No surprises here! What is discretionary remains discretionary in the CJEU’s first judgment on temporary protection

 

 

Dr Meltem Ineli Ciger, Associate Professor, Suleyman Demirel University

 

Photo credit: Francisco Anzola, via Wikimedia Commons

 

On 19 December 2024, the Court of Justice of the European Union gave its judgment in Joined cases C-244/24 and C-290/24 Kaduna. This is the first judgment delivered by the Court on the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive- TPD) and its application by the Member States towards persons forcibly displaced from Ukraine. The judgment clarifies important issues concerning the application of Article 7(1) of the Temporary Protection Directive which enables Member States to extend temporary protection to additional groups besides those covered by the Council decision triggering temporary protection, provided that those additional groups are displaced for the same reasons and from the same country or region of origin as those covered by the Council decision. It further answers crucial questions on the termination of the temporary protection granted to persons benefitting from temporary protection who does not fall within the scope of Article 2(1) and 2(2) of the Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine i.e. persons who were holding temporary residence permits in Ukraine and the lawfulness of the return decisions adopted in their regard.

 

Who is eligible for temporary protection status in the EU?

 

First, let me remind you of the eligibility criteria for temporary protection in the EU. When the Temporary Protection Directive is activated, the Council decides which groups of displaced persons qualify for the temporary protection status in the EU, as per Article 5 of the Directive. The Council did this by adopting the Implementing Decision (EU) 2022/382 on 4 March 2022. According to Article 2(1) of the Implementing Decision, 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, are eligible for temporary protection:

 

-       Ukrainian nationals residing in Ukraine before 24 February 2022 and their family members; and

-       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 their family members.

 

Besides the outlined groups, according to Article 2(2) of the Implementing Decision, Member States should grant either temporary protection or a national protection status to 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.  

 

There are also persons fleeing Ukraine who can be granted temporary protection at the discretion of the Member States. As per Article 2(3), Member States can grant temporary protection status to “other persons who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin.” This is in line with Article 7 of the TPD which allows Member States to extend temporary protection to additional displaced persons from the same region, provided they promptly notify the Council and Commission. In the judgment (para 94, 100), Article 2(1) and Article (2) of the Implementing Decision are defined as mandatory temporary protection clauses whereas, temporary protection granted on the basis of Article 2(3) of the Implementing Decision or Article 7 of the TPD is referred to as optional temporary protection. Member States such as Finland, Portugal and Spain not just the Netherlands made use of Article 2(3) of the Implementing Decision and some others such as Germany and the Czech Republic followed Article 7 of the Temporary Protection Directive and granted optional temporary protection to various groups fleeing Ukraine in the beginning of the mass influx situation.

 

Cases C-244/24 and C-290/24

 

Both cases referred to the CJEU concern third-country nationals holding temporary resident permits in Ukraine who have been granted temporary protection in the Netherlands despite not falling within Articles 2(1) and (2) of the Council Implementing Decision. In Case C-244/24, the CJEU examined the legal implications of temporary protection for a Nigerian national (P) who fled Ukraine to the Netherlands following the Russian invasion. P held a temporary residence permit in Ukraine until January 2023 and was granted temporary protection by the Dutch authorities without assessing his ability to return to his country of origin. P applied for asylum in August 2022, but the Dutch authorities did not decide on the application in August 2023. Simultaneously, his temporary protection was terminated with effect from 4 September 2023 and he was issued a return decision on 7 February 2024. P challenged this decision, arguing it was premature and violated his rights under EU law, specifically since the Implementing Decision (EU) 2023/2409 extended temporary protection until 4 March 2025. One should also note that, as of December 2024, the temporary protection regime is extended until 4 March 2026 with the Council Implementing Decision (EU) 2024/1836 of 25 June 2024.

