Misreading the Temporary Protection Directive? The CJEU sets the record straight on access to subsidiary protection in Framholm (C-195/25)

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University

 

Photo credit: Dietmar Rabich, Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219, CC BY-SA 4.0

Framholm (C-195/25), delivered on 20 November 2025, is the Court of Justice’s third ruling interpreting the Temporary Protection Directive (Council Directive 2001/55/EC, TPD) following Joined Cases C‑244/24 and C‑290/24 (Kaduna) (cf. analysis here), and Case C‑753/23 (Krasiliva) (cf. analysis here). The ruling provides further clarification of Articles 3, 17 and 19 of the TPD and, crucially, confirms that temporary protection does not exclude access to subsidiary protection, ie the type of international protection available for those who do not qualify for refugee status. It therefore marks an important step in aligning the TPD, an instrument drafted in 2001, with the contemporary Common European Asylum System (CEAS).

The reference for a preliminary ruling to the Court of Justice originated in Sweden, where several third-country nationals displaced from Ukraine were granted temporary protection and subsequently applied for subsidiary protection. For years, the Swedish Migration Agency (Migrationsverket) had maintained a practice of automatically rejecting subsidiary protection applications lodged by temporary protection beneficiaries, without any examination on the merits. It interpreted Swedish law as allowing temporary protection beneficiaries to apply only for refugee status and treated all subsidiary protection applications as per se inadmissible. Faced with this restrictive and legally questionable approach, the Göteborg Administrative Court for Immigration Matters asked the CJEU whether EU law really permits a Member State to deny access to subsidiary protection solely because the applicant already enjoys temporary protection. The Court’s answer is unequivocal: No.

1.    What is the case about?

 On 11 March 2025, the Göteborg Administrative Court for Immigration Matters referred questions to the CJEU concerning whether beneficiaries of temporary protection may apply for subsidiary protection under the Qualification Directive (or QD – which defines refugee and subsidiary protection status in the EU) and have that application examined on the merits. All applicants (a Nigerian national holding a permanent residence permit in Ukraine and his Ukrainian family members) had been displaced from Ukraine following the Russian invasion and were granted temporary protection in Sweden. When they applied for international protection, the Migration Agency rejected their refugee status applications but declared their subsidiary protection claims inadmissible solely because they already held temporary protection. No assessment of eligibility under Article 15 of the QD (ie the definition of subsidiary protection) was undertaken. The referring court rightly doubted whether such a blanket exclusion could be reconciled with the development of EU asylum law since 2001, which clearly conceptualises “international protection” as including both refugee status and subsidiary protection. (cf. The Judgment paras 28-37)

2.     The questions referred to and the Court’s short answers

The Göteborg Court referred four questions to the CJEU (OJ C/2025/2651, 19 May 2025), all centred on how temporary protection interacts with the CEAS:

1.    Do the QD and the Asylum Procedures Directive 2013/32/EU (APD) apply to international protection applications lodged by persons already benefiting from temporary protection under the TPD? Yes.

2.    a) Does the term “application for asylum” in Articles 17(1) and 19(2) of the TPD cover applications for both refugee status and subsidiary protection, and must such applications be examined under the QD and APD? Yes.
b) Does Article 3(1) of the TPD prevent Member States from recognising subsidiary protection for persons who are eligible for, or already enjoying, temporary protection? No.

3.    If Articles 17(1) and 19(2) of the TPD also cover the right to apply for subsidiary protection status under the QD, are those articles, in conjunction with Article 10(2) of APD, sufficiently clear and precise to have direct effect?  Yes, and kind of yes (the Court said the QD and APD provisions have direct effect, but did not say that the TPD provisions alone have direct effect)

4.    Is Swedish law, which allows temporary protection beneficiaries to apply only for refugee status (but not subsidiary protection), compatible with EU law? No.

3.    What are Articles 3, 17 and 19 of the TPD about?

Article 3(1) of the TPD makes clear that temporary protection does not prejudge refugee status under the Refugee Convention. It is not a derogation from the Refugee Convention, nor does the grant or expiry of temporary protection affect the substantive assessment of whether an applicant meets the refugee definition.  

