The Jilin Judgment (Case C‑249/25): Can Member States Suspend Asylum Procedures During Temporary Protection, and for How Long?

 

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

Photo credit: Maksym Kozlenko, via Wikimedia Commons

On 1 October 2026, the Court of Justice delivered Case C‑249/25 (Jilin), its fourth preliminary ruling on the Council Directive 2001/55/EC (Temporary Protection Directive, ‘TPD’) since the Directive was activated for people displaced from Ukraine. It follows Joined Cases C‑244/24 and C‑290/24 Kaduna (19 December 2024), Case C‑753/23 Krasiliva (27 February 2025) and Case C‑195/25 Framholm (20 November 2025), all discussed on this blog (here, here and here). The question in Jilin is: can a Member State suspend processing of applications for international protection of temporary protection beneficiaries until temporary protection ends? The Court’s answer is no, subject to an exception for cases of ‘objective impossibility’. This post summarises the judgment and then examines what the Court left undefined. It criticises the absence of any explicit reference to international refugee law as well as the requirements of necessity and proportionality in the Court’s assessment.

·         The facts and the questions referred

UB, a Chinese national of Uyghur origin, arrived in the Netherlands on 7 March 2022 with his Ukrainian wife and their child, and applied for asylum on 13 April 2022. During the examination, the Dutch authorities found that, as the family member of a Ukrainian national who had lived in Ukraine before 24 February 2022, he qualified for temporary protection. They therefore stopped examining his asylum claim, on the basis that it could resume once temporary protection expired (para 22). Article 43a of the Dutch Aliens Act 2000 allows this: for temporary protection beneficiaries, a decision on an asylum application may be taken at any time up to six months after temporary protection ends (para 19).

UB sent a formal notice of default in January 2024 and then brought an action for failure to act. The District Court of The Hague held that the 21‑month maximum time limit had started to run when the application was lodged, ordered the Minister to decide within eight weeks. On the Minister’s appeal, the Raad van State asked the Court of Justice two questions:

(1)   Does Article 17(2) of the TPD allow Member States to suspend the examination of an application for international protection made by a temporary protection beneficiary for the duration of temporary protection?

(2)   Do the time limits in Article 31 of the Directive 2013/32/EU (Asylum Procedures Directive, ‘APD’) start or resume running only when temporary protection ends, where the application was made before or during temporary protection?

Article 17(1) of the TPD provides that ‘[p]ersons enjoying temporary protection must be able to lodge an application for asylum at any time’; paragraph 2 adds that ‘[t]he examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period.’ Article 31 of the APD sets the timetable for the regular procedure. A decision must be taken within six months of the lodging of the application (Article 31(3)). That period may be extended by up to nine months where complex issues of fact or law arise, where a large number of people apply simultaneously, or where the delay is attributable to the applicant; in duly justified circumstances, it may be exceeded by a further three months. Where the situation in the country of origin is uncertain but expected to be temporary, the decision may be postponed, subject to six‑monthly reviews (Article 31(4)). ‘In any event’, the procedure must be concluded within 21 months of the lodging of the international protection application (Article 31(5) of the APD).

Under Article 4 of the TPD, temporary protection should have lasted no more than three years. In practice, the Council has repeatedly prolonged the regime for people displaced from Ukraine, most recently until 4 March 2028 (Council Implementing Decision (EU) 2026/1912). In doing so, it has turned an exceptional, time‑bound emergency response into an open‑ended EU policy (see here, here, here and here). On the Dutch reading, an asylum claim lodged in spring 2022 might not have to be decided until late 2028.

·         The judgment

The Court joined the two questions and reformulated them as whether Article 17(2) of the TPD and Article 31 of the APD preclude national authorities from ‘automatically suspending’ the examination of international protection applications lodged by temporary protection beneficiaries, so that the decision time limit does not begin or continue to run until temporary protection has ended (para 34). The Court said yes and noted that such an automatic suspension is unlawful, whilst clarifying that Member States may only temporarily defer individual examinations beyond statutory deadlines in exceptional circumstances where strictly necessary to address an objective impossibility and prevent system collapse (para 64). The judgment provides three reasons.

