Blog post by Professors Elspeth Guild (QMUL, UK) and Kees Groenendijk (Radboud University, NL)

On 28 September 2023, the EU Council reached political agreement to extend the Ukraine Temporary Protection (TP) Scheme to 3 March 2025. The scheme was established on 4 March 2022 (by a Council Decision) applying to all Ukrainians and third-country nationals who cannot safely return to their countries who left Ukraine on or after 24 February 2022, the date of the Russian full invasion of the country. The legal basis is a directive of this name part of the Common European Asylum System under Article 78 TFEU. It continues to apply to all residents of Ukraine who may leave that country before the end of the scheme in 2025. Initially, the scheme was opened for 12 months and, on the basis of Article 4(1) of Directive 2001/55, automatically renewed until 4 March 2024. Now the Commission has taken the decision to propose extending the scheme for a final third year, the maximum permissible under the directive.

There was no obligation on the Council to extend the scheme so early. However, the Commission argues that Member States should have the ‘possibility to undertake in a timely manner the necessary administrative and legal steps (such as renewal of residence permits) to prepare for the prolongation of temporary protection’ (p. 3). The Commission’s communication gives two reasons for the extension: first a UNHCR position paper on voluntary returns to Ukraine in September 2023, and that of ECRE an NGO with a membership of 59 civil society actors in Europe, in its ECRE statement June 2023 calling for an extension of the scheme. It is refreshing to see a Commission proposal based substantially on the opinions of UNHCR and ECRE. It is a precedent which is worth becoming a norm. The extension also demonstrates the EU’s commitment to Ukrainian displaced persons already in the EU and its determination not to close the door for more people to come if circumstances in Ukraine become untenable.

On the other hand, if the situation in Ukraine would improve to such an extent as to permit the safe and durable return of those granted temporary protection, according to Article (6)(1)(b) of the directive, the Commission may propose to the Council to end the protection scheme ‘at any time’ before 4 March 2025.

Indeed, as regards numbers, the Commission states in the explanatory memorandum that there are 4.1 million persons registered in the Member States as beneficiaries of international protection (UNHCR figures are somewhat different). But it also notes that according to IOM, there are 5.1 million people displaced within Ukraine while UNHCR states that 17 million in Ukraine are in need of humanitarian assistance (COM(2023)546, p 3). The inference is that if the war goes badly for Ukraine there may be many more people who will arrive in the EU. One of the requirements for a TP scheme and its extension is the anticipation of a mass influx. But this is the second extension and according to the directive (Article 4(2)) a TP scheme cannot last more than three years. This means the cut-off date is 3 March 2025. The directive is designed to relieve national asylum authorities of the need to consider the asylum applications of individuals who arrive as a result of a mass influx. Thus, it is founded in administrative convenience. As the Commission states, it allows Member State asylum systems not to be overwhelmed by applications (p 3). Yet, as the 2023 political crisis of asylum seekers in Lampedusa, Italy is unfolding, it seems clear that many EU Member States have no appetite to assist Italy with relocation of asylum seekers. Many base their reluctance on the burden on their administrations of existing asylum caseloads – just 880,000 asylum seekers made applications in the EU in 2022. One can only agree that adding 4.1 million more asylum seekers (the Ukraine TP beneficiaries) to the existing caseload would be problematic.

The Ukraine TP scheme is based on the principle of immediate acquisition of residence and socio-economic rights for everyone within the personal scope of the scheme. The rights must be provided immediately by the Member State to which the beneficiary makes the demand. They include immediate provision of residence permits, permission to work and be self- employed, access to housing, education for those under 18 years old, medical assistance and social assistance. Further, the Member States agreed in 2022 not to apply Article 11 of the directive which requires TP beneficiaries to remain in first Member States in which they arrive. The Commission notes in the explanatory memorandum that many of the TP beneficiaries were likely absorbed into ‘significant diaspora networks’ (p 6) in both tradition destination states: Poland, Czechia, Germany but also Italy and Spain; in the latter two cases no doubt with stop overs in other Member States. There has been very substantial EU funding made available to Member States to assist with the costs (€17 billion alone from an underspend on the Cohesion’s Action for Refugees in Europe fund 2014-2020 – one wonders why, over this period which covers the arrival of 2 million Syrians, there was such a substantial underspend, p. 6), and more is to come. There have been varying degrees of economic integration of the Ukrainian TP beneficiaries, of which more than 70% are women and almost 20% children. What does seem to be the case is that the majority have tertiary education and will undoubtedly wish this for their children as well.

The extension of the scheme with a third year also applies to third-country nationals with lawful residence in Ukraine at the time of the Russian invasion to whom Member States voluntarily extended temporary protection as provided for in the directive in accordance with Article 7(1) of the directive or Article 2(3) of the Council Implementing Decision.

The first (and only) experience of using the TP directive has been so positive that the Commission has withdrawn its proposal to abolish it which was included in the 2020 New Pact for Migration and Asylum. The Commission insists on the importance of a common European response to the arrivals of persons in need of protection from Ukraine. As we have highlighted elsewhere, it is imperative that at the end of the TP scheme, there is a similar EU wide mechanism for providing security of residence to TP beneficiaries. Our preferred option is a qualified form of free movement and residence which parallels free movement for EU citizens. An important advantage of this option is that it would allow Ukrainian nationals to return to Ukraine for longer periods to see whether they can settle there again, without the risk of losing their residence rights in the EU. The prospect of coming back to the EU in case the settlement in Ukraine fails will assist in making the decision to return. The non-binding clause in Article 21(1) of the directive (“The Member States may provide for exploratory visits.”) is clearly insufficient to produce this effect. The EU legislator has yet to indicate its preference. However, the early decision to extend the current TP scheme in order to provide clarity and security to its beneficiaries augurs well for the longer term situation of these people. Clearly, the need to establish a more permanent residence solution for current (and possibly future) TP beneficiaries is key.

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.