Temporary Protection for People Fleeing Ukraine: What You Need to Know

By 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 

In response to the Russian invasion of Ukraine, a significant asylum law measure was taken: activating the EU’s Temporary Protection Directive, a legal structure for managing mass arrivals of individuals needing safety, established in 2001 but never before utilized.

Following Member States’ indication of “broad support” for employing the Directive at the February 27 EU Council meeting, the Commission presented a Decision on March 2 to implement it, accompanied by guidance for enforcing EU external border regulations. The Council approved the Decision on March 3, formally adopting it on March 4, effective immediately. To comprehend the current legal regulations for those escaping the conflict, it’s crucial to analyze both the 2001 Directive and the 2022 Decision. What do these new regulations signify for the massive exodus of individuals fleeing Ukraine?

Which Member States are Affected?

EU asylum law typically applies to all Member States, excluding the UK, Ireland, and Denmark, which opted out of the Directive. Although the UK initially chose to opt in, this is now irrelevant due to Brexit. While Ireland initially opted out, it later opted in in 2003. Denmark remains outside the Directive’s scope but can implement its own temporary protection regulations if desired.

The parallel guidance on applying EU external border regulations applies to all Member States except Ireland (as other non-fully participating Schengen Member States currently implement EU external border rules) and Schengen associates (Norway, Iceland, Switzerland, and Liechtenstein).

It’s worth noting that EU Member States had already lifted short-term visa requirements for Ukrainians in 2017. This applies to all Member States (and Schengen associates) except Ireland, which recently waived short-term visa requirements for Ukrainians independently.

Who Qualifies for Temporary Protection?

The Directive targets a “mass influx” of “displaced persons.” A “mass influx” is defined as:

…the 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 UN Refugee Convention’s definition of “refugee” - a well-founded fear of persecution based on race, religion, political opinion, nationality, or social group. However, the Directive doesn’t solely apply to those fitting the refugee definition (“who may fall within”). Those escaping Ukraine can cite the “armed conflict” aspect within the Directive’s “displaced persons” definition. However, the two categories listed aren’t exhaustive (“in particular”), meaning other groups might qualify.

The Directive only covers those departing “their country or region of origin,” encompassing Ukrainian citizens and non-Ukrainians who can establish Ukraine as their “origin.” While “origin” isn’t explicitly defined, this scope is broader than the Refugee Convention’s, which applies to those “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 habitual residence for stateless individuals).

Conversely, this excludes those whose “origin” isn’t Ukraine, potentially encompassing non-Ukrainian citizens who relocated to Ukraine recently. While they still require refuge, hopefully, their need to flee and immediate humanitarian needs will be acknowledged even if they technically fall outside the Directive’s scope.

The Council decision further defines the scope of temporary protection. The Directive mandates that this decision specifies covered groups, although Member States can extend it to others displaced for similar reasons and from the same area. However, financial support outlined in the Directive won’t apply to such groups.

The Decision outlines those eligible for temporary protection as: ’the following categories of persons displaced from Ukraine on or after 24 February 2022, due to the military invasion by Russian armed forces that commenced 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 individuals mentioned in points (a) and (b).

The Decision applies differently to another group:

…stateless persons and nationals of third countries other than Ukraine, who can prove they legally resided in Ukraine before 24 February 2022 with a valid permanent residence permit issued under Ukrainian law and cannot safely and permanently return 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 lacks further definition; the preamble only adds that each Member State determines it. The preamble vaguely addresses the applicable procedure:

Individuals seeking protection should demonstrate their eligibility by presenting relevant documents to the concerned Member State’s authorities. If they cannot provide these, Member States should direct them to the appropriate procedure.

Furthermore, the decision reiterates the Directive’s provision:

Member States may also apply this Decision to others, including stateless individuals and non-Ukrainian third-country nationals legally residing in Ukraine who cannot return safely and permanently to their origin.

The preamble hints at who might fall under this option:

This could include third-country nationals studying or working short-term in Ukraine when the mass displacement occurred.

It emphasizes that “in any event,” this fleeing group “should…be admitted into the Union on humanitarian grounds without requiring, specifically, a valid visa, sufficient funds, or valid travel documents, ensuring safe passage to return to their origin.” This reflects the Commission’s guidance on applying external border law during mass influx situations.

This list isn’t exhaustive, as the preamble continues:

…Member States should consider extending temporary protection to those fleeing Ukraine shortly before 24 February 2022, as tensions rose, or those within the Union (e.g., on holiday or for work) just before that date who cannot return to Ukraine due to the conflict.

The Decision defines family members covered by temporary protection, “provided the family resided in Ukraine before 24 February 2022”:

(a) the spouse of an individual mentioned in paragraph 1, point (a) or (b), or the unmarried partner in a stable relationship, where the Member State’s law or practice treats unmarried couples similarly to married couples under its alien legislation;

(b) the minor unmarried children of an individual mentioned in paragraph 1, point (a) or (b), or their spouse, regardless of birth circumstances or adoption status;

(c) other close relatives residing as part of the family unit when the mass displacement occurred, wholly or mainly dependent on an individual mentioned in paragraph 1, point (a) or (b).

How Was Temporary Protection Implemented?

The Directive provides a framework for a potential temporary protection system. The Council (Member States’ home affairs ministers), acting by a qualified majority on a Commission proposal, established the temporary protection regime after agreeing on a mass influx of displaced individuals. (The vote was actually unanimous.)

According to the Directive, the Decision establishing temporary protection had to consider:

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

(b) the advisability of temporary protection, considering potential emergency aid and on-the-ground action or the inadequacy of such measures;

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

This information is available in the preamble.

The European Parliament is informed of the decision but doesn’t vote beforehand.

The Council decision also had to specify the effective date of temporary protection (March 4, 2022); “information received from Member States on their reception capacity”; and “information from the Commission, UNHCR, and other relevant international organizations.” This information is also in the preamble.

How Many People are Eligible?

Temporary protection coverage isn’t necessarily unlimited. Member States had to “indicate - numerically or generally - their capacity to receive” displaced individuals. The Council decision establishing temporary protection had to outline these numbers. However, the preamble only briefly mentions this: “beyond the absorption capacity of the Ukrainian diaspora within the Union,” a few Member States indicated exceeding 310,000 places. Member States “may” later declare additional capacity.

If those “eligible for temporary protection” exceed Member States’ stated capacity, “the Council shall urgently examine the situation and take appropriate action, including recommending additional support for affected Member States.” It remains to be seen how this will unfold.

If numbers are exceeded, Ukrainians ineligible for temporary protection can still apply for asylum. However, managing the influx would likely be challenging for Member States.

How Long Will it Last?

Temporary protection lasts one year, terminable early by a qualified majority Council vote on a Commission proposal if the Council determines that conditions in the origin country allow “safe and durable return” for beneficiaries.

After the initial year, temporary protection automatically extends for six-month periods, up to a two-year maximum. A further extension to a third year is possible through a qualified majority Council vote on a Commission proposal.

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

What Rights Do Beneficiaries Have?

Member States must issue residence permits for the temporary protection period. They must also provide visas to allow entry for those not yet within their territory.

Beneficiaries are permitted to work or be self-employed, although Member States can prioritize EU and EEA nationals, and legally residing third-country nationals receiving unemployment benefits. Each Member State’s “general law” on pay, social security, and working conditions applies.

Regarding social welfare and housing, Member States must “ensure access to suitable accommodation or, if necessary, means to obtain housing” and “provide necessary social welfare assistance and means of subsistence if they lack sufficient resources, as well as medical care,” including “at least emergency care and essential illness treatment.” Member States must also “provide necessary medical or other assistance to those with special needs, such as unaccompanied minors or victims of torture, rape, or other severe psychological, physical, or sexual violence.”

For education, those under 18 must have “access to the education system under the same conditions as nationals,” potentially limited to state education. Admitting adults to general education is optional.

While the Directive states that Member States must authorize family reunification “where families were separated due to circumstances surrounding the mass influx,” this only applies to “core” family members:

(a) the spouse or unmarried partner in a stable relationship where the Member State treats unmarried couples comparably to married couples under alien legislation; and minor unmarried children, regardless of birth circumstances or adoption status.

Admitting a broader range of family members is optional, “considering the extreme hardship they’d face without reunification”:

(b) other close relatives living together when the mass influx occurred and were wholly or mainly dependent on the sponsor.

However, the Decision effectively supersedes the Directive’s family reunification rules. It mandates temporary protection for both categories without considering “extreme hardship,” as long as “the family resided in Ukraine before 24 February 2022.”

The Directive clarifies that Member States can adopt more favorable rules for those under temporary protection. The preamble elaborates:

This Decision complements national temporary protection schemes, which can implement Directive 2001/55/EC. Member States with more favorable national schemes can continue applying them, as the Directive allows retaining or adopting more favorable conditions. However, less favorable national schemes must ensure the additional rights provided by Directive 2001/55/EC.

Finally, there’s a right to “legally challenge” exclusion from temporary protection or family reunification. Based on CJEU case law on other EU migration laws, this implies access to courts.

Can Beneficiaries Move Between Member States?

There are considerations before and after receiving temporary protection.

The Directive’s preamble states that before obtaining temporary protection:

Ukrainian nationals, as visa-free travelers, can move freely within the Union for 90 days after entry. They can choose where to access temporary protection rights and join family and friends across the Union’s significant diaspora networks. This facilitates burden-sharing between Member States, reducing pressure on national reception systems.

This signifies Member States’ explicit agreement on “applicant’s choice” for seeking temporary protection, facilitated by short-term free movement for Ukrainians after visa-free entry. The preamble is silent on the situation of non-Ukrainians covered by the Decision in this regard. This represents a significant shift from the EU’s Dublin system for allocating responsibility for asylum seekers, despite Syrians, Eritreans, and other asylum seekers also having diasporas. Additionally, most asylum seekers are not from countries with visa waivers.

After obtaining temporary protection, if someone remains in or enters another Member State without authorization during the temporary protection period, the granting Member State must take them back, according to the Directive. This mirrors the EU’s Dublin system for asylum seekers. However, Member States can bilaterally agree to waive this rule.

During negotiations on the 2022 Decision, all Member States agreed not to apply the take-back rule, adopting a statement (not yet published in the EU Official Journal, but mentioned in the Decision’s preamble) to support frontline Member States, unless bilaterally agreed otherwise. This “gentlemen’s agreement” contradicts the Directive’s default rule and is arguably not legally binding.

However, relocating beneficiaries have no right to transfer their temporary protection status and thus have no inherent rights in the new Member State, even if it has committed to not returning them. The preamble clarifies:

After receiving a residence permit under Directive 2001/55/EC, individuals, while retaining the right to travel within the Union for 90 days within 180 days, can only access temporary protection rights in the issuing Member State. This shouldn’t preclude another Member State from granting a residence permit to individuals under this Decision.

How Does Temporary Protection Interact with Asylum Applications?

The Decision’s preamble reiterates that temporary protection aims to ease pressure on asylum systems:

Temporary protection is expected to benefit Member States by limiting the immediate need for displaced persons to seek international protection and preventing overwhelming their asylum systems. The accompanying rights minimize formalities due to the urgent situation.

While many with temporary protection may not apply for asylum, at least while it’s applicable, the Directive addresses this possibility.

It states that temporary protection “doesn’t prejudge” refugee recognition under the Refugee Convention, allowing asylum applications “at any time.” Unprocessed applications by the temporary protection period’s end must be processed afterward.

However, Member States can discourage applications by barring simultaneous temporary protection and asylum-seeker status. Asylum seekers often have fewer rights than temporary protection beneficiaries. If an asylum or other protection application fails, temporary protection must continue.

Member States may exclude individuals from temporary protection based on Refugee Convention exclusion clauses (war crimes/crimes against humanity, serious non-political crimes, or acts against UN principles and purposes) or non-refoulement exclusion clauses (posing a danger to the host Member State’s security or, having a final conviction for a particularly serious crime, to its community). Exclusions “must be based solely on personal conduct,” adhere to “proportionality,” and be “duly substantiated.”

The EU’s Dublin regulation determines the responsible Member State for asylum applications. Usually, it’s the one that granted temporary protection, as this involves issuing a residence permit, and the Dublin rules prioritize the Member State that issued it over the first entry point.

Unfortunately, the temporary protection Directive might create ambiguity by mentioning the Member State accepting the transfer as responsible, without clarifying if this differs from the one issuing the residence permit. Additionally, the commitment against returning beneficiaries to the granting Member State clashes with the Dublin rules, which usually mandate it for asylum seekers.

What Happens When Temporary Protection Ends?

Once the temporary protection regime ends, “general laws” on protection and foreigners apply, “without prejudice” to specific Directive provisions. These “general laws” likely encompass not just national legislation, but also EU rules on asylum and the EU’s Returns Directive, adopted after the temporary protection Directive. However, the Returns Directive defers to more favorable rules in other EU immigration or asylum law, including those in the temporary protection Directive.

For asylum seekers, this means the definitions of refugee and subsidiary protection in the EU’s qualification Directive apply, along with procedural rules in the procedures Directive and asylum seeker status rules in the reception conditions directive. The EU’s Dublin rules determine the responsible Member State, although the temporary protection Directive adds some (unclear) provisions.

Ukrainians might also obtain legal status through national or EU legal migration laws (partially harmonized at the EU level).

Those without legal status through immigration or asylum must, in principle, leave. The temporary protection Directive prioritizes voluntary return. While many Ukrainians might choose this if the situation improves, it’s uncertain if it will.

Enforced return is possible after the regime ends but must be “conducted with due respect for human dignity.” Member States “shall consider compelling humanitarian reasons preventing or making return unreasonable,” “take necessary measures” regarding the residence status of those who “cannot reasonably travel due to health reasons” (e.g., treatment interruption), and “shall not expel them as long as the situation persists.” Finally, Member States can decide whether children can complete their school year.

Comments

Concerns arose among asylum specialists when the Directive was adopted in 2001 that it might undermine the Refugee Convention by allowing Member States to establish a system with weaker protection standards instead of processing asylum claims. Since then, the EU has adopted two phases of asylum laws, somewhat improving protection levels in the second phase.

Despite initially welcoming those fleeing the Syrian civil war at the start of the 2015-16 “refugee crisis,” EU asylum law took a dark turn in practice: pushbacks from borders; collaboration with unreliable non-EU countries like Libya to prevent asylum seekers from reaching the EU, even if subjected to appalling treatment; detaining asylum seekers in inadequate conditions; a questionable, legally unaccountable quasi-agreement with Turkey; informal and unaccountable readmission arrangements; and a border agency facing mounting concerns about its conduct’s legality and morality.

This descent into a moral abyss reflects poorly on the EU and its members. However, the recent temporary protection decision showcases the EU at its best by waiving many fundamental precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunification conditions, and employment restrictions). While this is positive, it raises questions about the double standards applied to others fleeing war or persecution.

Assistance with and Guidance on Temporary Protection

• Commission guidance on implementing the temporary protection decision
• Council discussion paper on coordinating 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 Member States might revise their implementing measures now that the temporary protection Directive has been activated.
• 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 remove the statement that ‘Member States may delay considering Convention refugee status applications until temporary protection ends.’ While not explicitly stated in the Directive, this is the likely outcome if a Member State chooses not to allow simultaneous temporary protection and asylum-seeker statuses, effectively deterring applications while temporary protection is active.