Dr Meltem Ineli
Ciger, Associate
Professor, Suleyman Demirel University
Photo credit: Odessa Opera and Ballet Theatre,
by Konstantin Brizhnichenko, via Wikimedia
Commons
On 27 February 2025, the Court of Justice delivered its judgment in Case
C‑753/23 (Krasiliva). This is the second ruling on the Council
Directive 2001/55/EC of 20 July 2001 (Temporary
Protection Directive) following the Kaduna
decision (Case C‑244/24, joined with C‑290/24), which interpreted Article
7 of the Directive, which concerned the termination of the
temporary protection granted to persons benefitting from temporary protection at
the option of a Member State, ie who do not fall within the scope of the mandatory
obligations for Member States set out in Article 2(1) and 2(2) of the Implementing
Decision (EU) 2022/382 of 4 March 2022 (which applied the Directive to
those fleeing the Russian invasion of Ukraine) and the lawfulness of the return
decisions adopted in their regard.
In contrast, the Krasiliva
judgment concerns Article 8(1) of the Temporary Protection Directive, which
requires Member States to provide temporary protection beneficiaries with residence permits. The Court held that a person eligible for temporary protection who has
applied for temporary protection and a residence permit in one Member State but
has not yet received it, cannot be denied a residence permit attached to a
temporary protection status in another Member State solely on that basis. Moreover, the Court reaffirmed in
this case the right to appeal a decision on the inadmissibility of an
application for a residence permit linked to temporary protection status.
In my previous analysis here, I noted that the Court’s approach in Kaduna was largely
predictable. Similarly, this judgment from the Tenth Chamber is unsurprising,
and its reaffirmation of the right to challenge a negative residence permit
decision is welcome. However, the ruling is particularly significant in how the
CJEU addressed the first question concerning multiple temporary protection and
residence applications—while notably failing to engage with the second half of
that question. The judgment is unfortunately narrowly confined to the issue of
denying a permit solely due to a pending residence permit application in
another Member State, leaving broader and arguably more pressing issues
unaddressed, such as the status of individuals who have already been granted
temporary protection in one Member State but later apply elsewhere. Given these
omissions and the Court’s handling of the first question, I find the judgment
neither sufficiently clear nor well-reasoned.
Background of
the case
A Ukrainian
national entered the EU on 15 July 2022 and applied for temporary protection in
Germany on 19 July 2022 before filing a similar request in the Czech Republic
on 20 September 2022. The Czech authorities rejected her application on the
grounds that she had already sought protection in another Member State. Under
Czech law, a temporary protection application rejected because the applicant
has previously sought protection in another Member State is not subject to
judicial appeal. However, the Prague City Court ruled that it had jurisdiction
to review such decisions citing Article 29 of the Temporary Protection Directive (which provides
that individuals excluded from temporary protection or family reunification by
a Member State have the right to challenge the decision through legal
proceedings in that state) and Article 47 of the Charter and determined that
the Directive does not support rejecting an application merely because of a
previous application for temporary protection in another Member State, since
the grounds for exclusion are strictly limited to those listed in Article 28 (namely serious crimes, security threats, or actions
contrary to UN principles).
The Prague City Court annulled the Ministry of the
Interior’s decision and sent the case back for reconsideration. In response,
the Ministry of the Interior appealed, arguing that it is up to the Member
State where the application is made to grant protection and that multiple
applications should not be allowed. Consequently, the Supreme Administrative
Court suspended the proceedings and referred these two questions to the Court
for a preliminary ruling (para 21):
(1) Does
Article 8(1) of [Directive 2001/55], having regard also to the Member
States’ agreement not to apply Article 11 of that directive, preclude
national legislation under which an application for a residence permit to give
temporary protection is inadmissible if the foreign national has applied for a
residence permit in another Member State or has already been granted a
[residence] permit in another Member State?
(2) Does
a person enjoying temporary protection under [Directive 2001/55] have the right
to an effective remedy before a tribunal under Article 47 of the [Charter]
against the failure of a Member State to grant a residence permit within the
meaning of Article 8(1) of [that directive]?’
Can a Member
State deny a residence permit to a person eligible for temporary protection
only because he/she applied for or granted a residence permit in another Member
State?
