Stateless people and refugees fleeing Ukraine

 

Chris Nash, Director of the European Network on Statelessness*

*Reblogged from the Network website

As the number of refugees fleeing Ukraine nears two million, we and our members on the ground have been mobilising to try to get a handle on the particular protection needs of stateless people forcibly displaced by the crisis.

We know from past experience, including research under our Stateless Journeys initiative, that stateless people fleeing conflict typically face additional issues and challenges crossing borders and accessing protection. We also know that statelessness is both a cause and a consequence of forced displacement.

Upon hearing anecdotal reports of difficulties experienced by stateless people trying to escape the war in Ukraine, we wanted to better understand the situation as quickly as possible. This week we have published an initial briefing to help inform refugee response actors on the ground so that problems can hopefully be anticipated and addressed before they become entrenched.

Statelessness in Ukraine

The last census in Ukraine in 2001 recorded 82,550 stateless people, and UNHCR estimated there to be 35,875stateless and people with ‘undetermined nationality’ in 2021. Other sources suggest there could be many tens of thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank recently estimated there to be 999,000 people aged over 15 in Ukraine without a national ID card. Although not all of these individuals will be stateless, many will be at increased risk of becoming so if the crisis becomes more protracted.

It is estimated that 10-20% of Romani people in Ukraine lack the civil documentation needed to acquire or confirm their Ukrainian citizenship. Other profiles of stateless people include former citizens of the USSR who were unable to demonstrate permanent residence in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who have been unable to acquire any nationality, have since passed their statelessness on to their children. People living in non-Government controlled areas, Crimea, and those internally displaced in Ukraine have faced significant barriers to obtaining or renewing personal documents since 2014, leaving an estimated 60,000 children born in these areas without birth certificates and at risk of statelessness.

In addition to these significant in-situ stateless populations, there are asylum-seekers, refugees, and migrants (and their children) who were residing in Ukraine and were stateless before leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have since become stateless due to displacement, discrimination or gaps in nationality laws, State succession, or deprivation of nationality practices.

In May 2021, Ukraine introduced a statelessness determination procedure to determine who is stateless on its territory and grant protection to stateless people, but this only recently became operational, and by 31 December 2021 only 55 people had been granted a temporary residence permit through the procedure. The vast majority of stateless people living in Ukraine will lack any documentation proving that they are stateless. This not only poses insurmountable barriers for stateless people trying to move within Ukraine given current circumstances, but also significantly impacts on their ability to move to relative safety within the country, cross borders, and access protection.

Current situation at Ukraine’s Western borders

The initial response of Ukraine’s western neighbours has been generous, with both government actors and civil society doing their utmost to welcome and receive unprecedented numbers of refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated that they are currently admitting everyone fleeing the war in Ukraine, including stateless people, those at risk of statelessness and/or undocumented people. A brief summary of policies in each of these countries is available in our briefing.

However, the picture is fast-moving and there is a need for vigilant monitoring given emerging evidence of inconsistent practices and racial profiling at different border crossings (e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing the territory, or additional ‘secondary screening’ procedures, including in detention-like conditions in Poland.

Equally, early information from ENS members suggests that stateless people and those at risk of statelessness fleeing Ukraine are likely to face additional barriers and differential treatment depending on their residence, nationality, and/or documentation status. More time and further research are needed to understand the detailed picture in terms of how different profiles of stateless people are likely to be affected.

Application of the EU Temporary Protection Directive and protection owed to stateless people

A big question mark about the level of protection likely to be available to stateless refugees from Ukraine centres around how the EU Temporary Protection Directive (TPD) will be applied by different countries.

The Directive, invoked by EU Member States on March 4, grants immediate protection in the EU (other than Denmark) to Ukrainian nationals and those who had international protection in Ukraine prior to 24 February 2022. Stateless persons who can prove they held a permanent residence permit in Ukraine before 24 February and ‘cannot safely return to their country or region of origin’, are also entitled to temporary protection, but Member States can choose whether to apply the TPD or ‘adequate protection under national law’. Member States may also extend temporary protection to others, including stateless persons who were ‘residing legally’ in Ukraine. People granted temporary protection are entitled to a residence permit (initially for one year, extendable up to three years unless safe return is possible), access to the labour market, housing, social welfare, medical care, and access to education for children.

EU Member States are not currently required under EU law to extend temporary protection to most stateless people and those at risk of statelessness who are/were living in Ukraine. People without proof of permanent residence or international protection in Ukraine may need to apply for asylum or another form of protection according to the laws of their host country. This could pose serious issues in terms of their access to rights and services and their ability to obtain protection, if denied access to asylum procedures (e.g. as is the case in Hungary), or, for example, if Ukraine was disputed as their country of origin. So, even if able to escape Ukraine, stateless people are at particular risk of subsequently finding themselves excluded or left in limbo, and, in some cases, also at risk of arbitrary detention.

This in turn highlights the need for greater awareness of the rights owed to stateless people under international law. Almost all European States are Party to the 1954 Convention on the Status of Stateless Persons and so must afford specific rights and protections to stateless people on their territory. Some countries have established a statelessness determination procedure to determine who is due protection under the 1954 Convention and grant protection status or a residence permit to recognised stateless people (other than refugee status or another form of international protection). In other countries, stateless people may access another form of protection or regularise their stay through other routes. The situation in terms of access to protection for stateless people in countries across Europe is by no means uniform. Our Statelessness Index serves as a tool to help stateless people and their legal representatives to understand and advocate for their rights.

The way forward – addressing statelessness as part of the developing refugee response

Our briefing makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that stateless people from Ukraine can access protection in line with international law.