First, the Court held that Article 17(2) of the TPD only governs what happens to applications not processed before the end of the temporary protection period. It says nothing about whether MS can suspend asylum applications during temporary protection (para 38) (This is also in line with Skordas’ assessment here p. 1213). Temporary protection should not prejudge recognition of refugee status under the 1951 Convention (Article 3(1)); beneficiaries must be able to apply for asylum ‘at any time’ (Article 17(1)); and a person whose asylum application is rejected continues to enjoy temporary protection (Article 19(2)). The Court noted that the legislature, in light of all these provisions, therefore envisaged that asylum procedures would run during temporary protection (paras 39–41). The Court, in line with the AG opinion, reasoned that the Commission’s original proposal included an option to suspend asylum procedures during temporary protection, but Member States could not agree on it and dropped it. No such power can therefore be read into Article 17(2) by implication (paras 42–44, following points 42–45 of Advocate General Campos Sánchez‑Bordona’s Opinion).

Second, the Qualification Directive and the APD apply to all applications for international protection, and nothing excludes applicants who already enjoy temporary protection. Article 31 of the APD time limits therefore apply ‘in principle’ to them as well (paras 45–48). In the Court’s view, Article 31 already takes account of pressure on asylum systems: it allows an extension of up to nine months where large numbers apply simultaneously, a further three months in duly justified circumstances, and postponement for an uncertain situation in the country of origin, all within the 21‑month limit (paras 49–53).

Third, a general and automatic suspension is not necessary to achieve the Directive’s aims (para 54). The TPD is meant to protect asylum systems from being overwhelmed, but it is also meant to ensure that beneficiaries keep ‘a real opportunity to obtain international protection’ once their situation has been examined (para 56). An EU‑wide activation of temporary protection does not mean that every Member State faces more applications than it can handle (para 58). When temporary protection expires, the authorities would face exactly the simultaneous surge of applications that temporary protection was supposed to prevent (para 59).

Having rejected automatic or a blanket suspension, the Court nonetheless recognised an exception. The Court noted it cannot be entirely excluded that a considerable number of applications lodged by temporary protection beneficiaries over a short period will make it ‘objectively impossible’ for a Member State to decide them all within the Article 31 time limits, ‘despite all the reasonably conceivable measures to deal with such an influx’ (para 60). In that case, the State may take measures such as examining applications in phases and setting priorities. This may lead it to defer the examination of some applications temporarily, even if not every application can then be decided within the Article 31 time limits (paras 61–62). National courts must check, in each case, that a missed deadline is not the product of a general and automatic suspension and results only from measures that are necessary to deal with the objective impossibility (para 63).  

·         Analysis

1. The tension of the judgment with the logic of temporary protection

The judgment sits uneasily with how temporary protection is usually understood. Under Article 2(a) TPD, the very purpose of immediate, group‑based protection is to avoid an asylum system being overwhelmed by a mass influx (para 35). In international practice, temporary protection has generally worked by suspending individual refugee status determination.

Jilin confirms that the EU took a different path in 2001. The Member States considered a suspension power and chose not to adopt one (para 42). What they kept instead was Article 19(1), which allows States to provide that a person cannot hold temporary protection and asylum‑seeker status at the same time. The result of the Jilin is that, in EU law, temporary protection can run alongside the asylum procedure. Whether that model can actually deliver on the aim stated in Article 2(a) is a fair question. The Court answers that Article 31 APD already provides the flexibility needed (para 53).

2. An exception that leaves much to explain

The difficulty is that the Court then created an exception that it barely defines. Four questions are left open. What counts as ‘objective impossibility’? The Court requires a ‘considerable number’ of applications ‘over a short period’ and the exhaustion of ‘all the reasonably conceivable measures’, but gives no threshold, no indicators and no burden of proof. Whether a State has hired enough staff, reallocated resources or used the accelerated procedures available to it will be argued case by case before national courts.

How does the exception fit with Article 31 itself? At para 53 the Court tells us that Article 31 already reflects the legislature’s ‘due consideration’ of pressure caused by simultaneous applications, which is why automatic suspension is unnecessary. However, paras 60–62 allow those same calibrated limits to be exceeded.  