 

In Case C-244/24, the Court was asked whether Article 6 of the Return Directive prohibits a Member State from adopting a return decision against a person who still has lawful residence under temporary protection. It further inquired whether it makes a difference if the return decision specifies that it will only take effect after the legal stay ends. Secondly, the Court was asked to clarify whether Article 1 of Council Implementing Decision 2023/2409, which extended EU-wide temporary protection until 4 March 2025, also applies to optional temporary protection status holders even if the Member State later decided to revoke their temporary protection before this extension (para 85).

 

In Case C-290/24, the CJEU also has been asked about the scope of optional temporary protection beneficiary categories and the implications of its cessation by Member States. The case concerned three third-country nationals (AI, ZY, and BG) who held temporary residence permits in Ukraine on 24 February 2022. They fled to the Netherlands after the Russian invasion, where they were granted temporary protection under Dutch legislation without assessing their ability to return safely to their countries of origin. However, on 7 February 2024, the Dutch State Secretary issued return decisions for all three individuals, requiring them to leave the EU within four weeks of 4 March 2024. The case reached the Dutch Council of State after conflicting lower court rulings. The Council of State referred the matter to the CJEU, raising questions about the duration and termination of temporary protection for those who fall within the optional temporary protection categories. The referred question was whether the Temporary Protection Directive requires optional temporary protection to continue during EU-wide extensions, or can a Member State terminate such optional protection early (para 93). The President of the Court decided to join these cases on 7 May 2024.

 

Questions addressed by the CJEU and the overview of the judgment

 

1.     Can temporary residence permit holders who fled Ukraine shortly before 24 February 2022 be granted temporary protection on the basis of Article 7 of the Temporary Protection Directive regardless of whether they could return to their country or region of origin in safe and sustainable conditions? (para 93-101)

 

The Court answered this question positively. It noted that Article 7(1) of the Temporary Protection Directive allows Member States to extend temporary protection to categories of persons not designated by the Council, provided they fled for the same reasons and from the same region or country. The Netherlands granted temporary protection to all holders of a Ukrainian residence permit, including temporary ones that were valid on 23 February 2022 and likely to have left Ukraine after 26 November 2021 (90 days before the invasion).  The Court confirms this is in line with the Council Implementing Decision 2022/382 recital 14, which encourages extending protection to those who fled shortly before 24 February 2022 (para 99) and partially also corresponds to Article 2(3) of the Council Implementing Decision.

 

2.     When can the Member States terminate optional temporary protection granted on the basis of Article 7 of the Temporary Protection Directive? (para 102-135)

 

To address this question, the Court first clarified that the temporary protection granted under Article 7(1) of the TPD does not result from an obligation laid down by EU law but from the autonomous decision of a Member State (para 111). According to the Court, Article 7 of the Directive gives Member States considerable discretion in determining who qualifies for temporary protection and for how long. Moreover, Article 7 aims to encourage Member States to broaden the categories of displaced persons eligible for temporary protection, thereby lightening the pressure on national asylum systems and preventing their collapse. The Court considered the Netherlands making use of Article 7 promoted these objectives despite limiting the protection period shorter than that of mandatory temporary protection. Based on this reasoning, the Court clarified that Member States are not required to terminate temporary protection for individuals granted protection under Article 7 at the same time as those covered by the mandatory clauses set out in Articles 2(1) and 2(2) of the Implementing Decision. This is also in line with the AG opinion (para 121, 122).

 

The Court noted Article 7(1) grants Member States the discretion to establish and withdraw temporary protection status for optional groups, as long as these actions occur within the timeframe during which temporary protection regime is in force as per the Council decisions. Moreover, the Court emphasised that a Member State may terminate temporary protection status for optional groups prior to the date on which the temporary protection regime is terminated by the Council, provided such action does not undermine the objectives or effectiveness of the Temporary Protection Directive and complies with the general principles of EU law including the principles of the protection of legitimate expectations and legal certainty. It is also noteworthy that, in interpreting a key criterion for applying and terminating temporary protection for optional categories, the objectives of the Temporary Protection Directive were identified similarly by the AG and the Court. Whilst, AG noted safeguarding of the proper functioning of the asylum systems of the Member States as the objective of the TPD, the Court identified it as “to preserve the proper functioning of the system of international protection within the Member States” (para 125).

