary Protection Directive that supports such a broad interpretation.

 

What would happen if the EU misguidedly decides to reactivate the Directive or prolong its implementation more than three years?

 

First, if the EU misguidedly decides to reactivate the Directive or prolong its implementation for more than three years, this would mean the Temporary Protection Directive itself will be violated. Second, such an action may undermine the Refugee Convention that all Member States are a party to. The Temporary Protection Directive, despite its many benefits to Ukrainians fleeing Russia’s full-scale invasion, involves derogation from the 1951 Refugee Convention since it suspends the asylum procedures and grants only a limited set of rights compared to the rights of refugees under the Refugee Convention. Mass influx situations, in certain cases, may constitute a valid reason to derogate from international instruments, including the Refugee Convention. It is acknowledged by Hathaway, Davy (Article 9 Chapter), Edwards, McAdam and Durieux, and myself that mass influx situations may give latitude to states to partially suspend implementation of the Refugee Convention in mass influx situations. Yet, as also repeatedly noted by Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (Crisis Regulation), which also foresees derogation in exceptional mass influx situations in the EU, measures derogating from the Refugee Convention as well as the EU asylum instruments (such as the Asylum Procedures Directive and the Qualification Directive) must meet the requirements of “necessity and proportionality, be appropriate to achieving their stated objectives and ensuring the protection of the rights of applicants and beneficiaries of international protection, and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.” (Article 1(2) of the Crisis Regulation). In light of this, I argue that extending temporary protection for more than three years (without any time limit) may not satisfy the criteria of necessity and proportionality and undermine the international obligations of Member States under international law.

 

Finally, this very legally problematic broad interpretation idea may cause a slippery slope, if one accepts the argument without any amendment of the Temporary Protection Directive, it can be re-activated or it can be prolonged with one-year extensions then who’s to say the temporary protection cannot be reactivated a third time or cannot be implemented for many years. Therefore, if the EU decides to reactivate the Directive or prolong its implementation without any further limits, this would also contravene the principles of proportionality and necessity and the existence of mass influx after so many years will not provide a valid reason to derogate from the relevant EU and international law instruments.

 

Conclusions

 

Temporary protection should be time-limited. Without such limits, temporary protection becomes not a practical framework to manage mass influx situations by granting protection to groups seeking refuge but a tool to undermine the Refugee Convention as well as the EU instruments and principles. The idea that the Temporary Protection Directive can be reactivated or prolonged without any limitation is just legally wrong. Moreover, aside from legal implications, the main risk is the uncertainty of extension. Leaving more than four million Ukrainians in limbo for many years without any durable solutions in sight is wrong and would undermine the success of the EU’s temporary protection regime implemented since 2022.