What the CJEU said: Article 8(1) of the Temporary Protection Directive requires Member
States to ensure that beneficiaries of temporary protection receive residence
permits for the duration of their protection, along with the necessary
documentation or equivalent evidence. The Court first confirmed the right of persons
falling within the categories referred to in Article 2 of Implementing Decision
2022/382 to apply to the Member State of their choice for a residence permit
(para 28). As one might remember, Article 2 of the Council Implementing
Decision 2022/382 defines who is eligible for temporary
protection in the EU.
Article 11 of the
Temporary Protection Directive provides that a Member State must take back a
temporary protection beneficiary who ‘without authorisation’ stays in or
attempts to enter another Member State unless a bilateral agreement between
Member States provides otherwise. The Court also confirmed Article 11 of the
Directive does not apply when addressing the abovementioned question, as the
Member States chose not to implement it when adopting the Implementing Decision
(para 32-33). In view of this, the Court ruled that Article 8(1) must be
interpreted to prevent national legislation from denying a residence permit to
someone eligible for temporary protection under Article 2 of the Council Implementing
Decision 2022/382 solely because they have already applied for, but not yet
received, a permit in another Member State (para 33). Furthermore, the Court noted that for such
multiple applications, the Member States can (the Court used the term ‘it is
open to the authorities of a Member State’) examine and verify whether the
person applying for a residence permit falls within the scope of the Council
Implementing Decision 2022/382 i.e. eligible for temporary protection and enjoy
the status and whether he/she obtained a residence permit in another Member
State (para 30).
My analysis: Although in my opinion the Court’s reasoning is not clearly explained at all, its judgment appears to
reaffirm the following point: if a person eligible for temporary protection
applies for a residence permit in one Member State and then submits a similar
application in another, the second Member State cannot reject the application
solely because of the earlier submission. Instead, the second Member State
should assess the merits of the new application. The authorities in the second
Member State may verify whether the applicant qualifies under the relevant
temporary protection categories and if they have already obtained a residence
permit in another Member State. But the question remains unanswered: if,
following an examination on the merits, national authorities determine that the
person already holds temporary protection status or has a residence permit in
another Member State, can this serve as an automatic ground for rejection?
The Court’s interpretation
of Member States’ decision not to apply Article 11 of the Temporary Protection
Directive confirms that the Implementing Decision allows Ukrainians, their
family members, and a specific subgroup of third-country nationals identified
in the Implementing Decision who have fled the Russian invasion to apply for
temporary protection in any Member State of their choice. It is also notable
that the Court made a particular reference to recital 16 in the Preamble of the
Council Implementing Decision, which notes,
Ukrainian
nationals, as visa-free travellers, have the right to move freely within the
Union after being admitted into the territory for a 90-day period. On this
basis, they are able to choose the Member State in which they want to enjoy the
rights attached to temporary protection and to join their family and friends
across the significant diaspora networks that currently exist across the Union.
This will in practice facilitate a balance of efforts between Member States,
thereby reducing the pressure on national reception systems. Once a Member
State has issued a residence permit in accordance with Directive 2001/55/EC,
the person enjoying temporary protection, whilst having the right to travel
within the Union for 90 days within a 180-day period, should be able to avail
of the rights derived from temporary protection only in the Member State that
issued the residence permit.
As previously noted, this
approach—granting individuals the right to choose the Member State where they
seek protection and reside—stands in stark contrast to the Dublin rules, which
do not offer such a possibility for asylum seekers.
Notably, a significant
issue, in my opinion, in the implementation of the Temporary Protection
Directive concerns Ukrainian nationals who, after being granted temporary
protection in one Member State, move to another Member State to apply for
temporary protection and residence permits attached to the status. I have
personally received many questions about multiple applications in several
seminars and judge trainings. However, the Court limited its ruling to a very
specific scenario described and did not address this broader question. In a
sense, while the Court left open the possibility for Member States to deny a
residence permit to individuals who have already been granted temporary
protection in another Member State, it did not provide a definitive answer on the issue.
Can a person
eligible for temporary protection appeal against the failure of a Member State
to grant a residence permit?