First and foremost, EU Member States should use their discretion under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness regardless of prior residence status in Ukraine, or at least ensure access to equivalent forms of protection under national law. Linked to this, it is critical that lack of identity documents or other documentation does not prevent stateless people and people at risk of statelessness from accessing international protection or other forms of protection under national law.

Where access to temporary protection is not available, European States should ensure routes to protection and rights for stateless people on their territory in line with their obligations under the 1954 Statelessness Convention, as well as implement safeguards to prevent arbitrary detention.

Critical to this, will be enhancing the ability of border officials and refugee response actors to properly identify statelessness and risk of statelessness among those displaced from Ukraine so as to ensure their access to protection, including legal advice and other services. There is an urgent need to improve the availability of disaggregated data, using standardised guidelines and assessment tools at registration points, in protection procedures, and during legal counselling.

Training will also be key, and here there is a role for several actors, including UNHCR, the EU Asylum Agency, and NGOs and civil society experts. The EU Asylum Agency recently published a Registration Tool that has a section on identifying statelessness, which could be useful in this context. We are also in the process of developing a more extensive statelessness identification tool, which we will make available to all actors in the next few months.

Finally, reports on the ground suggest an important need for refugee response actors to identify and monitor statelessness and risk of statelessness among unaccompanied and separated children, as well as children born in transit and host countries, to ensure their right to a birth certificate, legal identity, and nationality is guaranteed. This is likely to become even more acute if the conflict and related displacement becomes more protracted. UNICEF and other child rights organisations will have a key role to play in this regard.

Next steps and looking beyond the conflict

Over the coming weeks and months, we will continue to monitor the situation, as well as seek to update and expand the scope of information available, including to understand how the Temporary Protection Directive is being implemented for stateless refugees displaced further across Europe. We will also explore other ways to support our members working tirelessly on the ground, including by trying to engage the donor community to support their efforts and to fund targeted assistance for stateless people who otherwise find themselves excluded from Europe’s refugee response.

Equally, there is still a lot we do not know about the situation facing stateless people inside Ukraine. We know from our Ukrainian member organisations working bravely and tirelessly inside the country that stateless people without documentation are unable to move internally or across checkpoints, so find themselves trapped. There have also been disturbing reports of racial discrimination, antigypsyism, and/or differential treatment based on documentation status at Ukrainian borders, which may be preventing some stateless/people at risk of statelessness from leaving Ukraine. More research is needed to better understand and try to address this situation.

Finally, if we allow ourselves to try to be optimistic in looking beyond this unspeakably awful conflict, there will be a critical need to address legal identity, documentation, and nationality issues as part of re-building efforts. The current situation is a sobering reminder of how stateless people routinely suffer from being forgotten and their needs ignored, especially in times of conflict. We cannot allow this to happen, and we and our members stand ready to work with all actors to guard against this.

Photo: Mirek Pruchnicki, Creative Commons

A Last-Minute Postscript: the CJEU finally dares to find that the NHS is a provider of ‘comprehensive sickness insurance’

 

Dr Sylvia de Mars, Newcastle University*

* With many thanks to Prof Charlotte O’Brien for all the idea-swapping that preceded this blog post.

 

Background

Does the NHS provide ‘comprehensive sickness insurance’ (CSI) cover? It is a small question, but one that has had significant consequences for a wide range of EU nationals who resided in the UK between at least 2011 and today.

The background to the question is something I have written about for over a decade at this point (‘Economically Inactive EU Migrants and the NHS: Unreasonable Burdens without Real Links?’ (2014) 39(6) ELRev 770; ‘Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: an EU-Level Response?’ (2019) 25(4) European Public Law 709): economically inactive EU citizens, under the rules for residency set out in Article 7(1)(b) Directive 2004/38 (the ‘Citizenship Directive’, or ‘CD’), only have a right to reside for longer than three months in a different Member State if:

‘They have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.

A similar rule, set out in Article 7(1)(c), informs students that they must have comprehensive sickness insurance in order to live in a host Member State for more than 3 months—although it does not require the same for their family members.

What is comprehensive sickness insurance? Like many key EU law terms, it is a generic catch-all intended to encompass all sorts of ‘healthcare’ provision in all the Member States, and it is not further defined anywhere.  The CJEU’s case law, clarifying most aspects of unhelpfully general EU law, has never addressed the concept directly – and so it has fallen to national courts to interpret it instead.

The UK here faced a particular question: under national law, everyone ordinarily resident in the UK is entitled to use the NHS for free. ‘Ordinary residence’ does not have a specific meaning in legislation in the UK, but according to settled case law (Shah v London Borough of Barnet [1983] 1 All ER 226), effectively just refers to the country where someone lives for a ‘settled purpose’—and this can be forward-looking, in the sense that if you move to the UK with the intention of settling, you are also ordinarily resident. In practice, this means that any EU national who moves to the UK with the intention of staying for more than three months will be ‘ordinarily resident’ and will be entitled to access the NHS.

Here is where the legal problem that the CJEU only tackled in 2022 arises. In the UK, taking what is in essence a purposive approach to Directive 2004/38, the courts have long insisted that CSI cover cannot mean being permitted to access the NHS. Sullivan LJ’s comments in Kamau (Kenya) [2010] EWCA Civ 1302 are illustrative:

‘A person who has to rely on the United Kingdom's National Health Service is no more self-sufficient than a person whose resources are inadequate so that he may become a burden on the United Kingdom's social assistance system."

This was also Home Office policy from 2008 onwards: applicants for documentation concerning the right to reside in the UK under EU law consequently had to either be employed, or had to demonstrate they had some sort of ‘comprehensive sickness insurance’ in the UK. The problem these applicants faced was that there is no ‘comprehensive sickness insurance’ cover in the UK; private insurance generally only covers secondary care, and frequently can only apply once someone has already lived in the UK for over 12 months. An EU national student moving to the UK in 2010, in other words, could as a matter of practical fact not actually prove to the Home Office that they had EU rights to reside – although in practice, the Home Office started accepting unusable and only somewhat comprehensive private health insurance policies as ‘evidence’ of CSI.

EU nationals themselves very often did not actually encounter the sting in the tail of this policy for years, as they themselves were not required to hold documentation confirming they had a right to reside in the UK: their passport did that for them. However, there were two situations where EU nationals would have concrete reasons to prove their residency status:

If they had a family member from outside of the EU, whose residency rights were dependent on their own satisfying of Article 7 of the Citizenship Directive; or

If they wanted to apply for UK nationality after holding permanent residency for one year, where the Home Office also required them to demonstrate that they had comprehensive sickness insurance during any periods of time when they were not employed.

Our EU student who started living in the UK in 2010, as such, might not have found they did not hold the documentation the Home Office required them to until 2016 – and their new ‘counter’ for lawful residence under the Directive, as interpreted by the Home Office, would start in 2016, if and when they got private health insurance.

Did nobody ever complain about this policy?

Immigration practitioners have been furious about the Home Office interpretation of the rules for as long as they have existed, both because they are impossible to satisfy, and because there is nothing in Directive 2004/38 that actually precludes NHS coverage from being CSI. And they took their concerns to the Commission—who in April 2012 confirmed that they were taking infringement proceedings under Article 258 TFEU against the UK by sending them a reasoned opinion about their implementation of the Citizenship Directive…but never followed through on that reasoned opinion, let alone with a reference to the CJEU.

I have long had suspicions as to why. It is a matter of fact that the Commission does not have to enforce breaches of EU law, and the CJEU has ruled out the idea that its use of Article 258 TFEU could be judicially challenged if it was clearly politically motivated… as I suspect it was here. The idea that the NHS was a ‘free for all’ for newly arrived EU nationals would have been politically toxic in the UK, and the idea of pushing such a claim forward with a Member State with rising Euroscepticism would have undoubtedly brought exactly those types of ‘benefit tourism’ headlines out in the UK. And while the Commission hesitated, or paused, the UK voted to leave the European Union—at which point, other matters (like ensuring EU nationals in the UK retained their rights) became a much higher priority than stopping the Home Office from demanding economically inactive EU nationals demonstrate they have health insurance that doesn’t exist in the UK.

Fast-Forward to 2022: VI v HMRC

The EU has avoided ruling on what the NHS ‘is’ for a long time, and not only with respect to comprehensive sickness insurance. Only in 2022 did it finally take an opportunity to make an assessment of how the NHS, as a service, should be treated, although the preliminary reference sent by the Social Security Appeal Tribunal (NI) would have let it avoid commenting on the NHS as ‘comprehensive sickness insurance’ (eg, see paragraph 31: a question as to whether the Common Travel Area (CTA) provides reciprocal healthcare coverage as suggested in Ahmad can be answered without actually addressing what the NHS ‘is’.).

The case in which a definition of ‘CSI’ came to the fore is an odd one, not least of all because it is on the basis of the known facts actually a case in which CSI should not have figured at all. The case concerned VI, a Pakistani national, who lived in Northern Ireland with her husband (also Pakistani) and her four children. At least one of the children has Irish nationality on account of having been born in Northern Ireland in 2004.

The parties were agreed that VI had ‘sufficient resources’ and thus met that requirement of Article 7 CD, and they also agreed that between August 2006 and August 2014, VI and her entire family had comprehensive sickness insurance.  As that is a period longer than 5 years, the Irish national son was also agreed to have attained permanent residence (presumably by 2011).

However, HMRC found that VI was not entitled to receive Child Tax Credit or Child Benefit for the periods in which she requested it and in which she was not covered by comprehensive sickness insurance. This, in total, was approximately 3 months in 2006 and 1 month in 2014. HMRC also appears to have conceded that she does not have to repay the benefits she received in those months: it was their error, in that she did not misrepresent her status and was clear about when she did and did not hold ‘comprehensive sickness’ insurance.

Jurisdiction

Before it addressed the referred questions, the CJEU clarified its jurisdiction in the case: it could answer this preliminary reference request despite the fact that it was submitted on 7 April 2020.  First, Article 127 of the withdrawal agreement (WA) makes clear that during the so-called ‘transition period’, EU law would continue to operate in the UK as it did when it was a Member State; and secondly, Article 86(2) WA made clear that the CJEU would retain the jurisdiction to answer preliminary references submitted before the end of the transition period. This was not contentious – but probably worth stressing all the same, given the timing of the ruling.

Referred Questions

The Social Security Appeal Tribunal (NI) sent three questions to the CJEU.

First, it was asked if permanently resident children have to maintain CSI in order to maintain a right to reside. The CJEU was quick on this, pointing out that Article 16(1) CD makes clear that the conditions in Article 7 do not apply to EU national who has permanent residence [54]; and Article 16(2) CD and Article 21 TFEU as interpreted by the CJEU extends the same to ‘family members’ of EU nationals [56], even where they are not ‘dependent family members’ in the ascending line [57-58]. From 2011 onwards, in other words, neither VI nor her son would have needed comprehensive sickness insurance in order to maintain their right to reside in Northern Ireland.

The second question referred asked if the CSI requirement actually applied to a child covered by Article 7 CD, and their third country parent that is taking care of them. The CJEU here indicates that non-English versions of the Directive make it clear that the requirement for comprehensive sickness insurance applies to both the EU national and their family members, as defined by the Directive and by CJEU case law on parents who are caretakers for their EU national children [such as Chen]. That requirement, per the Directive, is there for the entirety of the 5 year residence period prior to an EU national attaining permanent residence—and the CJEU makes it clear that it does not matter if the CSI is held by the child, covering the parent, or held by the parent, and covering the child [67].

Here is where the CJEU, without being expressly prompted, comments on the NHS:

68      In the present case, it is apparent from the documents before the Court that VI and her son were affiliated during the period in question, namely from 1 May 2006 to 20 August 2006, to the United Kingdom’s public sickness insurance system offered free of charge by the National Health Service.

69      In that regard, it must be recalled that, although the host Member State may, subject to compliance with the principle of proportionality, make affiliation to its public sickness insurance system of an economically inactive Union citizen, residing in its territory on the basis of Article 7(1)(b) of Directive 2004/38, subject to conditions intended to ensure that that citizen does not become an unreasonable burden on the public finances of that Member State, such as the conclusion or maintaining, by that citizen, of comprehensive private sickness insurance enabling the reimbursement to that Member State of the health expenses it has incurred for that citizen’s benefit, or the payment, by that citizen, of a contribution to that Member State’s public sickness insurance system (judgment of 15 July 2021, A (Public health care), C‑535/19, EU:C:2021:595, paragraph 59), the fact remains that, once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).

70      Furthermore, in a situation, such as that in the main proceedings, in which the economically inactive Union citizen at issue is a child, one of whose parents, a third-country national, has worked and was subject to tax in the host State during the period at issue, it would be disproportionate to deny that child and the parent who is his or her primary carer a right of residence, under Article 7(1)(b) of Directive 2004/38, on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of that State. It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that State.

The CJEU then rules out that VI and her son find themselves in a Texeira situation, where EU nationals parents retain a right to reside after having been workers because their children are education—and confirms that as a consequence, VI and her son both needed to be covered by comprehensive sickness insurance.

Finally, the CJEU addresses a particular ‘twist’ on CSI cover that the UK courts have ruled on, which is that if the UK has reciprocal healthcare arrangements with a Member State, and so the UK can ‘reclaim’ healthcare costs from that Member State if one of its nationals uses the NHS, that satisfies the requirement for CSI. In practice, this UK means that anyone receiving treatment under the European Health Insurance Card (EHIC), intended to cover only temporary stays abroad, is deemed by the Home Office to have comprehensive sickness insurance. The CJEU declined to decide if the UK’s arrangements with Ireland under the Common Travel Area made for a ‘reciprocal arrangement’ that amounted to CSI, simply because the referred questions did not actually clarify what those arrangements were [73-74].

This, of course, would not matter greatly to the referring tribunal, because the CJEU’s interpretation of comprehensive sickness insurance is enough to decide VI’s case: if NHS cover is comprehensive sickness insurance, VI was entitled to Child Tax Credit and Child Benefit throughout her residence in the UK, regardless of whether she also held private insurance.

Comments

General

A first observation is that it is doubtful that VI is a case that actually should have produced a definition of CSI in relation to NHS entitlement. This is nothing to do with Brexit, but rather to do with the facts of the case itself. The point at which HMRC effectively conceded that they were not going to reclaim the benefits paid out, and the error was theirs, it is not clear what ‘dispute’ remained between VI and HMRC. The CJEU has interpreted the references as being primarily about VI’s ‘right to reside’ during the relevant periods where she did not have CSI (see, eg, para 29, where the CJEU notes that the parties disagree on VI’s entitlement to Child Tax Credit and Child Benefit – but rewords that into a question on the ‘subject matter’ of ‘VI’s right of residence in the UK’), but obviously the actual dispute between VI and HMRC was about the benefits she was given during those periods; a dispute about VI’s right to reside in the absence of the benefits, after all, would have been with the Home Office, not HMRC.

It thus looks like the case was constructed very carefully to avoid falling into the realm of ‘hypothetical’ rulings that the CJEU has consistently refused to consider because the dispute that resulted in the referred question had been resolved by the time of its ruling (Case C-225/02 García Blanco). Add to this the fact that the preliminary reference questions sent did not actually require the CJEU to offer an opinion on whether NHS entitlement equated to CSI, and we can only conclude that the CJEU was determined to make this case ‘work’ for it.

Having said that, there are a number of reasons to wonder if VI is actually going to mean anything for anyone—at least in the UK.

The highlighted passages in VI about CSI may have an impact in other Member States that operate ‘public health services’ like the NHS: to the best of my knowledge, these do not currently require economically inactive EU nationals to contribute in order to gain access, but the VI judgment clearly enables them to set up something akin to the Immigration Health Surcharge that the UK charges immigrants for economically inactive EU nationals. It reemphasizes the distinctions in terms of EU law-based rights and duties between those who ‘integrate’ and those who do not, as the CJEU has been doing ever since its Dano judgment—though it does also stress, in paragraph 70, that any requirement for ‘paying into’ a national health service has to be proportionate. In the VI case, VI’s husband was a full-time employee who paid taxes much as any employed UK national, so ‘double-charging’ would have been disproportionate. A family like VI’s clearly does fit the ‘integration’ demands the CJEU has recently placed on EU nationals who move to other Member States: in the CJEU’s own words, they do not form an unreasonable burden. Given the requirement for ‘proportionate’ charges to EU nationals for use of a public healthcare system, the impact in other Member States may be quite limited in practice; it is not immediately obvious that the cost of administering such a system is outweighed by the actual charges that would be recovered.

VI and Brexit?

But what of in the UK? As far as VI herself goes, apparently HMRC are not asking for the money back—so regardless of what the CJEU said, it appears that her dispute with HMRC is for all intents and purposes done. Her main victory here is that a court that the UK wanted rid of at all costs as part of the Brexit process has, in essence, told her she was right.

