By Viktoryia Vaitovich
Two years after the first-ever triggering of the Temporary Protection Directive (TPD) – a collective and unanimous move to provide safety and immediate access to rights to those displaced by the war in Ukraine – the EU and its member states (MS) are entering the third and (possibly) final year of its validity, with questions still unanswered about the future of the six million people who are benefiting from the temporary protection status that it and similar national protection schemes across the EU and associated countries (EU+) provide.
Since the first weeks of the displacement, ECRE has closely followed the implementation of the TPD and its activation on 4 March 2022, compiling, analysing and regularly updating information on the measures put in place in response to the arrival of persons displaced from Ukraine, covering a range of aspects from rules on registration and re-entry, to access to rights and social support.
A very positive response – with some implementation challenges
While ECRE has strongly welcomed the use of the TPD and the overall positive EU approach to displacement from Ukraine, its in-depth analysis has highlighted implementation gaps that need to be addressed. These include the non- or delayed issuance of residence permits, which was aggravated by the lack of access to an effective remedy and clear information about the rights of beneficiaries of temporary protection (BTPs), as well as the lack of administrative decisions on the refusal of TP, and problems with narrow family definitions. The diverging policies on “pendular” movements of BTPs between EU MS and Ukraine (which are key to allowing people to keep links with family members and maintain property and land) were identified as one of the major TPD implementation gaps because they lead to premature withdrawal of TP status and, thus, the suspension of related rights and benefits.
Expanding its Asylum Information Database (AIDA), ECRE compared the situation pertaining to the access to socio-economic rights under TP across 22 European countries, outlining the issues of 1) limited access to long-term independent housing; 2) lack of facilitated procedures for recognition of qualifications and available training; 3) restrictions on access to education; and 4) limited access to healthcare and social welfare. Given the level of uncertainty people displaced from Ukraine were experiencing throughout 2023, ECRE also urged the extension of the TPD regime until March 2025.
The outlined gaps, which need to be addressed as a matter of urgency, do not undermine the overall success of the response, offering many lessons to be learned and good practices to be applied for future situations of displacement and with regard to other migrant groups. Direct access to the territory and the freedom of movement (which helped to avoid panic movements and enabled the possibility to choose the country in which to apply for TP), and inclusion through immediate access to rights are among multiple factors that contribute to the flexible, efficient and humane approach of the current response.
Lessons not yet applied
Whereas regrettably the negotiations on the New Pact on Migration and Asylum have not benefited from these lessons, the good practices from the operationalisation of the TPD can still be applied in the implementation phase of the new set of asylum laws, for example, in the area of direct provision of funding for local authorities and civil society organisations that assist displaced persons. Coordination shown through the Solidarity Platform should also be reproduced in the implementation of the solidarity mechanism envisaged under the new Pact rules.
What happens next?
In order to ensure continued protection of those in need and to maintain the legacy of one of the most successful responses to displacement by the EU so far, the upcoming months are critical for both EU policy-makers and EU MS governments. It is essential to develop as soon as possible a range of post-TPD options which would reflect Ukrainian perspectives and address the needs of various groups of displaced persons in full respect of their human rights. ECRE published its analysis of the main available options last month (available here) and urges action from the EU as time is running out.
The EU’s response in 2022 was effective because it was both rapid and collective, and led by an assertive European Commission (EC). There are more ambitious options available to the EU now, but they seem unlikely to develop. For example, the perspective for the development and adoption of a new EU legal instrument to allow for a collective uniform transition from TP (linked, for example, to the reconstruction of Ukraine and its EU integration process) is extremely bleak. Similarly, the potential of the revised EU long-term residence status, which initially presented a promising durable path given the EC proposal and the subsequent European Parliament report, is now being undermined given the direction of the ongoing negotiations and the likely exclusion of BTPs from the scope of the instrument by the Council of the EU.
This means that the management of the longer-term post-TP options is being left largely in the hands of national governments, for example, through enabled transitioning to employment-based, or humanitarian and other protection-based statuses.
In this context, there is mounting uncertainty about what happens when the TPD expires in 2025. There are ongoing debates about whether it is possible to extend it for another year (and potentially then again). The argument has been made that the wording of the Directive does allow for this option.
Assuming it is legally possible, then a proposal needs to be launched urgently; the current momentum should be used under the Belgian Presidency of the Council of the EU to counter this uncertainty. In the short term, in addition to the potential extension of the TP regime for an additional year, a clear framework and guidance need to be prepared for more durable solutions in coordination with those affected by the displacement. Belgium’s presidency will be followed by Hungary’s and that EU MS’ commitment to finding a solution can be questioned. The current EU legislator needs to overcome delaying factors such as the upcoming European elections in June 2024 and the outgoing EC. Those intra-EU developments are also influenced by broader geopolitical tensions and the Ukrainian government’s valid demographic concerns.
This longer-term EU-level coordination is particularly important due to the fact that not all of the EU+ states will be able to manage a smooth transition from the TPD to statuses in national law by means of the available national tools. In some EU+ countries, there is very limited availability of other statuses in national law. In others, there are extensive administrative barriers to the direct transfer from the TPD to national status (consider the case of Germany, currently hosting more than 1.2 million people under the TPD with significant obstacles to transfer to either work or humanitarian statuses, and legal questions about the possibility of doing so). In addition, relying on other statuses can also present a number of risks, such as precarity of short-term permits, risk of exploitation in case of dependency on employment-based statuses, as well as a risk of irregularity for many of those not falling within the scope of available frameworks.
Moreover, placing the major emphasis on the national level in the management of the transitioning out of the TP regime would penalise those EU MS that are hosting the largest numbers of persons displaced from Ukraine, and particularly those states without national humanitarian statuses at their disposal.
For these reasons, the immediate steps require promoting EU-wide common solutions, notably the extension of the TPD and not excluding longer-term options (new residence permits, the Long-term Residence Directive, etc.), while at the same time, the national governments should individually develop backup plans and alternative statuses in the event that the EU struggles to manage even a one-year extension of the current TP regime.
Viktoryia Vaitovich is a Policy Officer at ECRE. She leads the organisation’s advocacy work on the EU’s response to the displacement from Ukraine.