What the Court said: The Court answered this
question as follows:
Article
8(1) of Directive 2001/55, read in the light of Article 47 of the Charter, must
be interpreted as meaning that a person enjoying temporary protection under
that directive has a right to an effective remedy before a tribunal against a
decision to reject as inadmissible an application for a residence permit,
within the meaning of Article 8 thereof. (para 40)
My analysis: Given that the Temporary Protection Directive was drafted over two
decades ago, it is particularly intriguing to define the precise scope of the right
to an effective remedy in the context of temporary protection. The CJEU’s
straightforward answer to the said question affirms the right of persons who are
eligible for temporary protection to a residence permit and clarifies that Article 47 of the Charter read
together with Article 8(1) of the Directive secures the right to challenge such
an inadmissibility decision. With this, the Court confirmed that the right to
appeal under the Temporary Protection Directive is not limited to Article 29,
which covers appeals against exclusion decisions under Article 28 and family
reunification rejections. Instead, Article 47 of the CFR should apply to ensure
a right of appeal against an inadmissibility decision, as the Directive
establishes a clear right to a residence permit.
The judgment raises further questions for which I do not have definitive answers, making it a worthwhile topic for discussion in the comments section. Does this judgment imply that all individuals whose temporary protection applications are rejected or deemed inadmissible now have the right to appeal such decisions before a tribunal? Can the denial of rights granted to temporary protection beneficiaries under Chapter III of the Directive now be challenged before a tribunal?
Analysis
The Temporary Protection Directive typically addresses multiple temporary
protection applications through Article 11, which establishes a take-back mechanism. However, given the Member States’
decision not to apply Article 11 or to use the quota system outlined in Article 25 of the Directive, the Directive remains
silent on how to manage multiple temporary protection applications.
In response to
concerns over double registrations and access to benefits, the Commission
launched the Temporary
Protection Registration Platform (TPP) on 31 May 2022. Most Member States
now participate in data exchange through this system to prevent duplicate
temporary protection registrations and benefits. Member States have developed
different approaches to handling multiple temporary protection applications and
secondary movements of Ukrainians. For instance, according to the Finnish Immigration
Service, “You cannot be granted temporary protection in more than one EU
country at a time. If you are granted a residence permit in Finland based on
temporary protection, your temporary protection residence permit in another EU
country will be cancelled.” In Germany
for instance, Ukrainians who already have a residence permit in another Member
State can still receive a residence permit. In contrast, Swiss
courts (not applying the Directive as such as Switzerland is a
non-EU country, but Swiss law is modelled on the Directive) found that the
validity of temporary protection or the possibility of renewing it in an EU
country precludes the granting of temporary protection (so-called S protection)
status in Switzerland. The same approach was followed by the Czech
authorities as well.
Given these inconsistencies, the CJEU in Krasiliva upheld the right of individuals eligible for temporary protection under Article 2 of Council Implementing Decision 2022/382 to choose the Member State in which they wish to apply for temporary protection and the associated residence permit. The judgment also clarified that a Member State cannot deem multiple residence permit applications automatically inadmissible but must assess their merits. However, by failing to explicitly address the second part of the first question namely, whether an individual who has already been granted temporary protection and a corresponding residence permit in one Member State can subsequently obtain temporary protection and a residence permit in another Member State, the Krasiliva ruling represents a missed opportunity to harmonise Member State approaches to multiple applications for temporary protection and residence permits.
Conclusion
While the Krasiliva judgment provides clarity on the specific application of Article 8(1) of the Temporary Protection Directive, it leaves broader issues unresolved, particularly regarding multiple applications for temporary protection and the associated residence permits. The Court confirmed that a Member State cannot reject a residence permit application solely because the applicant has previously applied for, but not yet received, protection in another Member State. It also reaffirmed that Member States cannot deny the right to appeal against such inadmissibility decisions. These aspects of the ruling are significant in affirming procedural rights within the scope of the Temporary Protection Directive. However, the judgment notably fails to address whether an individual who has already been granted temporary protection and a corresponding residence permit in one Member State may subsequently obtain temporary protection and a residence permit in another Member State. The absence of guidance on this issue creates legal uncertainty, leaving Member States without clear direction on how to handle such multiple applications consistently.