Article 17 of the TPD guarantees that beneficiaries of temporary protection may lodge an asylum application at any time and provides that any applications still pending when temporary protection ends must be assessed and decided hereafter.

Article 19 of the TPD regulates the interaction between temporary protection and the asylum procedure: Article 19(1) allows Member States to decide that a person cannot simultaneously hold the status of “asylum seeker” and benefit from temporary protection while their asylum application is being examined. Whereas Article 19(2) ensures continuity of protection: if, after examining an asylum application, the authorities do not grant refugee status or another form of protection, the person must still be allowed to enjoy temporary protection for the rest of the designated duration. (Cf. for a detailed commentary on these articles Skordas’ chapter; Peers’ post; Ch. 5 of my book)

4.    The AG Opinion (which I fully agree with)

The Advocate General’s analysis is worth examining closely, not least because it is carefully constructed and has clear implications for how the TPD must be read today. His reasoning develops along five points.

First, AG interprets Article 17(1) TPD’s reference to an “application for asylum” as an application for international protection, encompassing both refugee status and subsidiary protection. Although the TPD predates the CEAS, it must now be read in light of Article 78(2) TFEU, which is a Treaty provision on asylum (AG Opinion, paras 49-58). He adds “A restrictive understanding of the term ‘asylum’ in Article 17(1) of Directive 2001/55 would fail to take into account the context in which that directive applies following the entry into force of the FEU Treaty, as well as the objectives and scope of the legislation concerning ‘international protection’ which has been adopted in the intervening period.”  (para 50)  

Secondly, the AG stresses that temporary protection does not suspend or exclude access to subsidiary protection. Beneficiaries of temporary protection may lodge applications for refugee or subsidiary protection “at any time,” and the TPD operates as a complement, not an alternative, to the individual assessment required under the Qualification Directive (AG Opinion, paras 43-45, 51-52, 59-61, 66).

Thirdly, he confirms that being a temporary protection beneficiary is not a lawful ground of inadmissibility or exclusion. The exhaustive lists in Articles 12 and 17 of the QD (on grounds for excluding people from refugee or subsidiary protection status) and Article 33(2) APD (grounds for inadmissibility of asylum applications) do not include temporary protection, and national authorities cannot refuse subsidiary protection applications on that basis (AG Opinion, paras 70-72, 78-81).

Fourthly, he accepts that Member States may postpone examination of international protection applications in mass influx situations but makes clear that this administrative flexibility cannot justify a blanket inadmissibility rule for all subsidiary protection applications lodged by temporary protection beneficiaries (AG Opinion, paras 73-80, especially 7-78, 86).

Finally, he concludes that Article 17(1) TPD (not Article 19), read together with the overall CEAS architecture, confers a sufficiently clear and directly effective right to lodge an application for international protection.  

5.    What did the Court say?

The Court’s reasoning proceeds in three clear steps.

First, the Court explains that nothing in Articles 3, 17 or 19 TPD authorises Member States to refuse to examine a subsidiary protection claim simply because the applicant enjoys temporary protection (paras 45-46). Article 19(2) even anticipates the existence of “other kinds of protection,” which must be read today as encompassing subsidiary protection (para 46). The omission of subsidiary protection in the TPD text reflects only the fact that this status did not yet exist in EU law, a point that AG raised. (paras 46-47).

Secondly, the Court turns to the purpose and logic of the TPD. Temporary protection is designed to ensure immediate, time-limited protection while preserving the “effective possibility” of receiving international protection (paras 47–49). Here the Court explicitly follows its reasoning in Joined Cases C‑244/24 and C‑290/24 (Kaduna), where it held that “the purpose of the temporary protection mechanism is, inter alia, to maintain the efficient operation of the international protection system in the Member States” and that the TPD “safeguards, in particular, the effective possibility for third-country nationals and stateless persons benefiting from temporary protection" of obtaining international protection following an appropriate examination of their individual situation” (Kaduna, paras 125 and 127). A national rule excluding subsidiary protection applications as such would therefore contradict the very objective of the TPD (paras 49–50).

Thirdly, and most decisively, the Court relies on the architecture of the CEAS. It emphasises that the QD establishes two forms of international protection – namely, refugee status and subsidiary protection – and that Member States must grant whichever status an applicant qualifies for (paras 51–54). Member States have no discretion to refuse subsidiary protection except on the exclusion grounds exhaustively listed in the Qualification Directive (para 54). The Asylum Procedures Directive reinforces this: an application may be declared inadmissible only on the five grounds set out in Article 33(2) APD, which must be interpreted strictly (paras 58–60). Temporary protection is not among these grounds; national authorities, therefore, cannot reject a subsidiary protection application solely because the applicant enjoys temporary protection (para 61).

Finally, the Court addresses the direct-effect question. The Swedish court had essentially asked whether Articles 17(1) and 19(2) of the TPD, if interpreted as including the right to apply for subsidiary protection, are sufficiently clear and precise, read together with Article 10(2) of the APD, to have direct effect. The CJEU reformulates the issue. Rather than grounding the direct effect in the TPD itself, the Court bases it on two CEAS provisions: Article 18 of the QD, which imposes an unconditional duty to grant subsidiary protection when criteria are met, and Article 33 of the APD, which exhaustively lists the admissibility grounds (paras 71-72). These provisions are both unconditional and sufficiently precise, and thus confer directly effective rights. The consequence is clear: if a national rule conflicts with these obligations and cannot be interpreted in conformity with EU law, domestic courts must disapply the national provision (para 73).

That said, the Court’s approach leaves an important ambiguity unresolved. The referring court had explicitly asked whether Articles 17(1) and 19(2) of the TPD, read together with Article 10(2) APD (which governs the relationship between refugee and subsidiary protection status applications), were sufficiently clear and precise to have direct effect. Instead of answering that question squarely, the Court effectively sidesteps it by grounding direct effect not in the TPD at all, but in Article 18 QD and Article 33 APD. Put simply, the judgment does not tell us whether Articles 17(1) and 19(2) of the TPD are capable of producing direct effect. 

6.    My analysis

The AG’s Opinion and the Court’s judgment reach the same legal outcome, but they do so through markedly different interpretative routes. The Advocate General adopts a more TPD-centred approach, grounding his analysis in Articles 3, 17 and 19 of the TPD and then interpreting these provisions in light of later CEAS instruments. He reads “asylum application” in Article 17 as an application for international protection covering both refugee status and subsidiary protection, emphasises that temporary protection cannot suspend or exclude access to subsidiary protection, and rejects temporary protection as a lawful ground of inadmissibility because it does not appear in the exhaustive list in Article 33(2) of the APD. Although he accepts that Member States may postpone international protection application examinations in mass influx situations, he stresses that a blanket ban on subsidiary protection applications is incompatible with the TPD and the CEAS.

By contrast, the Court relies primarily on the Qualification Directive and the Asylum Procedures Directive, using the CEAS instruments themselves as the main foundation for each key step. It interprets “asylum application” in light of the QD and APD definitions of international protection, derives the duty to grant protection from Article 18 of the QD and the obligation to examine claims (and the limits on inadmissibility) from Articles 10(2) and 33 APD, and treats Article 33(2) of the APD as an exhaustive rule that excludes any TP-based inadmissibility ground (paras 58-60). On the direct effect, the Court bases its analysis on Article 18 of the QD and Article 33 of the APD (paras 70-73), whereas the AG reaches the same conclusion via a combined reading of Article 17 of the TPD with the CEAS provisions.

Compared to the AG’s Opinion, which engages more directly with the wording, structure and logic of the TPD, the Court reaches essentially the same conclusions but grounds its reasoning far more firmly in the QD and APD. Put differently, while the AG reads the TPD through the lens of the CEAS, the Court treats the CEAS instruments themselves as the primary legal basis for explaining why Member States cannot refuse to examine (and, where appropriate, must grant) subsidiary protection to temporary protection beneficiaries.

I must admit that I prefer the AG’s TPD-centred approach: it is more faithful to the architecture of the TPD, and does not treat the TPD as a second-rate asylum instrument because it has never been updated to reflect two decades of CEAS development.

The outcome of the judgment is fully in line with what many of us working on the TPD have long expected. The TPD was never intended to operate as an obstacle to accessing international protection, whether refugee status or subsidiary protection. For over a decade, “international protection” in EU law has included both statuses, and nothing in the Directive suggested a closed or self-standing regime intended to override the CEAS.

The central logic of the TPD has always been pragmatic: to give Member States facing a mass influx breathing space by allowing them to suspend the processing (not lodging) of asylum claims where their systems would otherwise be overwhelmed. It was and never has been designed to bar access to subsidiary protection altogether. Member States with fewer temporary protection beneficiaries, or with sufficiently strong asylum systems, remain entirely free to process claims during temporary protection and examine the merits of their international protection applications.

Interpreting the TPD in the restrictive and literal manner adopted by the Swedish administration, treating “asylum” in the TPD as excluding subsidiary protection and ignoring the subsequent development of EU asylum law, was therefore misguided. It runs counter to the TPD’s objectives, its underlying logic, and the entire evolution of the CEAS. Most importantly, it results in a clear violation of the rights of temporary protection beneficiaries to access international protection.

This judgment matters well beyond Sweden. Even if Sweden appears to be the only Member State to have openly applied such a blanket rule, Framholm makes clear that no Member State may treat temporary protection alone as a ground for declaring subsidiary protection applications inadmissible. Across the EU, temporary protection can never justify a blanket refusal to examine the merits of a subsidiary protection claim.

7.    Conclusion

Framholm matters because it definitively closes the door on any national attempt to use temporary protection as a barrier to subsidiary protection. The judgment also exposes a broader structural problem: the Temporary Protection Directive, drafted in 2001, simply do not reflect the legal architecture of the CEAS in 2025. This is visible not only in Sweden’s misinterpretation but also in the Court’s need to rely so heavily on the QD and APD to reach a decision rather than the TPD’s own articles.

This brings me to a point that, as far as I am aware, no one else has explicitly raised: we know that the TPD remains useful and conceptually sound as a framework for managing mass influx situations, contrary to the Commission’s initial 2020 proposal to repeal it. Temporary protection works. It has proven its value during the Ukrainian displacement and remains a necessary instrument in the EU’s protection toolbox. Even today, 4.3 million non-EU citizens who fled Ukraine have temporary protection status in the EU. Moreover, the adoption of the Crisis and Force Majeure Regulation does not render the TPD unnecessary or obsolete: the two instruments, although they can be invoked in exceptional mass influx situations, operate on different logics. In my opinion, the Crisis and Force Majeure Regulation, which is based on derogations more than anything, cannot fully substitute for the protection mechanism established by the TPD.

Despite the usefulness of the ongoing relevance of the TPD, the judgment also implicitly makes clear that the TPD urgently requires updating. Many of the problematic national practices stem precisely from the fact, highlighted by the AG, that the TPD is an old instrument, never recast and never aligned with two decades of CEAS development. The result is predictable: legal ambiguities that should no longer exist, and litigation over issues that should be obvious.

I wish to conclude with a call to the EU institutions, above all, to the Commission. Once the current temporary protection regime for Ukrainians comes to an end, the Commission should initiate a targeted revision of the TPD, drawing directly on the lessons of its implementation during the mass displacement from Ukraine and the emerging body of CJEU case law, including Kaduna, Krasiliva and Framholm. An updated TPD can significantly narrow the scope for misinterpretation, perhaps introduce a new and clear time limit, align the instrument with the contemporary CEAS architecture, and prevent further unnecessary litigation on matters that ought already to be legally settled.