What is far less clear is what happens with this CJEU ruling in practice in the UK, where problems with demands for CSI have affected hundreds of thousands of EU nationals since at least 2011. If the UK were still an EU Member State, the follow-up is obvious: anyone whose application for permanent residency or—the far more costly—UK citizenship was rejected because of the absence of CSI when they were entitled to NHS care would have a cause for damages. The effects of a status being declined for some will have meant that they took out (also expensive) private insurance they could not use and waited six years—but for others will have meant separation from family members, insecurity in terms of access to benefits because they did not have permanent residency in the UK, and far greater expenses. These appear to be losses caused by what as of 10 March 2022 we know are breaches of EU law: applicants would have been entitled to permanent residency as a matter of EU law, and the UK’s failure to grant them evidence of this status, and the attached benefits, caused identifiable losses. Were we still a Member State, then, a Francovich claim for state liability seems like the logical follow-up to VI.

But we are not, and Schedule 1(4) of the EU (Withdrawal) Act 2018 generally rules out the possibility of Francovich damages via domestic court proceedings after the transition period in the withdrawal agreement:

There is no right in domestic law on or after [F1IP completion day] to damages in accordance with the rule in Francovich.

However, hidden in paragraph 39(7) of Schedule 8 of the EU (Withdrawal) Act 2018 is an exception that covers rights held and violated before Brexit:

Paragraph 4 of Schedule 1 does not apply in relation to any proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day.

VI falls within this exception, and so Francovich damages for historic mistreatment of EU nationals seeking confirmation of permanent residency and being told they could not have it because they were reliant on the NHS are a definitive possibility, provided they are started before the end of 2022. Historic wrongs here can thus still be righted, provided claims are made quickly enough.

What happens if they are not, and EU nationals want to make a claim after 2022?

Schedule 1 of the EU (Withdrawal) Agreement 2018 is itself very clear – but what is not clear is whether this domestic law provision survives the UK’s obligations under the Withdrawal Agreement itself as implemented in UK law. Section 5(7) of the EU (Withdrawal) Act 2018 thus indicates that Schedule 1 is “subject” to so-called “relevant separation agreement law”, and section 7(C) of the same Act makes clear that “relevant separation agreement law” includes the Withdrawal Agreement. If state liability is an EU law doctrine that forms part of the Withdrawal Agreement, then, it would take precedence over the UK’s abolition of the doctrine as a matter of domestic law.

Is Francovich part of the Withdrawal Agreement? On a purely practical level, it’s not clear what the point of Articles 86-89 WA is in the absence of an ability to provide remedies for breaches of EU law. Article 86 WA gives the CJEU the jurisdiction to hear this reference post-transition, and Article 89 WA makes clear that the ruling in VI is still binding on the entirety of the UK:

1.Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.

2.If, in a judgment referred to in paragraph 1, the Court of Justice of the European Union finds that the United Kingdom has failed to fulfil an obligation under the Treaties or this Agreement, the United Kingdom shall take the necessary measures to comply with that judgment.

If a CJEU judgment would not have the same effects in the UK (where it is binding in its entirety) as it would in the Member States, it is difficult to see how the ability for the CJEU to rule on matters after 2022 has much meaning: an obligation to comply with CJEU rulings on how to apply EU law applicable in the UK when it was a Member State is effectively moot, as the same EU law is not applicable in the UK anymore now. For the CJEU’s declaratory judgments to have any practical effects, they would need to be able to result in remedies to be obtainable for those who experienced losses because of historic, pre-Brexit breaches of EU law.

Important here is that that Article 4(1) WA declares the entire Withdrawal Agreement to be directly effective where it is clear, precise and unconditional, and Article 4(3) and 4(4) WA requires that “Union law or concepts or provisions thereof” have to be interpreted and applied in accordance with both methods, general principles, and pre-Brexit CJEU case law.

In 2023, therefore, an individual could argue before a UK court that Article 89 WA is directly effective—and that part of the UK taking the ‘necessary measures’ to comply with the judgment means that UK courts should be able to consider claims for state liability, as that is part of the EU law’s normal enforcement repertoire (as established by CJEU case law). Whether a UK court would accept this logic, however, is debatable; while the Withdrawal Agreement as a whole is supreme to any conflicting domestic law, and the EU (Withdrawal) Act 2018 acknowledges as much for domestic law purposes, it is a genuine matter of interpretation if Schedule 1(4) of the EU (Withdrawal) Agreement 2018 is in conflict with the Withdrawal Agreement. What would happen with any attempt to ‘Francovich’ the VI ruling after 2022, in other words, is anyone’s guess.

In the absence of an EU law remedy, anyone affected by what is over a decade of misapplication of Article 7 CD but unable to act on that via a case before 2023 looks out of luck. Judicial review applications have a time limit of 3 months maximum, and even the most generous application of that in the case of VI would have the clock starting on 10 March 2022. An argument that links VI to the withdrawal agreement's general 'EU law' effects might thus look like a long shot, but by 2023, it will be the only possible shot. 

In terms of ongoing UK policy that VI affects, we also have to look at what the withdrawal agreement applies, and requires, in terms of UK interpretation and application of that EU law. The UK has left the EU, of course, but the Citizenship Directive remains a key component of the Withdrawal Agreement’s provisions on Citizens’ Rights. All EU nationals resident in the UK on the basis of the Withdrawal Agreement are in effect still here under the rules set out in the Citizenship Directive. A key difference between now and then, however, is that as a policy choice, the UK government chose not to require economically inactive EU nationals who wished to apply for ‘Settled Status’ under the Withdrawal Agreement to hold comprehensive sickness insurance: five years of residency in the UK while having sufficient resources was all that was required.

