Temporary means temporary? The Commission proposes the extension – and the phase-out – of temporary protection

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Moahim, via Wikimedia Commons

 

Introduction

What is the future of temporary protection in the EU for those fleeing the invasion of Ukraine? Today the EU Commission simultaneously proposed to extend that protection for a fifth year, while suggesting a coordinated process of winding it down. This blog post will examine the legal issues arising from these proposals.  

Background

The EU’s temporary protection Directive (which applies to all Member States except Denmark) was adopted back in 2001, and has not been amended since. It languished obscurely until 2022, when it was quickly activated when Ukrainians (and others residing in Ukraine) fled that country in the millions following the full-scale Russian invasion. This took the form of a Council decision (adopted by Member States’ ministers) applying temporary protection from 4 March 2022 for specified groups of people (Ukrainians, those with protection status in Ukraine, and their family members), and a more nuanced form of protection for non-Ukrainians who had permanent residence status in Ukraine – if these groups had fled on or after 22 February 2022 as a result of the invasion.

Beneficiaries of temporary protection have a series of rights (residence, employment, welfare, education and housing). Although the 2001 Directive says that Member States shall take back a beneficiary of temporary protection on their territory who remains on, or seeks to enter, another Member State without authorisation, Member States agreed to waive that rule when adopting the 2022 Decision, with a view to giving people a choice where to obtain temporary protection. (For further detail on the 2022 Decision, see my Q and A).

Temporary protection lasts initially for one year, and then extends automatically for two six-month periods. The Council can extend it by a further year, and it did so by means of a decision in 2023, setting an expiry date of 4 March 2025. While some interpreted the 2001 Directive to mean that there is a three-year maximum period of temporary protection, the Council interpreted it differently, adopting a further decision in 2024 to set a new expiry date of 4 March 2026. (On the legal argument against this, see here).

Also, the CJEU has begun to develop a body of case law on temporary protection. In Kaduna (discussed here), the Court ruled that if Member States exercised the option to extend temporary protection to other groups of people fleeing the invasion, they had discretion on when to end that status. And in Krasiliva (discussed here), the Court ruled that an application for temporary protection could not be treated as inadmissible purely because the person concerned had already applied for temporary protection in another Member State. This judgment did not fully address the question of what happened when a person who was already a beneficiary of temporary protection in one Member State sought such status in a second Member State, although the Court stated that it was open to Member States to verify whether an applicant for temporary protection was already a beneficiary elsewhere in the EU.

To date, the Court of Justice has been asked two further questions about temporary protection. In Framholm, the question is whether a Member State may reject applications for subsidiary protection as inadmissible, if they are made by temporary protection beneficiaries. (The CJEU has decided to fast-track this case). And in Jilin, the Court has been asked whether applications for asylum can be suspended for as long as temporary protection is in force.

Today’s proposals

Today’s proposal for another decision would, if adopted by the Council, extend temporary protection by a further year, to 4 March 2027. But this time, it is accompanied by a proposed Council Recommendation on a coordinated transition to end temporary protection for those fleeing the invasion of Ukraine. There is also a communication on the issue. I’ll discuss the proposed decision and proposed recommendation in turn, and then the issue of the end date of temporary protection.  

Proposed decision

The proposed decision would need support from a qualified majority of Member States’ ministers. Previous decisions have garnered unanimous support, and as there have been discussions on the issue at EU level over the last few months, the Commission has likely ascertained that there is sufficient support in the Council for this proposal (and for the proposed recommendation). But it is possible that the Council could adopt the decision (and/or the recommendation) with some amendments. The European Parliament has no formal role in adopting either measure. In any event, as with previous decisions, the Council will probably make its mind up fairly quickly. There’s no reason why the proposed decision and recommendation need to be adopted simultaneously, in the event that it’s easier to agree on one of them before the other one.

(Update: the Council agreed in principle to the proposed decision on June 13 2025)

The main part of the proposed decision simply extends temporary protection for a further year, without altering its scope (ie cutting out some categories of beneficiaries, or conversely adding some). However, the preamble to the proposal refers to the possibility of ending temporary protection earlier, as set out in the 2001 Directive (by a qualified majority vote in Council, on a proposal from the Commission), ‘in the event of a sustainable ceasefire’ – while also reiterating ‘its commitment to providing support to Ukraine and its people as long as it takes’. As the explanatory memorandum points out, the Directive sets out a rule governing early termination of temporary protection. According to the Directive, a decision on early termination:

shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States' obligations regarding non-refoulement. 

Moreover, the explanatory memorandum to this proposal suggests a possible curtailment of scope of temporary protection in future, even before its full termination:

…Member States acknowledged that the current volatile situation does not allow for a change of the scope of application of temporary protection. However, should a situation be conducive in the future, and with a view to ensure consistency with a gradual and coordinated transition out of temporary protection, further discussions would be held on the scope of temporary protection.

According to the preamble, the rationale for the proposal is that there is a stable population of over 4 million temporary protection beneficiaries in the EU, but ‘[t]he situation in Ukraine does not allow for the majority of displaced people’s return to Ukraine in safe and durable conditions’. Furthermore, there was a risk of escalation of the conflict, and Member States’ asylum systems could not cope with the massive number of asylum applications that would follow if temporary protection were ended. (The explanatory memorandum notes that asylum applications from Ukrainians have been increasing, but are still modest) These rationales echo the reasons for establishing and extending temporary protection in the first place.

One point is new though. While the proposed decision does not suggest an end to Member States’ waiver of the ‘take back’ rule, it does state in the preamble that Member States ‘should’ reject an application for temporary protection where the applicant already has temporary protection in another Member State, referring to the Krasiliva judgment – although this appears to overstate what the Court said in that judgment (ie only that it was open to Member States to verify whether an applicant had beneficiary status in another Member State). Anyway, this obviously raises the question of how to enforce return to the Member State where the person concerned has temporary protection, in the absence of applying the ‘take back’ rule.

Proposed Recommendation

Unlike the proposed Decision, which would apply to Ireland due to its opt in to the main Directive, the proposed Recommendation would not necessarily apply to Ireland, unless it opted in to the proposal separately.

The proposed Recommendation has four main sections: staying in the EU; returning to Ukraine; information for beneficiaries; and coordination between Member States. I’ll focus on the first two sections, as they concern substantive immigration law issues.

On the first point (staying in the EU), the proposal states that Member States ‘should promote and facilitate’ access to national legal status allowing non-EU citizens to stay on grounds such as employment, self-employment, education, family ‘or other’ reasons (para 1).

The implication is that national law would not be amended, even though (according to the explanatory memorandum) the Commission is aware (and approving) of Member States which are establishing special regimes:

….At the same time, there might be others who do not fall under any of the existing national permits. There are some Member States that are creating so-called ‘omnibus’ permits that intend to provide the same permit to cover all those benefiting from temporary protection, irrespective of their individual circumstances, and having been resident in the host Member State at least for a certain period of time. These national statuses could offer more stability than the annually prolonged temporary protection.  

Also, Member States ‘should allow’ temporary protection beneficiaries to apply for status under EU law on legal migration, referring to the Blue Card Directive (discussed here), the students and researchers Directive (discussed here), and the single permit Directive (discussed here) (para 2), as long as ‘they would not concurrently hold [temporary protection] status with an authorisation granted under those Directives’. (nb: although Ireland is covered by the temporary protection Directive, it has not opted in to any of these measures). Member States should inform people that they cannot hold both forms of status, and what the differences are between status under the other Directives and status as a temporary protection beneficiary.   

On the second point (leaving the EU), the proposal states first that Member States ‘should allow’ exploratory visits to Ukraine, referring to the 2001 Directive – which states only that ‘Member States may provide for exploratory visits’ (para 3). Such visits should be ‘self-funded’, although Member States ‘should consider’ organising and funding them if the temporary beneficiaries cannot.

Next, Member States ‘should’ take a number of measures to facilitate ‘voluntary return’ (para 4), again referring to the 2001 Directive, which provides that:

1. The Member States shall take the measures necessary to make possible the voluntary return of persons enjoying temporary protection or whose temporary protection has ended. The Member States shall ensure that the provisions governing voluntary return of persons enjoying temporary protection facilitate their return with respect for human dignity.

The Member State shall ensure that the decision of those persons to return is taken in full knowledge of the facts…. 

However, unlike the Directive, which refers to voluntary return either during temporary protection or after it ends, the proposed Recommendation refers only to voluntary return programmes ‘to be used once temporary protection has ended’. According to the explanatory memorandum, these would not be voluntary return programmes ‘under the Return Directive, as the persons concerned legally reside in the host Member State until the end of temporary protection and as no return decision is therefore required.’ The proposal suggests a one-year deadline to take advantage of such programmes once temporary protection has ended, although this would be flexible if that were insufficient time.

Also, Member States ‘should’ use the possibility to retain temporary protection rights for those covered by a voluntary return programme, again referring to the Directive, which says:

At the end of the temporary protection, the Member States may provide for the obligations laid down in CHAPTER III to be extended individually to persons who have been covered by temporary protection and are benefiting from a voluntary return programme. The extension shall have effect until the date of return.

The proposed Recommendation differs from the final sentence, stating that the extension of rights would apply ‘until the date of return to Ukraine or until the end of the period for voluntary departure under the programme’ (emphasis added). Also, the explanatory memorandum kicks back against the individual extension of status, favouring collective extension on grounds of administrative simplicity:

To ease the administrative burden of individual case-by-case extensions, Member States should extend by default all the rights attached to temporary protection to those enrolled in the voluntary return programme….

Also, the explanatory memorandum also addresses the possibility of a gap between the end of temporary protection and the start of a voluntary return programme:

In addition, to ensure continuity and to avoid situations in which the persons who benefited from temporary protection would be illegally staying immediately after the end of temporary protection, Member States should ensure that persons who benefited from temporary protection can legally reside in the territory of the Member State in the period between the end of temporary protection and the timeframe in which those persons can enrol in the voluntary return programme.

The proposed Recommendation (para 5) next addresses the position of people who have ‘vulnerabilities’ other than those referred to in the Directive, which provides that:

1. The Member States shall take the necessary measures concerning the conditions of residence of persons who have enjoyed temporary protection and who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted. They shall not be expelled so long as that situation continues.

For those with other vulnerabilities, the proposal states that ‘Member States should take the necessary measures concerning the conditions of residence’ for them, ‘[w]ith due respect for human dignity’, if they do not meet ‘the requirements to access other statuses’ and ‘until it is possible for Ukraine to provide for the special needs of such persons’; ‘[w]here relevant, Member States should ensure that the conditions of residence take into account their special needs.’ The Commission does not indicate who the groups with non-health vulnerabilities are, but I expect they are thinking of (inter alia) children who were in care homes.

Finally on this point, the proposal refers to the Directive as regards the position of children in education (para 6), where the Directive provides that:

2. The Member States may allow families whose children are minors and attend school in a Member State to benefit from residence conditions allowing the children concerned to complete the current school period.

According to the proposal, Member States ‘should’ use this provision where a Council decision to terminate temporary protection early ‘is not aligned with the end of the school year’. This is peculiar wording because, if temporary protection ends as planned on March 4 2027 (ie not terminated early), that is also likely to fall in the middle of the school year for most pupils.

End date of temporary protection

Today’s proposal would extend temporary protection for a fifth year, in conjunction with the proposed recommendation, which aims to set out a framework for ending it. But does it necessarily follow that temporary protection will end after five years?

In fact, none of today’s documents says that. Nor do they set out any other specific date for ending temporary protection. Instead, the proposed Recommendation says in the preamble:

….It is therefore necessary to prepare the way towards a gradual, sustainable and well-coordinated transition out of that status for the time when the conditions in Ukraine are conducive to allow temporary protection to end, while taking into account the capacity and reconstruction needs of Ukraine.

Similarly, the communication says,

…. temporary protection is by nature temporary. At some future point in time, when the circumstances allow for sufficient certainty about the situation in Ukraine, and in particular the conclusion that safe and durable conditions for return exist, the temporary protection framework will no longer be necessary. Member States should be ready for this change when that time comes.

 

Comments

First of all, it’s remarkable that despite the context of setting out an ‘exit strategy’ for temporary protection, five years might not be the limit. Although it would need another Commission proposal and Council decision to extend temporary protection again (and again?), those institutions have been willing to do this before. The obvious legal limit would have been the (previously) orthodox interpretation that the temporary protection Directive could only be applied for a maximum of three years; but with a bit of legal alchemy, the EU has cruised past that date already. Presumably the word ‘temporary’ in the legislation and the legal base must entail some concrete limit, but at least the Commission is wary of committing itself to a fixed date.

So despite the title of the Commission’s communication – ‘A predictable and common European way forward for Ukrainians in the EU’ – the future is not that predictable as regards this fundamental issue. Moreover, it is not very common either.

The most obvious route to a common policy would have been to propose some form of harmonised EU-wide post-temporary protection status. But the Commission does not propose this, even in the form of soft law, or even as one option among others – restricting itself to mentioning that some Member States are taking that route.

Instead, the Commission opts for suggesting a vague menu of options, moreover in a non-binding form. And even then, there are some important gaps.

First of all, the proposed recommendation says nothing about the relationship between temporary protection and asylum. (It says nothing about national forms of protection either) Perhaps this is because the CJEU will be ruling on this issue in the near future, or perhaps because the Commission wants to avoid discussing the asylum route, in light of the concern about overburdening asylum systems. But this could have been an opportunity to reduce potential pressure on asylum systems, for example by proposing to amend the law to clarify that the processing of asylum applications can be suspended for the entire period of temporary protection. The CJEU might agree that this is the correct interpretation of the existing law anyway; but it might not. And in the meantime, sending out the signal that the temporary protection system is due to end might prompt more people to make asylum applications, in a context when application numbers have been rising already.  

As for transition to legal migration, the reluctance to recommend changes to national law or EU law limits the effectiveness of the proposal. It’s striking that there’s only a reference to national law as regards family reunion, perhaps because the EU’s family reunion Directive only applies where there’s an expectation of permanent residence for the sponsor. But it could be amended to create a special set of rules for ex-temporary protection cases; it already includes a special set of rules for family reunion for refugees.

It’s similarly striking that there’s no reference to long-term residence under EU or national law. The EU law on long-term residence (providing for long-term status after five years of legal residence, in principle) excludes temporary protection from its scope, but it’s not clear whether or how to count the time spent as a temporary protection beneficiary if a former beneficiary then obtains status on some other basis. Given that the EU temporary protection regime seems set to last five years (at least), this could become a live issue the moment that a former beneficiary obtains another legal status after that point. It will anyway become an issue from March 2027 for those who have obtained another legal status in the meantime.

Finally, as for the three measures where the Commission proposes that Member States allow an application from a temporary protection beneficiary to be covered by an EU law status, each of them has an exclusion for temporary protection too. The Commission avoids mentioning this; arguably it seems to believe that this merely prevents someone from concurrently holding temporary protection status and a legal migration status under the other Directives, but this is not necessarily a correct interpretation. A proposal to amend the legislation could have provided legal certainty on the point.

There’s a Scottish saying – “you’ll have had your tea” – intended to convey the limits to the hospitality being offered in a nominally (but barely) polite way. Today’s proposals echo this (usually satirical) Caledonian vibe. Temporary protection isn’t ending just yet, and is even being extended; but it will end as soon as possible, even if we can’t say when right now. The proposals to apply immigration law for those who might stay carefully avoid longer-term residence; and there is rather more enthusiasm to discuss how people might leave – including a potential limit on how long any extra transitional period might last. The provision in the 2001 Directive on giving ‘favourable consideration’ to requests to return to the host State from those who have exercised the possibility of voluntary return is missing in (in)action. This is passive-aggressiveness in legal form.  

Further reading -  ICMPD report on the end of temporary protection 

ECRE report on transitioning out of the directive

Analysis by Meltem Ineli Ciger, on the Odysseus blog