Does it reach beyond 21 months? Article 31(5) of the APD requires the procedure to be concluded ‘in any event’ within 21 months. The operative part of the judgment allows deferral ‘including by exceeding that decision‑making period’, without saying whether the 21‑month limit is included. If it is, the Court has created a judge‑made derogation from a limit the legislature described as absolute.  

For how long, and for whom? Deferral must be ‘temporary’, and concern only ‘some’ applications, but the Court sets no outer limit and gives no criteria for prioritisation. Nothing in the judgment prevents a MS from prioritising other caseloads and leaving temporary protection beneficiaries at the back of the queue, which is the outcome Jilin was meant to prevent.

The exception will also apply unevenly. Para 58 makes clear that the test is specific to each State. The relevant variable, however, is not how many temporary protection beneficiaries a Member State hosts but how many asylum applications they lodge in a short period (para 60). Can a MS hosting large numbers of Ukrainians who never apply for asylum not rely on the exception? Can only Germany, Poland or Czechia make use of this possibility? What about other MS hosting a smaller number of temporary protection beneficiaries? These are the questions, in my opinion, left open.

3. What is missing? The international refugee law dimension and the doctrine of derogation

The international refugee law is absent from the judgment. The TPD makes explicit reference to the 1951 Convention. Recital 10 states that temporary protection ‘should be compatible with the Member States’ international obligations as regards refugees’ and ‘must not prejudge the recognition of refugee status pursuant to the Geneva Convention’, and Article 3(1) repeats the point. All Member States are parties to the 1951 Convention and its 1967 Protocol; Article 78(1) of the TFEU requires the EU’s asylum policy to be in accordance with the 1951 Convention, and Article 18 of the Charter guarantees the right to asylum ‘with due respect for’ the Convention.

This matters because temporary protection, conceived as a short emergency response, now routinely becomes protracted. Temporary protection for people displaced from Ukraine will have lasted six years by March 2028. When protection is prolonged, suspending individual status determination can no longer be explained simply as managing an emergency. The 1951 Convention contains no general derogation clause (cf. Durieux and McAdam 2004).  One of the issues which deserved attention, in my opinion, was therefore whether a State Party to the 1951 Convention may, for years, deny people who may well be refugees access to the asylum procedure through which they can claim the Convention rights that build up with lawful and durable stay. However, one should frame such a departure from the Convention as a derogation, as a necessity under general international law or by analogy with human rights derogation clauses; any derogation must be necessary, proportionate and temporary (see, for a fuller analysis, section 2 of this article). International refugee law scholarship has examined this question in depth (cf. Edwards 2012; Durieux 2014). I argued that a genuine mass influx may justify temporarily setting aside individual procedures. It is far less clear that a suspension lasting several years can meet the requirements of necessity and proportionality under international or EU law.

The Court did not engage with any of this. Its analysis stays within the relationship between the TPD and the APD. It never addressed or took into account whether deferring asylum procedures for up to six years is compatible with the 1951 Convention, even though Recital 10 and Article 3(1) of the TPD point straight to that question. It is worth mentioning the Advocate General’s Opinion (paras 60-65), in which he relied on Article 18 and on Article 52(1) of the Charter; he came close to taking these issues into account. Ironically, the outcome of Jilin is broadly what an international law analysis would support: no automatic, open‑ended suspension. But because the Court reached it through EU asylum acquis alone, it left the exception in paras 60–63 without an explicit necessity and proportionality framework that international law would have supplied.

Conclusion

Jilin is quite a vague judgment that leaves much to be discussed, especially given the new exception it introduces to the ban on general suspension of asylum procedures. Although the Court relied on objective impossibility as a ground, it does not make clear when Member States may continue to defer the processing of international protection claims lodged by temporary protection beneficiaries.

Jilin is the CJEU’s fourth preliminary ruling on the TPD, and it repeats a pattern visible in the earlier three. The Court reads the Directive carefully on its own terms and contrasts it with another instrument of the EU acquis but engages little with the international origins of temporary protection, its relationship with the 1951 Convention and leaves unresolved the basic tension between prolonged temporary protection and Member States’ obligations under the 1951 Convention.  

