Temporary protection in case of massive arrivals in the European Union: the EU Directive 2001/55/CE

After the start of Russia’s military invasion of Ukraine on February 22nd, 2022, the European Council condemned in the strongest terms the military aggression of the Russian Federation against Ukraine. In this context, the Council invited the European Commission to immediately take emergency measures, highlighting how the European Union would suffer repercussions “on its external borders, in particular due to the growing migratory pressure exerted by the thousands of people seeking external protection in EU member states“. Given the extraordinary and exceptional nature of the Russian intervention and the extent of the expected new arrivals, the institutions of the European Union considered that the Directive on Temporary Protection, Directive 2001/55 / ​​EC of 20 July 2001, would be able to offer an adequate response to the current situation.

The contents of the Directive 2001/55/CE 

Directive 2001/55 / ​​EC of 20 July 2001, as stated by the European legislator himself, aims to establish minimum standards for the granting of temporary protection in the event of a massive influx of displaced persons from third countries, while promoting solidarity among EU Member States receiving displaced persons. In other words, EU States intend to offer effective and timely protection to people who need it in exceptional circumstances of mass arrivals and, at the same time, to avoid overloading the asylum systems of individual Member States also through the support of Union agencies (specifically FRONTEX, EUROPOL and EUAA).

Temporary protection” is an exceptional procedure which guarantees, in cases of massive influx of displaced persons, immediate and temporary protection for displaced persons, also applying to those who, according to the Geneva Convention, can be considered asylum seekers and refugees and to persons protected by other national or international regulations that confer international protection. Consequently, temporary protection does not affect the recognition of these statuses. For these reasons, people who enjoy this form of protection must be able to submit an asylum application at any time.

Beneficiaries of temporary protection are guaranteed rights of residence, entry into the labor market according to the policies of the Member State, access to housing, access to social assistance, access to medical assistance or other types of assistance, while unaccompanied foreign minors are guaranteed the right to a legal guardian and access to education. In addition, pursuant to art. 11 of the Directive, a Member State readmits a person who enjoys temporary protection in its territory if they stays or tries to illegally enter the territory of another Member State. However, it is important to highlight those States, on the basis of a bilateral agreement, may decide not to apply this provision.

In order to implement Directive 2001/55 / ​​EC, the Council ascertains the existence of a massive influx of displaced persons with a decision adopted by qualified majority on a proposal from the Commission. The decision is based on an examination of the situation and extent of the movements of displaced persons, as well as on the existence of a conflict and a situation of endemic violence. In the decision:

  1. the specific groups of persons deserving of such protection are described;
  2. the effective date is declared;
  3. the information provided by the EU Member States on their accommodation capacity is reported;
  4. the information prepared by the UNHCR, the Commission and other competent international organizations on the emergency situation is entered.

Beyond the contents of the implementing decision, Member States have a certain margin of discretion in the sense that they can admit to temporary protection other categories of displaced persons in addition to those provided for if they are displaced for the same reasons and from the same country or region of origin. In this case, the concerned State must inform the Council and the Commission but will not be able to benefit from the European Refugee Fund or the solidarity mechanisms established by the Directive for these additional categories.

In any case, EU Member States may exclude from beneficiaries of temporary protection a person on whom there are serious reasons to believe that they committed, for example, a war crime or a crime against humanity, a serious crime of a non-political nature outside the host Member State prior to their admission, acts contrary to the principles and purposes of the United Nations, or if there are reasonable grounds for considering them a danger to the security of the host Member State.

The term of temporary protection is equal to one year and can be automatically extended by six months in six months for a maximum period of one year. If the reasons for granting temporary protection persist, the Council, based on a proposal from the Commission, may decide by a qualified majority on an extension for another year. Through the same procedure, the Council can decide on the termination of this type of protection.

At the end of the temporary protection, due to expiry or by decision of the Council, the legislation in force in the Member States on migration applies, without prejudice to the procedures for voluntary or forced return provided for by the Directive in articles 21 and 22 and for the necessary measures relating to residence conditions of persons who, given their state of health, are not in a position to travel.