The Court emphasised that persons enjoying optional temporary protection should be given a right to apply for international protection during or after the termination of the temporary protection regime and their applications must be decided.  

 

3.     Can a Member State issue a return decision for a temporary protection beneficiary even if the return decision specifies that it will only take effect after the temporary protection regime ends? (para 136-158)

 

The Court noted that Article 6 of the Return Directive only applies to individuals who are staying illegally in a Member State thus, as long as an individual is legally residing under optional temporary protection, a return decision cannot be issued. This restriction applies even if the return decision specifies that it will only take effect after the individual’s legal residence ends. The Court stressed that issuing a return decision prematurely undermines procedural safeguards and fails to respect the legal rights of individuals while their residence is still lawful. Moreover, the Court also noted that beneficiaries of optional temporary protection must enjoy the same rights as those covered under mandatory temporary protection, including a residence permit ensuring their legal stay until protection is formally withdrawn. Until their protection status ends, they remain lawful residents, and return decisions are therefore inadmissible. Finally, the Court concluded that even if a Member State seeks to prepare for the end of optional temporary protection by issuing a return decision in advance, such action violates EU law.  

 

Analysis

 

As the title of this post suggests, the judgment and the way the Court addressed the outlined questions are not surprising. The decision also mostly aligns with the opinion of the AG.

  

Temporary protection, unlike international protection, is a time-limited, exceptional and discretionary protection framework only to be applied in mass influx situations. While the Council determines the categories of beneficiaries and the duration of the temporary protection regime within the EU, the Court confirmed that Member States retain discretion to decide which additional groups, beyond those identified by the Council as ‘mandatory categories’, may benefit from temporary protection on the basis of Article 7 and for how long they may enjoy it. However, as the Court underlined, this discretion is not without limits. The following principles must be observed when determining the termination of temporary protection for optional groups:

 

-       Member States may independently terminate temporary protection for optional groups before the official end date of the EU-wide temporary protection regime established by the Council. However, such actions must comply with EU principles, including legal certainty, and must not undermine the objectives or effectiveness of the Temporary Protection Directive.

-       Temporary protection beneficiaries should be able to apply for international protection during or after the end of the temporary protection and asylum applications must be processed.

-       All temporary protection beneficiaries irrespective of falling into the mandatory or optional category must enjoy the same rights and this includes access to a residence permit allowing legal stay until their temporary protection is formally withdrawn.

-       Return decisions can only be issued to individuals who are staying illegally in a Member State. While beneficiaries of optional temporary protection remain lawful residents, issuing return decisions, even those with a delayed effect, may violate EU law.

According to the Commission, as of the end of October 2024, 4.2 million people fleeing Ukraine due to the Russian war of aggression were under temporary protection in EU countries. Of these, 98.3% were Ukrainian nationals. This indicates that the judgment concerns a very small percentage of individuals granted temporary protection in the EU and only a handful of Member States which broadened the scope of the temporary protection regime. Nevertheless, the Court’s interpretation of Article 6 of the Return Directive raises important points that may become increasingly relevant in the future, particularly when the Council decides to terminate temporary protection for Ukrainians. The Court clearly established that no return decisions are to be adopted before the termination of the temporary protection regime.  It is important for all temporary protection status holders to be given an opportunity to claim asylum and their applications are examined and decided before their removal.

 

Although the legal reasoning of the Court in this judgment, at least in my opinion, is justified, there is an interesting point: both AG opinion (para 27-34, 112) and the judgment (para 65-66) mention Article 4 and the extension of the temporary protection until 2026 as a matter of fact, but none of these texts questions or engages with the question whether the extension of temporary protection is in line with Article 4 of the TPD and EU law. As an author who argued that the extension of the temporary protection until 2026, ie beyond three years, contravenes Article 4 of the Temporary Protection Directive, it is indeed interesting that both the Court and the Advocate-General did not discuss the legality of such an extension but merely acknowledged the existence of it. Perhaps this is a question which should be referred to the CJEU in the future.