The judgment will matter well beyond UB’s case. Since 12 June 2026, applications lodged after that date are governed by the Asylum Procedures Regulation (Article 35 of Regulation (EU) 2024/1348), which shortens the extension for large numbers of simultaneous applications to six months, though it does not impact the backstop 21-month time limit. Jilin’s reasoning, that the general asylum time limits apply to temporary protection beneficiaries unless the legislature provides otherwise, is likely to carry over to the new regime. The exception created by the judgment may become even more attractive to States as a result. As the Court itself warned (para 59), Member States that suspended asylum claims face the prospect of a surge of pending decisions when temporary protection ends in March 2028. Jilin requires them, to a certain albeit vague extent, to start deciding on those claims now.

New book: Disaster Displacement and International Protection in the EU

 

 

Dr. Chiara Scissa, Department of Social and Political Sciences, University of Bologna

Photo: 2026 forest fires in Fontainebleu, by Jdkxhdjj, via Wikimedia Commons

 

New book: Disaster Displacement and International Protection in the EU. Challenges, Misconceptions, and the Way Forward (Routledge, 2026)

 

Disasters trigger over three times more displacements than conflict and violence and rank among the principal drivers of displacement worldwide. Whereas other world’s regions have reached significant achievements – including Africa with the IGAD Protocol on Free Movement of Persons recognizing free movement for IGAD citizens affected by disasters, Latin America with the 2025 Inter-American Court on Human Rights’ Advisory Opinion acknowledging the applicability of international protection in disaster contexts, and the Pacific with relevant regional and bilateral initiatives on climate mobility -, this is not the case for the European Union (EU). The EU lags behind with no common protection avenue for people displaced across borders in the context of disasters, and with only three Member States - Italy, Cyprus, and Finland – that currently offer an explicit provision to that effect.

In this book, I interrogate the asymmetry between the magnitude of the phenomenon and the poverty of the legal response in the EU, and argue that the protection gap is not attributable to a lacuna in positive law, but to the defective application and interpretation of norms already in force and restrictive asylum policies. The right path to follow would, in my opinion, not lie in the codification of a new status for the so-called “climate refugees”, a category I do not endorse, but the principled, evolutive application and interpretation of existing norms that already bind the Union and its Member States.

Central to the book is the identification of three compounding challenges that have so far contributed to hindering the recognition of protection in the context of disaster displacement in the EU: 1) the misconceptualization of disasters in legal and policy instruments; the rigid application and (sometimes controversial) interpretation of international protection norms; and 3) the deterrence paradigm increasingly endorsed by the EU and its Member States to curb access to asylum.

The first challenge: Misconceptualization of disasters.

A first major challenge, which is persistently present in relevant legal and operational EU disaster frameworks from the very outset to the latest developments in this area, concerns the reference to “natural disasters” as part of the definition. This formulation does not only contradict scientific evidence and established scholarly work in the field of disaster studies, according to which disasters are the product of hazards in combination with the social environment in which they unfold, but also undermines asylum claims based on, or associated with, disaster displacement. Indeed, where a disaster is perceived as something purely natural, and hence beyond human control, it risks creating a fictitious separation between situations attributable to human actions and those perceived as naturally occurring. Seen as the manifestations of the uncontrollable forces of nature, disasters can therefore hardly fall within the net of protection. Likewise, the attribution of State’s responsibility in disaster contexts, and the related failure to protect, is hardly explored.

The second challenge: Misinterpretation of refugee law tenets.

Closely related to the misconceptualization of disasters is the second identified challenge, namely the issue of rigid, and sometimes controversial, application and interpretation of international protection norms in the context of disaster displacement. From a careful and in-depth literature review and case law analysis, available in Chapter 2, what stems is that disaster-related asylum claims have been often, and hastily, dismissed. Respectively, refugee status is denied in this context on some recurring grounds: disasters do not amount to persecution; they disclose no nexus to a Convention ground; they do not discriminate and produce no individual harm; they cannot constitute actors of persecution; and have no intention to persecute. These propositions recur in the Commission’s own documents (2013; 2022) and in the jurisprudence of the Member States. As for subsidiary protection, this is frequently set aside due to the fact that the harm stemming from disasters is not explicitly listed among the components of serious harm pursuant to Article 15 of the Qualification Directive (now Qualification Regulation). In addition, the requirement for serious harm to stem from an intentional act or omission, which was first coined by the EU Court of Justice in M’Bodj (2014) but has no place either in EU asylum law or in the 1951 Refugee Convention, has already led national asylum judges to dismiss subsidiary protection claims. In Italy and France, for example, the combination of misconceptions surrounding the notion of disasters and challenges in applying a principled interpretation of serious harm led national courts to swiftly dismiss disaster displacement-related claims, reserving short paragraphs or even just one sentence of their judicial analysis to explain the exclusion of disaster displacement from subsidiary protection.

Finally, the book looks at the internal protection alternative (IPA) for people displaced in the context of disasters as a further protection tenet subject to fragmented and inconsistent practices among the Member States. In Austria, the relevance of disasters in the IPA assessment seems to depend on the claimant’s country of origin and the judge adjudicating the case instead of the severity of the disaster and its human rights implications on the applicant. In Nordic countries, disasters seem to have almost never been taken into account by competent authorities in the context of an IPA assessment. Hence, disasters’ integration into the IPA assessment is far from being standardized in the EU, which means that the decision on the availability of internal relocation in the claimant’s country of origin is a bit of a lottery with severe repercussions on asylum seekers coming from disaster-prone countries.

The third challenge: the logic of deterrence.

Before actually writing the book, in that phase where concepts and words are chaotically appearing on paper together with some random arrows in the attempt to make sense of everything, I realized that the first two challenges identified showed why disaster displacement is hardly recognized as a legitimate ground for protection. But that was the last stage of a complicated and often incomplete process. Actually, for people displaced in the context of disasters, it is extremely hard to even reach and get the chance to stay in the territory of the EU Member States to seek protection. This is because disasters themselves can hinder people’s arrival at destination. This is the case of thousands of migrants crossing the Mediterranean Sea in the attempt to reach Italy, who have drowned because of extreme weather events, including storms and cyclones. Likewise, asylum seekers attempting to reach the EU through the Balkan route are exposed to drowning in rivers as well as to freezing temperatures along the way and extreme cold weather deaths from hypothermia. In doing so, disasters can interact with deterrence policies preventing arrivals. Italy’s efforts to stop disembarkations in addition to disasters, which make the sea crossing perilous and relief operations unfea­sible, claimed the life of 380 people in January 2026.

At the same time, disasters can interact with deterrence policies aimed at curbing access to the asylum procedure.

The book presents emblematic examples of EU-led deterrence policies and how they interact with disasters following Gammeltoft-Hansen and Tan’s categorization. These include development cooperation, accelerated procedures based on the safe country notion, and externalization agreements. All these examples corroborate that deterrence makes it harder, if not totally unlikely, not only for disasters to be recognized, but even identified as a cause of displacement. On the contrary, deterrence policies are contributing to perpetuating its invisibility in asylum adjudication. Indeed, the result of ongoing, and progressively more restrictive, asylum pol­icies at the Union and national levels is the continued lack of attention toward disaster displacement in asylum adjudication, thus making their exclusion from protection a persistent issue.

Concluding remarks.

My aim with this book is twofold and only time will tell me if I somehow managed to get closer to it. On the one hand, I hope to make more students interested in this topic, which fascinates me and deserves further attention, especially from young and fresh minds. On the other hand, I sincerely hope this book will reach in one way or another policymakers and decisionmakers across the world, and especially in the EU, as all the described challenges have to do with decisions made at the political and judicial level. This book explains why the persistent use of the term “natural disaster” in legal texts should be definitely abandoned, describes the risks associated with superficial asylum adjudication, and warns against the alarming combination of disasters with deterrence policies for people seeking protection. May those entrusted with making, enforcing, and interpreting the law find meaningful insight within these pages - ever mindful that abstract policy carries concrete, and often indelible, consequences for human lives.

 

Download the open-access version here.

Purchase a hard copy here.