Temporary protection of people fleeing Ukraine 

Following the Russian invasion of Ukraine, on 2 March 2022 the European Commission presented the Proposal for a Council’s Implementation Decision which ascertains the existence of a massive influx of displaced persons from Ukraine. Subsequently, on 4 March 2022, for the first time in history the Council of the European Union, with the Implementing Decision (EU) 2022/382, unanimously decided to activate the Directive 2001/55/​​EC on temporary protection, establishing the existence of a massive influx of displaced people who have fled Ukraine as a result of the armed conflict.

In Article 2, it is stated that the decision applies to the following categories of people who have been displaced from Ukraine since February 24, 2022 following the military invasion of the Russian armed forces:

  1. Citizens of Ukraine residing in Ukraine before February 24, 2022;
  2. stateless persons and citizens of third countries other than Ukraine who benefited from international protection or equivalent national protection in Ukraine before February 24, 2022;
  3. family members of people who fall into the two previous categories.

It is then specified that the Member States apply the decision of an adequate protection towards stateless persons and citizens of third countries other than Ukraine who can demonstrate that they were legally residing in Ukraine and that they cannot return in safe and stable conditions to their country of origin.

It is important to note in this context that the non-application clause of the requirement of the impossibility of returning in safe and stable conditions to their country of origin for third-country nationals or stateless persons who have been legally residing in Ukraine for a long period has been removed in the transition from Commission proposal for final Council decision. The latter has in fact decided not to automatically include among the recipients of temporary protection third-country nationals who regularly lived in Ukraine on the basis of a non-permanent residence permit. Despite this, pursuant to Article 7 of Directive 2011/55 / ​​EC, Member States may also apply the decision to other persons who were legally residing in Ukraine and who cannot return in safe and stable conditions to their country of origin. According to the Decision, however, these people should also be admitted to the Union for humanitarian reasons without having to present a visa or valid travel documents, in order to guarantee them safe passage in order to return to their country of origin.

As highlighted by Recital no. 8 of the Decision, Ukrainian citizens are exempt from the visa requirement when crossing the border. The Decision explicitly refers to the fact that Ukrainian citizens can enter and move freely within the territory of the Union for a maximum period of 90 days. By implication, this entails the right of Ukrainian citizens to choose which Member State to go to and then apply for temporary protection.

Consequently, however, the Decision does not provide for an equivalent right for third-country nationals who are beneficiaries of international protection in Ukraine, stateless persons or Ukrainian citizens from third countries. Instead, they will be able to move within the territory of the Union in compliance with the provisions valid for citizens of their country of citizenship. On the other hand, in the event of illegal entry and / or stay in a Member State, in Recital no. 15, it is specified that in a declaration the Member States have agreed not to apply Article 11 of Directive 2001/55 / ​​EC. Therefore, the possibility for a Member State to readmit a person enjoying temporary protection to its territory is excluded if he / she stays or tries to enter the territory of another Member State illegally.

Consequently, once a Member State has issued a residence permit in accordance with Directive 2001/55 / ​​EC, the person enjoying temporary protection should be able to avail himself of the rights deriving from temporary protection only in the issuing Member State of residence.

Lastly, as required by Decision 2022/382, it should be noted that those seeking protection must demonstrate that they meet the relative eligibility criteria “by submitting the relevant documents to the competent authorities of the Member State”. If Member States are unable to submit the relevant documents, they should redirect them to the appropriate procedure. In this regard, it remains to be seen whether national legal systems will establish more precise rules in this regard and how national practices will interpret this requirement.

With regard to Italy, on an internal level, the Government must implement the Decision by means of a Prime Minister’s Decree as required by Article 20 of the Consolidated Immigration Text and by Article 3 of Legislative Decree no. 85 of 7 April 2003, which constitutes the internal standard for the transposition of Directive 2001/55 / ​​EC.

Why is Temporary Protection only now activated? 