If this seems generous, the sting is once more in the tail, because these EU nationals with ‘settled status’ nonetheless need to demonstrate they held CSI during any periods they resided in the UK under EU law (rather than the ‘Settled Status’ scheme) – so, any time before they applied for either ‘Settled Status’ or ‘Pre-Settled Status’. There are thus inevitably a number of EU nationals in the UK who have lived here for far longer than six years, but who nonetheless are not able to apply for UK citizenship because of an administrative requirement covering their pre-Brexit residency that the CJEU has now declared incompatible with EU law.

Can VI help them? Opinions are bound to differ here as well. One possible argument for the UK government to make here is that citizenship law is outside of EU competences in a very general sense, and so the UK asking EU nationals to have CSI is simply not something that the Withdrawal Agreement addresses. It might as well ask EU nationals to dance the hokey cokey: that, too, is outside of what the EU can control.

However, it is also arguable that ‘CSI cover’, as the UK demands it of EU nationals in order to naturalise, is an EU law concept that is covered by the Withdrawal Agreement, and therefore must be interpreted in line with the CJEU’s case law—bringing this particular dimension of the administrative dimension to UK nationality law within the scope of EU law. If the UK government were insistent that EU nationals could only naturalise if they had held some sort of non-NHS health insurance, the fix would be simple: just call it something else but require that EU nationals held it anyway, as retrospective (or ex post facto) legislative activity is perfectly possible under UK law. This would mean that those wanting UK citizenship would simply have to get whatever non-NHS comprehensive sickness insurance cover is, as so many before them did, and wait several more years in order to put in their application.

VI and Northern Ireland?

One further final ‘Brexit’ dimension that has to be considered in light of VI is how the judgment will work not in the UK generally, but specifically in Northern Ireland. As has been set out in a great many pieces of academic writing and commentary since 2015, the ‘Brexit’ that Northern Ireland is experiencing is distinct from the one that Great Britain has achieved, and there are particular dimensions of the Protocol on Ireland/Northern Ireland (Protocol) that remain unclear but are worth exploring in light of this judgment.

Key is Article 2 of the Protocol, of which the relevant parts read:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

There has been significant debate as to the scope of this ‘no diminution’ commitment. In terms of concrete ‘rights’ protected, the evidence to the Lords Committee on the Protocol has suggested that there are no clear limitations to the GFA concepts of ‘right, safeguard or equality of opportunity’— the GFA at best sets out a non-exhaustive list of examples.

Of course, Article 2 of the Protocol only applies to a diminution of rights that followed from Brexit, and so the likely way in which any cause for action on the basis of VI is linked to Article 2 is via remedies. Given that the EU (Withdrawal) Act 2018 will end all possibility of state liability claims in relation to pre-Brexit breaches of EU made law by the UK at the end of 2022, it appears clear that there will be a diminution of rights here (eg, right to an effective remedy) and that that diminution has been a direct consequence of Brexit (many thanks to Dr. Eleni Frantziou for pointing this out).  

This consequently would suggest that while EU nationals living in Great Britain who were denied, for example, benefits or citizenship because of the CSI requirement, may fall between the cracks created by Brexit, in the absence of a ‘willing’ judiciary, EU nationals living in Northern Ireland look like they might have a further shot at a successful claim even if they do not 'get it in' before the end of 2022. Their argument would be that a violation of EU law pre-Brexit should result in undiminished state liability for the UK post-Brexit because of Article 2 of the Protocol. But there, too, a judiciary looking to give Article 2 of the Protocol a broad meaning is a prerequisite for a result, and so it is far from obvious that anyone in the UK will experience the effects that VI would have had if the UK were still a Member State unless they get in a claim for damages before the end of this year.

Conclusion

The Commission was too worried to pursue the matter in 2012, and the CJEU seemed to feel confident enough to rule on what the NHS actually does only in 2022, after the UK left the EU, and when the ruling would probably not cause a shockwave anymore. That assessment might be slightly misplaced, however. If the above interpretation of the effects of VI in the post-Brexit UK legal landscape is correct,  the CJEU may have done just enough to still give EU nationals a surefire remedy for the wrongs they experienced for the wrongs they experienced if they leap on this judgment - and at least several routes by which they can try to attain a remedy beyond 2022. Given the general politics surrounding Brexit even now that it is supposedly 'done', one can only imagine how this will go down in Westminster. 

Photo credit: Matt Brown, via Wikimedia Commons

Temporary Protection for Ukrainians in the EU? Q and A

 

 

Professor Steve Peers, University of Essex

*updated March 2 2022 to include the Commission proposal for use of the temporary protection Directive, and guidance for applying EU external borders law.  Updated March 3 to refer to the Council agreeing on the decision. Updated March 4 to discuss the text of the decision. Updated March 28 to refer to guidance on and discussion of implementation. Updated 12 June 2024 to include later extensions of temporary protection.

**For assistance on seeking temporary protection in the EU, and guidance on implementation, see the links at the end of the blog post 

Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure – the decision to trigger the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

Member States indicated 'broad support' for use of the Directive at the EU Council meeting of February 27. The Commission duly proposed a Decision to give effect to this on March 2, alongside guidance for applying EU external borders law. The Council agreed on the  Decision on March 3, and formally adopted it on March 4. It applied from the same day. So to fully understand the legal rules now applying to those fleeing the invasion, it's necessary to discuss both the 2001 Directive and the 2022 Decision to give effect to it. What do these new rules mean for the hundreds of thousands – if not millions – of people now fleeing Ukraine?

 

Which Member States does it apply to?

EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in – although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive, but can choose to adopt its own rules on temporary protection if it wishes.

The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein). 

Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.

 

Who is covered by temporary protection?

The Directive applies to a ‘mass influx’ of ‘displaced persons’. A ‘mass influx’ is defined as:

 …arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;

‘Displaced persons’ are defined as:

…third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;

‘Article 1A of the Geneva Convention’ refers to the definition of ‘refugee’ under the UN Refugee Convention – ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group – although note that the Directive does not necessarily apply only to those who fall within that refugee definition (‘who may fall within’). Those fleeing Ukraine can point to the ‘armed conflict’ ground of the ‘displaced persons’ definition in this Directive – although note that the list of the two groups who are covered by the Directive is not exhaustive (‘in particular’), meaning that other groups of people might meet the definition too.

Note also that the Directive only applies to those leaving ‘their country or region of origin’. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their ‘origin’ is in Ukraine (‘origin’ is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: ‘outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country’ (or, if stateless, of their country of habitual residence).

Conversely, this means that the Directive does not apply to those whose ‘origin’ is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion – and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.  

However, the scope of temporary protection is further defined in the Council decision, given that, according to the Directive, the decision must specify the groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.

According to the Decision, those covered by temporary protection are: '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':  

(a) Ukrainian nationals residing in Ukraine before 24 February 2022;

(b) 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,

(c) family members of the persons referred to in points (a) and (b).

The Decision applies in a different way to another category of people: 

...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.

For this group, 'Member States shall apply either this Decision or adequate protection under their national law'. Adequate protection is not further defined; the preamble adds only that it is 'to be decided upon by each Member State'. The preamble also refers vaguely to the procedure which would apply to this group:

Those seeking to benefit from the protection should be able to prove that they fulfil these eligibility criteria by presenting the relevant documents to the competent authorities in the Member State concerned. If they are unable to present the relevant documents, Member States should redirect them to the appropriate procedure.

Furthermore, the decision notes that, as referred to in the Directive:

Member States may also apply this Decision to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin. 

The preamble gives an indication of who might fall within the scope of this option: 

Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons. 

And the preamble indicates that 'in any event' this group of fleeing people 'should...be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin'. This reflects the Commission's guidance on how to apply external borders law in light of the mass influx. 

This does not exhaust the list of further groups of people who might be optionally covered, as the preamble goes on to say: 

...Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.

Next, the Decision gives a definition of family members covered by temporary protection, 'in so far as the family was already present and residing in Ukraine before 24 February 2022': 

(a) the spouse of a person referred to in paragraph 1, point (a) or (b), or the unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its national law relating to aliens; 

 

(b) the minor unmarried children of a person referred to in paragraph 1, point (a) or (b), or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted;

(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a person referred to in paragraph 1, point (a) or (b) at the time. 

How was temporary protection set up?

The Directive is just a framework for a possible temporary protection system. So the temporary protection regime was not established automatically, but only because the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agreed that there is a mass influx of displaced persons. (In fact the vote in favour was unanimous).

According to the Directive, the Decision setting up temporary protection had to be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;

(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

This information can be found in the preamble. 

The European Parliament has to be informed of the decision, but did not have a vote beforehand.

Also, the Council decision had to set out when temporary protection takes effect (in practice, as of March 4 2022); ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’. Again, such information can be found in the preamble. 

 

How many people does it apply to?

The numbers covered by temporary protection are not necessarily unlimited. Member States had to ‘indicate - in figures or in general terms - their capacity to receive’ displaced persons. The Council decision setting up temporary protection had to set out these numbers. In practice, there is only a brief mention of this point in the preamble: 'over and above the absorption capacity of the Ukranian [sic] diaspora residing in the Union' a few Member States have indicated that they have capacity exceeding 310 000 places  Later on Member States ‘may’ declare that they have more reception capacity. 

If the numbers who are ‘eligible for temporary protection’ is higher than the numbers that Member States have said they can accept, ‘the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected’. It will remain to be seen what happens on this point.

If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications – but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.

 

How long will it last?

The starting point is that temporary protection is one year long, although it can be terminated early if the Council decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so ‘as to permit the safe and durable return’ of the beneficiaries.

After the initial year, temporary protection is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.

[update: in practice temporary protection was extended automatically for a second year. The Council then decided to extend it for another year. In June 2024 the Commission proposed to extend it for a fourth year, which is legally controversial].

 

What rights do people covered by temporary protection have?

Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter. 

Also, Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.

As for social welfare and housing, Member States must ‘ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing’, and ‘shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care’ – which ‘shall include at least emergency care and essential treatment of illness’. Member States must also ‘provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.’

For education, Member States must give ‘access to the education system under the same conditions as nationals of the host Member State’ for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.

According to the Directive, Member States have to authorize entry of family members, ‘in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx’. But this only applies to ‘core’ family members: 

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

The Directive states that admission of a broader group of family members is only optional, ‘taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place’: 

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

However, the rules on family members in the Directive have in effect been superseded by the Decision implementing it, which places both these categories of family members within the mandatory scope of temporary protection as such - without needing to take 'extreme hardship' into account. (The Decision does require that 'the family was already present and residing in Ukraine before 24 February 2022') 

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection. On this point, the preamble elaborates further: 

This Decision is compatible with, and can be applied in complementarity with, national temporary protection schemes, which can be considered as implementing Directive 2001/55/EC. If the Member State has a national scheme that is more favourable than the arrangements set out in Directive 2001/55/EC, the Member State should be able to continue applying it, since that Directive provides that Member States may adopt or retain more favourable conditions for persons covered by temporary protection. However, should the national scheme be less favourable, the Member State should ensure the additional rights provided for in Directive 2001/55/EC.

Finally, there is a right to ‘mount a legal challenge’ to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts. 

Can temporary protection beneficiaries move between Member States?

There are two dimensions to this issue: before and after obtaining temporary protection. 

Before obtaining temporary protection, the preamble to the Directive states that: 

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.

So the Member States have explicitly agreed to 'applicants' choice' as regards seeking temporary protection, facilitated by the short-term free movement of Ukrainians after their visa-free entry . (The preamble is silent about the position of non-Ukrainians covered by the Decision in this respect). This is a Copernican revolution from the way in which the EU's Dublin system treats the allocation of responsibility for asylum applicants - although Syrians, Eritreans and other asylum seekers have diasporas too. Moreover, most asylum seekers are from countries whose nationals do not benefit from a visa waiver. 

After obtaining temporary protection, the Directive states that if a person with temporary protection from one Member State remains on or seeks to enter (without authorisation) the territory of another Member State without authorization during the temporary protection period, the Member State which granted temporary protection must take them back. This is similar to the EU's Dublin system on responsibility for asylum seekers (on which, more below). However, the Directive provides that Member States may agree bilaterally that this rule does not apply.

In fact, during negotiations on the 2022 Decision, all Member States decided to apply this option of not applying the take-back rule, adopting a statement (not yet published in the EU Official Journal, but referred to in the preamble to the Decision) agreeing not to apply this rule in order to support frontline Member States, unless Member States agreed bilaterally that the rule would apply after all. This is very much a 'gentlemens' agreement', given that it is opposite to the default rule in the Directive: in other words, it is a political commitment which is arguably not legally enforceable.

Note, though, that if a person with temporary protection from one Member State decides to move to another Member State, they have no right to insist that their temporary protection status is transferred. So they have no rights as such in that Member State, even though it has made a commitment not to request the first Member State to take them back. The preamble makes this point explicit: 

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. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision. 

 

How does temporary protection relate to asylum applications?

The point of a temporary protection regime is to reduce pressure on asylum systems, as the preamble to the Decision reiterates: 

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Indeed, it may well be the case in practice that most people with temporary protection will not feel the need to apply for asylum, as least as long as temporary protection is applicable. But the Directive nonetheless addresses what happens if they do apply for asylum.

According to the Directive, temporary protection ‘shall not prejudge’ refugee recognition under the Refugee Convention. It will be possible to apply for asylum ‘at any time’.* Any asylum application not processed by the end of the temporary protection period has to be processed afterwards.

However, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.

Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’). Exclusions ‘shall be based solely on the personal conduct of the person concerned’, and must be ‘based on the principle of proportionality’.

As for which Member State would be responsible for considering an asylum application, the EU’s Dublin rules will determine in which Member State an application is made. In most cases, this will mean that the Member State that granted temporary protection is responsible for considering the application, because that entails issuing a residence permit, and the Dublin rules assign responsibility to a Member State which issued a residence permit. (This takes precedence, under the Dublin rules, over the responsibility of the Member State of first entry).  

Unfortunately, the temporary protection Directive could muddy the waters somewhat, as it refers to the Member State which has accepted the transfer of the person onto its territory being responsible. It is not clear if that is a different issue from being the Member State which issued the residence permit. Also the commitment not to send back temporary protection beneficiaries to the Member State which granted temporary protection overlaps awkwardly with the Dublin rules which would normally require this to take place for asylum seekers. 

  

What happens once temporary protection expires?

Once the temporary protection regime ends, the ‘general laws’ on protection and on foreigners apply, ‘without prejudice’ to certain specific provisions in the Directive. Arguably the reference to the ‘general laws’ must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU’s Returns Directive, which were adopted after the temporary protection Directive. However, the Returns Directive explicitly gives way to more favourable rules in other EU immigration or asylum law - which includes those in the temporary protection Directive. 

For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU’s qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU’s Dublin rules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.  

It’s also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).

Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it’s anyone’s guess if it will do.

There is an express possibility of enforced return of persons after the regime has ended, but such return must be ‘conducted with due respect for human dignity’, and Member States ‘shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases’. They must also ‘take the necessary measures concerning’ residence status of former beneficiaries of temporary protection ‘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’. Specifically, those persons ‘shall not be expelled so long as that situation continues.’ Finally on the issue of return, Member States have discretion over whether to let children complete their school year.

 

Comments

When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications. In practice, the EU has since adopted two phases of asylum laws, modestly enhancing the level of protection when adopting the second phase. 

But following an initial welcome of people fleeing the Syrian civil war at the outset of the 2015-16 'refugee crisis', EU asylum law took a dystopian turn in practice. Pushbacks from the territory.  Collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU in the first place - even if it meant they remained subject to appalling treatment in that country.  Detention of asylum seekers in unpleasant conditions. A questionable, but legally unaccountable, quasi-agreement with Turkey. Informal - and again unaccountable - readmission arrangements. A border agency subject to increasing concerns about the legality and morality of its behaviour. 

The descent of asylum law in practice into this moral abyss has shown the EU and its Member States at their worst. But today's temporary protection decision shows the EU at its best - precisely because it waives so many of the basic precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment).  This can only be welcome, but it raises obvious questions about the double standards which apply to others fleeing war or persecution.

Assistance with and guidance on temporary protection 

Commission guidance on implementation of the temporary protection decision

Council discussion paper on coordination of implementation

ECRE compilation of information from different Member States

Luxembourg government

NGO in Luxembourg 

Austrian government hotline for those needing humanitarian assistance and legal aid

(section added March 4 2022, updated March 28 2022)

Further reading

2016 report on the implementation of the Directive in Member States' national law in 2016. Note that now the temporary protection Directive has been activated in practice, Member States might decide to revise their implementing measures. 

UK Statutory Instrument 2005/1379 implementing the Directive; UK Statutory Instrument 2019/745 repealing SI 2005/1379 in light of Brexit (see reg 52). 

(section added March 2 2022)

 

Photo credit: Leonhard Lenz, via Wikimedia Commons

*Corrected on Feb 28 2022 to drop the statement that 'Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended'. In fact the Directive does not explicitly provide for this as such - although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies.