Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law; Migration Policy Centre Associate, European University Institute
Photo credit: Falin, on Wikimedia Commons
A crucial question arises as the March 2025 deadline for the Council Directive 2001/55/EC (Temporary Protection Directive), applicable to those fleeing the Ukraine conflict, approaches. This issue revolves around the fate of these individuals once this directive expires. Numerous experts, including myself, have explored potential solutions. Some suggest offering residency permits to Ukrainians, while others propose granting them collective international protection. My own stance, as outlined in previous work, advocates for transitioning Ukrainians under temporary protection to a form of residency, ideally long-term, or granting them collective international protection within the EU. However, this specific piece focuses on the critical question of when the temporary protection regime within the EU should conclude, not on what comes after.
It’s no secret in Brussels that several European politicians have been suggesting the Temporary Protection Directive could be reactivated, potentially extending the temporary protection period to six years or more. Others have proposed prolonging it beyond three years through consecutive one-year extensions approved by the Council. Interestingly, a recent European Parliamentary Research Service (EPRS) Briefing acknowledges this possibility, citing a master’s student’s blog post. This student argues that a meticulous analysis of the Temporary Protection Directive’s provisions reveals no explicitly stated time limit for its application. Lately, I’ve received media inquiries regarding the feasibility of extending the EU’s temporary protection regime beyond the three-year mark and the potential consequences of such a legally precarious interpretation. This issue carries significant weight, affecting over 4.2 million Ukrainians, a large portion of whom are women and children. That’s why I’ve chosen to address this topic head-on. As a researcher with over a decade of experience studying the Temporary Protection Directive, I aim to emphasize, once more, why a careful examination of its provisions clearly demonstrates a defined time limit. I contend that the temporary protection regime in the EU, under the current wording of the Temporary Protection Directive, cannot legally extend beyond three years. If the EU chooses to proceed with this legally dubious interpretation, it risks violating not only the Temporary Protection Directive itself and the EU law principle of proportionality but also the 1951 Refugee Convention. [Update: Despite this, on June 11th, the Commission put forward a proposal for such an extension.]
A 3-Year Time Limit: Is It Really Open to Interpretation?
Article 4 of the Temporary Protection Directive states:
“1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.
Where reasons for temporary protection persist, the Council may decide by a qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.”
Article 4(1) establishes that temporary protection typically lasts for one year but can be automatically extended for an additional year, totaling two years. Furthermore, Article 4(2) grants the Council the authority to extend this two-year period by a maximum of one year, resulting in a total of three years. In practice, following the initial one-year invocation of temporary protection in March 2022, it underwent two tacit extensions, bringing us to March 2024. Subsequently, a Council decision extended it for another year, setting the current expiry date at March 2025.
This wording might seem intricate to a master’s student just beginning to learn about the directive or a politician who hasn’t had the opportunity to delve into legal research on temporary protection. However, the three-year time frame stipulated in Article 4 of the Temporary Protection Directive is unambiguous and shouldn’t be subject to questionable interpretations lacking legal basis. Legal experts specializing in the Temporary Protection Directive, like Skordas and Peers, share this viewpoint. Furthermore, Skordas offers a detailed account of the discussions leading to the adoption of Article 4. While initial proposals included time limits ranging from two to five years, with some Member States advocating for longer or shorter durations, the final compromise, a three-year limit, was reached based on the Presidency’s proposal. Therefore, the Temporary Protection Directive’s preparatory documents offer no support for such a broad interpretation.
What if the EU Proceeds to Reactivate the Directive or Extend It Past the Three-Year Limit?
Firstly, choosing to reactivate the Directive or extend it beyond the three-year limit would constitute a direct violation of the Temporary Protection Directive itself. Secondly, such an action could undermine the 1951 Refugee Convention, to which all Member States are signatories. Despite its numerous advantages for Ukrainians escaping the conflict, the Temporary Protection Directive represents a departure from the 1951 Refugee Convention because it suspends standard asylum procedures and offers a more limited set of rights compared to those granted to refugees under the Convention.
While mass influx situations might, under specific circumstances, justify partially suspending the implementation of international instruments like the Refugee Convention, such measures must adhere to the principles of necessity and proportionality. Extending temporary protection beyond the three-year mark without a defined endpoint could violate these principles and fail to meet the criteria outlined in international law.
Lastly, this legally problematic broad interpretation sets a dangerous precedent. Accepting it without amending the Temporary Protection Directive could lead to a slippery slope. If the directive can be reactivated or extended indefinitely once, there’s no guarantee it won’t be reactivated multiple times or remain in effect for an excessive period. Therefore, reactivating the directive or extending its application without clear limitations would contradict the principles of proportionality and necessity. The prolonged existence of a mass influx situation does not automatically justify disregarding relevant EU and international legal frameworks.
Conclusions
Temporary protection measures should have clearly defined time limits. Without them, temporary protection transforms from a practical framework for managing mass influx situations and offering refuge to a mechanism that undermines the Refugee Convention, EU instruments, and fundamental principles. The notion that the Temporary Protection Directive can be reactivated or extended without limitations is legally flawed. Beyond its legal ramifications, this approach generates harmful uncertainty. Leaving the futures of over four million Ukrainians in limbo for an indefinite period, without any clear path to durable solutions, is unjust and threatens to undermine the achievements of the EU’s temporary protection regime implemented in 2022.