The birth of temporary protection finds its raison d’etre in the events that were affecting the former Yugoslavia, in particular Kosovo, and in the concerns for the situation of the displaced, with respect to which the adoption of measures aimed at ensuring immediate protection. Precisely from these reasons it is clear that this norm was created to be used in exceptional circumstances, without wanting to replace other forms of protection recognized in order to guarantee respect for human rights and fundamental freedoms. Despite the various crisis scenarios that have suddenly opened in the last twenty years, the Directive has never been implemented, at least until the events in Ukraine. Already in the early 2000s, the Council had considered the possibility of activating the Directive for Iraqi and Afghan displaced persons, but this intention was not materialized.

Once again, the activation of the Directive was again evaluated in 2011 in the light of the so-called Arab springs that have affected the North African countries. At the time, it was the representatives of Italy and Malta who asked the European Commission to propose the activation of this instrument to the Council. The request was rejected because European institutions believed numbers of people fleeing the countries in question had not yet been reached a level that could allow to declare the existence of a massive influx of displaced persons.

The same happened between 2014 and 2015, although the existence of a “massive influx of displaced people” following the Syrian conflict seemed evident. In those years the European Union proved immobile in the face of the high number of people involved in the situation of armed conflict and endemic violence, as well as serious violations of human rights, which upset Syria. Despite the evident need for immediate and temporary protection for Syrians and the significant effects on the asylum systems of the Member States, the EU decided not to activate this instrument and to continue along alternative routes.

Even more recently, we can think of the events that shocked Afghanistan in August 2021. Also in this case, it was decided not to activate temporary protection. Despite the dramatic images that came from the country, the direct testimonies of those who were on the ground, the situation of endemic violence and the persecution of women, activists, members of the LGBTQ + community, journalists, lawyers or former collaborators of Western forces, the European Union demonstrated to be unable to offer an effective answer. Despite repeated declarations of condemnation of the Afghan events, it has not been possible to activate a useful tool to deal with the crisis and support people on the run. The same Directive on Temporary Protection, for example, would have allowed the use of humanitarian corridors, in cooperation with the UNHCR, with the obligation for Member States to provide any useful facility for obtaining visas if necessary.

As we have seen, the activation of Temporary Protection has always met with resistance from the member states of the Union. Over the years, scholars have highlighted that this could be due, for example, to the following reasons:

  1. according to the States, the recognition of temporary protection could act as an “attractive” factor of migration for people who remain in the country of origin;
  2. the difficulties related to the activation request procedure and to reaching a qualified majority in the Council would have prevented the adoption of the implementing decision;
  3. the difficulty in achieving solidarity between states in the face of migratory phenomena would have made the authentic prerequisite for the application of the Directive lacking.

Faced with the Russian invasion, the European Union has decided to implement the Directive on Temporary Protection. What is worrying, however, is the discriminatory attitude that we observed at the beginning of the crisis:

  1. border selection of migrants on the basis of skin color;
  2. the will of the member states, expressed in the approval of the decision, to have greater discretion on the reception of “non-Ukrainians”;
  3. the statements of politicians worried about new migratory flows from Africa with transit through Ukraine.

Another element should be added, affirmed by the Explanatory Memorandum annexed to the Proposal for a decision: the activation of the Directive is part of a complete series of EU actions in response to the Russian military incursion into Ukraine and therefore is consistent with the external action of the Union.

Behind the Decision to activate the Directive, in addition to the proximity and nature of the Ukrainian conflict, there are also reasons of a geopolitical nature such as, for example, the defense of external borders or the fact that Russia represents an enemy for the Union, unlike what the Taliban regime can represent.

Notwithstanding that the decision to activate Temporary Protection is essential to respond to the protection needs of Ukrainian displaced persons, it should be highlighted that in the face of human rights violations and crisis scenarios, States must not create series A refugees and refugees even less, in the face of the tragedy of war, we must pass the concept between public opinion that there are “real” wars and “false” wars and that the same – and their consequences – must be treated differently.

Conoscere è resistere!

Condividi questo articolo e aiutaci a diffondere i nostri contenuti

Leave a Reply

Your email address will not be published. Required fields are marked *

Puoi continuare ad approfondire attraverso i nostri articoli: