The Temporary Protection Directive: A Crucial Element Missing from the European Migration Agenda

Meltem Ineli-Ciger, PhD Candidate, University of Bristol Law School[1]

The European Union’s Temporary Protection Directive came into effect in 2001, marking the first EU directive on international protection after the Treaty of Amsterdam’s implementation in 1999. This directive provides a practical and streamlined structure for managing mass arrivals of displaced individuals, standardizing and harmonizing the protection they receive. Despite this, the directive has never been put into practice. While the Council contemplated activating it in the early 2000s due to increasing asylum seekers from Iraq and Afghanistan, no action was taken (Klug). Similarly, the substantial influx of asylum seekers escaping conflicts during the Arab Spring, which strained EU border states’ asylum systems, did not trigger the directive’s implementation (Nascimbene and Di Pascale). Even with the recent migrant crisis in the Mediterranean, the European Agenda on Migration makes no mention of the Temporary Protection Directive. This piece contends that the directive could have and still can be utilized as a component of a more effective strategy for handling the continuous flow of diverse groups of migrants crossing the Mediterranean, and it should be integrated into the EU Agenda on Migration.

Reasons for the Directive’s Non-Implementation Over the Past 14 Years

The Temporary Protection Directive includes an activation mechanism requiring the Council to formally recognize a mass influx situation through a qualified majority vote (Article 5(1)). A Member State can initiate the activation process by requesting that the Commission propose activating the directive. This proposal, however, requires discussion and approval by the Council with a qualified majority (recital 14 and Article 5). While the European Commission holds the sole authority to propose activation and identify specific groups for temporary protection, the Council ultimately determines which groups receive it (Arenas).

According to the directive, a mass influx constitutes “the arrival in the Community of a large number of displaced persons, who came from a specific country or geographical area, whether the arrival in the Community was spontaneous or aided, for example through an evacuation programme” (Article 2(d)). While the presence of a mass influx is crucial for activating the directive, the phrase “arrival of a large number of displaced persons” used to describe it is rather ambiguous (Arenas). However, the Commission’s proposal sheds light on the definition of “mass influx” stating:

“Influx must be from the same country or geographical area […] the number of people must be substantial[…]the gradual arrival of asylum-seekers, refugees or displaced persons from a single country or region of origin cannot in itself justify the introduction of such temporary protection. However, a point may come at which the movement of people, gradual at the outset, intensifies in such a way that it becomes massive and the normal asylum system is unable to absorb the flow.”

Considering this statement and the directive’s initial goal of “avoiding a total bottleneck in national asylum systems,” the inability of national asylum systems to accommodate large groups of individuals seeking refuge is a significant indicator of a mass influx situation. The Commission’s proposal acknowledges the possibility of a cumulative influx, meaning a gradual arrival of individuals seeking refuge, which can overwhelm national asylum systems and potentially constitute a mass influx situation.

Despite the interpretations drawn from Article 2 of the directive and the Commission’s proposal, the directive has not been activated despite situations where the asylum capacities of Greece, Italy, and Malta have been overwhelmed by asylum seekers from Iraq, Syria, and North African states (Nascimbene and Di Pascale). Two main reasons explain this lack of implementation. First, achieving a qualified majority vote within the Council proves challenging when a situation primarily affects a limited number of Member States. Second, many Member States believe that activating the directive might unintentionally encourage more migrants to seek entry into the EU (Klug and Ineli-Ciger). The directive’s non-implementation thus far highlights that its activation is primarily a political process contingent upon agreement from a majority of Member States.

Applicability of the Temporary Protection Directive to Mixed Migration Flows

Article 2 of the Temporary Protection Directive outlines that individuals fleeing armed conflict, violence, and systematic human rights violations are eligible for protection. Additionally, the Commission’s proposal identifies the directive as a tool to address large-scale arrivals of “asylum seekers.” Within mixed migration flows, a significant portion of individuals would qualify for protection under Article 2. Therefore, if the Council determines that the arrival of these mixed flows constitutes a mass influx situation, there is no legal barrier to invoking the directive for managing mixed flows or safeguarding specific subgroups, such as those escaping armed conflict, violence, or systematic human rights violations.

Determining if Mixed Flows Arriving by Sea in Europe Constitute a Mass Influx

Every year, thousands perish attempting to reach European shores via the Mediterranean Sea. The UNHCR reported that “[i]n mid-April 2015, 800 people died in the largest refugee shipwreck on record, highlighting a staggering increase in refugees and migrants dying or missing at sea,” and [vii] the number of refugees and migrants arriving by sea in Europe reached 219,000 in 2014 (137,000 as of June 2015). It is vital to recognize that these individuals are not solely economic migrants; many are escaping war, violence, and human rights abuses. While these figures might seem small compared to the two million Syrians sheltered in Turkey, it is important to consider the reception and asylum capacities of Greece and Italy.

The strain on the Greek asylum system and its ramifications are evident in the judgments of N.S and M.S.S. v. Belgium and Greece. More recently, in Tarakhel v. Switzerland, the ECtHR ruled that while the situation in Italy differs from Greece, it raises significant concerns regarding the current capacity of the Italian asylum system.[viii] These judgments demonstrate that the lack of solidarity within the EU, coupled with the uneven asylum distribution criteria outlined in the Dublin Regulations, has intensified the strain on nations like Greece, Italy, and Malta. Consequently, the reception conditions and quality of protection offered to asylum seekers in these countries have deteriorated.

EU border states are facing continuous pressure and have requested assistance from the EU in addressing these arrivals. However, the EU has struggled to develop and execute a comprehensive plan to guarantee the safety of irregular migrants and refugees arriving by sea. Certain Member States are unable to provide those seeking refuge with adequate reception conditions as stipulated by EU law. Considering the large numbers of individuals arriving irregularly by sea each month seeking refuge in Italy and Greece, coupled with these countries’ inadequate reception and asylum capacities, it is evident that a mass influx situation exists. Based on these factors, it is reasonable to classify the “mixed flows” arriving by sea in Europe as a mass influx.

Benefits of Implementing the Temporary Protection Directive for Managing Mixed Flows Arriving by Sea

Implementing the Temporary Protection Directive to manage the irregular arrival of “mixed flows” offers several advantages: flexible eligibility criteria and broad personal scope, consistent and standardized protection for temporarily protected individuals, and a mechanism for responsibility sharing.

Considering the categories of individuals eligible for protection under the directive—refugees and those fleeing armed conflict, violence, and human rights violations—the directive can safeguard a wide range of individuals arriving in the EU during a mass influx. Therefore, activating the Temporary Protection Directive allows for the protection of refugees and those fleeing armed conflict, violence, and human rights violations as a group for a period of up to three years.

The directive grants temporary protection status, which includes temporary residence permits, access to emergency healthcare, shelter, social benefits, education for minors, limited access to the labor market, and a restricted right to family reunification. These entitlements represent a higher standard of protection compared to what asylum seekers and migrants currently receive in Greece and Italy (see MSS and Tarakhel). Rather than implementing temporary protection under a unified framework, a considerable number of Member States have chosen to establish national temporary protection statuses. A European Migration Network (EMN) study reveals that Austria, Belgium, Greece, Ireland, Italy, Poland, and Spain provide temporary protection under national schemes. These national statuses exhibit significant disparities, particularly in the level of rights granted to beneficiaries. The EMN study also indicates that the standard of protection under these national schemes often falls short of the standards set by the Temporary Protection Directive. Consequently, implementing the Temporary Protection Directive can enhance the protection afforded to those fleeing armed conflict, violence, and human rights violations in Europe.

Positively, the Temporary Protection Directive incorporates a burden-sharing mechanism. Article 25 permits the transfer of beneficiaries between Member States based on a voluntary offer from a receiving state and contingent on the consent of those being transferred. Under Article 25, the Council is empowered to take appropriate action and provide additional support to disproportionately affected Member States when the declared capacity of a state is surpassed due to the number of arrivals. In this regard, the Council has the authority to implement any necessary burden-sharing measures. The effectiveness of the directive’s burden-sharing mechanism depends heavily on the measures adopted by the Council and their implementation by Member States. However, if the Council establishes measures that ensure equitable burden-sharing, the directive’s mechanism could potentially offer a fairer and more efficient system compared to the Dublin system. The Temporary Protection Directive can therefore lead to more effective responsibility-sharing among Member States.

Conclusion

Many experts believe that implementing the Temporary Protection Directive could have and still can enhance the response of European states and the EU to the refugee crises stemming from Iraq and Syria, while simultaneously providing better protection for Iraqis and Syrians fleeing war and violence (Akram et al.; Orchard et al.). In line with this perspective, this piece argues that implementing the Temporary Protection Directive can help Member States manage “mixed flows” more effectively and provide better protection to those requiring international protection within these flows arriving by sea in Europe. While the directive alone cannot solve all issues related to mixed flows, it can be a valuable part of the solution and offer significant benefits to those seeking refuge in the EU.

Considering the added value of implementing the Temporary Protection Directive in addressing mixed flows arriving by sea in Europe, this piece advocates for its inclusion in the EU Agenda on Migration.

[1] This post builds on M. Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean’ in C. Bauloz, M. Ineli-Ciger, S. Singer, V. Stayanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill/ Martinus Nijhoff Publishers 2015) 225.