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By Dr Meltem Ineli Ciger, Jean Monnet Fellow, MPC, EUI

Introduction

To respond to the large-scale displacement of Ukrainians fleeing the Russian invasion, the European Union (EU) unanimously adopted the Council Implementing Decision 2022/382 of 4 March 2022 and activated the Council Directive 2001/55/EC (Temporary Protection Directive). 4 March 2023 marked the first year of the Temporary Protection Directive’s implementation. Considering the temporary protection regimes cannot continue for more than three years (as per Article 4 of the Directive) it is high time to start planning what happens next. This post briefly outlines possible scenarios following the end of temporary protection of Ukrainians in the Union and discusses how temporary protection beneficiaries can access to durable solutions.

Temporary Protection Directive and termination of the protection regime

The Temporary Protection Directive foresees two main ways that temporary protection can come to an end. First, if the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement, the Council can terminate the temporary protection regime anytime. Nevertheless, the temporary protection regime must be terminated when the 3-year time limit is reached.

The Temporary Protection Directive does not offer much detailed guidance except the following on what happens when the regime ends:

1-    International protection applications of the temporary protection beneficiaries including those that were not considered during the temporary protection regime must be processed and decided by the Member States (Article 17 of the Temporary Protection Directive)

1-    The general laws on aliens in the Member States would apply with respect to temporarily protected persons (Article 20 of the Temporary Protection Directive)

2-    Member states must take measures to make sure the voluntary return of the protected persons is possible. It is emphasized that the decision of return should be taken in full knowledge of the facts relating to the country of origin. (Article 21 (1) of the Temporary Protection Directive)

3-    Member states must adopt measures to return former temporarily protected persons that do not have a right to stay in the Member State (MS are asked to consider any compelling humanitarian reasons which may make a return impossible or unreasonable in specific cases.) (Article 22 of the Directive)

4-    Member States should not expel persons who cannot be expected to travel in view of their state of health. (Article 23 of the Temporary Protection Directive) 

Scenario one: Russian invasion of Ukraine ends, and it becomes safe to return to Ukraine before 4 March 2025

If the Russian invasion ends and Ukraine becomes safe for temporary protection beneficiaries to return to at any point before 4 March 2025, the Council can adopt a decision with a qualified majority following a proposal from the Commission, to terminate the temporary protection regime. If this happens, the temporary protection beneficiaries who are afraid of persecution or torture, or inhuman or degrading treatment and punishment can apply for international protection. Asylum applications of the temporary protection beneficiaries that were not considered until the end of the temporary protection regime must be also processed and decided by the Member States. For Ukrainian nationals enjoying temporary protection status this would mean, if they decide to apply for asylum, their well-founded fear of persecution on one of the  Convention grounds as well as the risk of being subjected to serious harm will be examined on the basis of the situation in Ukraine. For third-country nationals who enjoyed temporary protection (non-Ukrainian citizens), their international protection claims will be decided in view of the situation in their country of origin.

For those who have no interest in applying for international protection but nevertheless wish to stay in the EU, EU laws and policies on migration and Member State laws on aliens would apply. If a previous temporary protection beneficiary has no legal reason to stay in the Member State territory, then he/she can be returned back to Ukraine given there is no risk of refoulement. Indeed, in such cases, the Temporary Protection Directive requires Member States to adopt measures to return the former temporarily protected persons nevertheless, consideration should be given to humanitarian reasons and persons who cannot be expected to travel in view of their state of health should not be removed.

Scenario two: Russian invasion of Ukraine does not end by 4 March 2025, or it ends, but the war leaves Ukraine in a state that is not conducive for safe and durable returns

Under the current text of the Temporary Protection Directive, the temporary protection regime should be terminated latest by the 4th of March 2025.  If the Russian aggression does not end by 4th March 2025, or it ends but leaves Ukraine in a state in which safe and durable returns are not possible or where returned persons would still be at risk of serious harm, this would necessitate a more complex response compared to the first scenario that I have explored.

Once temporary protection ends, as noted by Skordas (2022: Article 22, para 2), Member states can only return a previous protection beneficiary if “the person is not eligible to be legally admitted to the country for some other reason and the situation in the country of origin permits the safe and durable return”. This means return would not be a feasible option for the temporary protected persons. Considering resettlement will also not be an option for many, Ukrainians are left with only one durable solution, and that is local integration. How then local integration can be achieved for temporary protection beneficiaries? There are a number of ways to do this.

The first option can be to grant all temporary protection status holders (as of March 2023, this is around 5 million) a form of international protection. If a previous temporary protection beneficiary for some reason is not eligible for international protection, he/she can apply and be given other national protection statuses. Yet, if international protection is not granted as a group and on a prima facie basis (Ergin 2023, p. 354) and asylum applications are decided on an individual basis, this would create many challenges. Processing 5 million asylum applications would exacerbate the backlog in national asylum systems and can even lead to the collapse of asylum systems in some countries, such as Poland.

A second option is to promote access to routes to stay legally in the Member States for former temporary protection beneficiaries, though it is clear that not all Ukrainians will be able to qualify for these pathways. Member States can also grant citizenship or give permanent or time-limited residency for the former temporary protection beneficiaries, as a group, though this would depend on the Member States’ national laws and policies on citizenship and residence. Therefore, none of the options above truly offer a durable solution that includes all temporary protection beneficiaries and ensures a unified European approach to the access of the protected groups to durable solutions.

Long-term resident status to the rescue? A proposal

The Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents amended by Directive 2011/51/EU (LTR Directive) establishes that a person who has lived legally in an EU country for an uninterrupted period of five years, can obtain the status of long-term resident. Getting this status is dependent upon the person – having a stable and regular source of income, health insurance and, when required by the EU country, having complied with integration measures (Articles 4-6 of the LTR Directive, see also Thym, p. 540-642). The person applying for the status also must not be a threat to public security or public policy.

Long-term resident status provides its holders a permanent residence permit and equal treatment with nationals of the Member States in many regards, including but not limited to (a) access to employment, (b) education and vocational training, (c) recognition of professional diplomas, certificates and other qualifications, (d) social security, social assistance, and social protection, (e) tax benefits, (f) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing, (g) freedom of association and affiliation and membership of an organisation representing workers or employers, (h) free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security (Chapter II of the LTR Directive). Therefore, giving temporarily protected groups long-term resident status might enable them to integrate into the host society and make sure they can be protected from a forcible return while gaining access to crucial rights and entitlements without a time limit.

Article 3 of the LTR Directive, as of March 2023, does not apply to third-country nationals who are authorised to reside in a Member State on the basis of temporary protection. For now, temporary protection beneficiaries cannot apply for the LTR status, and time spent on temporary protection does not count as part of 5 years of required stay. However, the Commission adopted a Proposal for a Directive concerning the status of third-country nationals who are long-term residents (recast) COM/2022/650 final. As noted by the Commission, this proposal seeks to make it easier to acquire long-term resident status, in particular: by allowing third-country nationals to cumulate residence periods in different Member States in order to fulfil the requirement concerning the duration of residence; and by clarifying that all periods of legal residence should be fully counted, including residence periods as students, beneficiaries of temporary protection, or residence periods initially based on temporary grounds. This is a stark change compared to the current text of the LTR Directive and if the proposal is adopted, this will enable temporary protection beneficiaries that fulfil the requirements to acquire LTR status to get long-term residence in the EU. However, even if the proposal is accepted as is, there would be a number of barriers for Ukrainians to be granted this status.

Firstly, persons displaced to the Union after 24 February 2022 would only be staying in the EU for three years. Secondly, many Ukrainians go back to Ukraine to see their families and for other reasons, which means not all temporary protection beneficiaries’ stay would be continuous. Moreover, temporary protection beneficiaries especially women may not have a regular and stable income due to their care duties, especially in the absence of services such as accessible childcare in the Member States. Therefore, it is crucial to address the outlined challenges before the text of the Recast LTR Directive is adopted. These can be addressed with an additional article to be added to the current Recast LTR Proposal for instance requiring less stringent criteria to apply for the temporary protection beneficiaries including a requirement of a period less than 5 years, some criteria to make sure women who cannot earn a regular and stable income due to the care duties are not discriminated.

Conclusion   

If the Russian invasion of Ukraine does not end by March 2025, or it ends, but the war leaves Ukraine in a state that is not conducive for the safe and durable return of the protected groups, this means the temporary protection regime will be terminated automatically on 4 March 2025 since the time limit is reached. In this case, providing previously temporarily protected groups long-term resident status can give this population access to durable solutions. However, as mentioned below, there are several barriers for temporary protection beneficiaries to access this status as of March 2023. If these barriers are addressed in the new proposal for the Recast of the LTR Directive, this could make sure the positive outcomes of the temporary protection regime are retained and the commendable EU efforts to protect Ukrainians displaced by war continue. Having said that, if this proposal is followed and all temporary protection beneficiaries are given long-term resident status once the regime is terminated, it will be crucial to support Member States such as Poland and others which host considerably more temporary protection beneficiaries than others.

 

Note: A shorter version of this post is published at the MPC Blog on 9 March 2023. Please find it here.