A Directive used for the first time: temporary protection, Versailles and the war refugees

The Council adopted Implementing Decision (EU) 2022/382 on 4 March 2022. The Decision establishes "the existence of a mass influx into the Union of displaced persons" from Ukraine and introduces temporary protection[1]. The legal basis is Article 5 of Council Directive 2001/55/EC of 20 July 2001, which the Council had never applied in the two decades since its adoption[2]. The Commission had proposed the activation on 2 March[3]. The Decision entered into force on the day of its publication in the Official Journal, 4 March 2022[1]. One week later, the Heads of State or Government meeting informally at Versailles declared: "We offer temporary protection to all war refugees from Ukraine"[4]. This Commentary explains what the status gives, where its limits lie and what the Member States must now organise.

What the Decision does

Recital 5 of the Decision records that more than 650,000 displaced persons had arrived from Ukraine by 1 March 2022, through Poland, Slovakia, Hungary and Romania. Recital 6 estimates that between 2.5 and 6.5 million persons could be displaced, of whom 1.2 to 3.2 million might seek international protection[1]. The Directive was written in 2001 for exactly this situation, after the displacements from Kosovo, and the Member States chose for twenty years to leave it on the shelf. The choice to use it now is the right one. An individual asylum procedure for several million people would overwhelm the asylum systems of the frontline Member States within weeks. Temporary protection gives a status at once and suspends the individual examination without removing the right to apply for asylum.

Article 2(1) of the Decision applies temporary protection to three groups displaced from Ukraine on or after 24 February 2022: "Ukrainian nationals residing in Ukraine before 24 February 2022", stateless persons and third-country nationals who benefited from international protection or equivalent national protection in Ukraine, and the family members of both groups[1]. Article 2(2) provides that Member States shall apply either the Decision or adequate protection under national law to stateless persons and third-country nationals who held a permanent residence permit in Ukraine and cannot return safely. Article 2(3) allows Member States to extend the Decision to other legally resident persons who cannot return[1]. Recital 21 fixes an initial period of one year, extended automatically by six-month periods for a maximum of one further year, and the Commission may propose to the Council that protection end or be extended[1].

Recital 16 adds a provision that distinguishes this activation from any asylum scheme. Ukrainian nationals travel visa-free and may move within the Union for 90 days after admission, so they may choose the Member State in which they wish to enjoy their rights and join family and friends in existing diaspora networks[1]. The Directive confers "harmonised rights across the Union", and a person who holds a residence permit in one Member State may exercise those rights only in that State[1]. Under the Directive, those rights include a residence permit, access to employment, access to suitable accommodation, social welfare and medical care, and access to education for persons under 18[2].

Two Member States stand apart. Recital 25 states that "Ireland is bound by Directive 2001/55/EC" and takes part in the Decision. Recital 26 states that "Denmark is not taking part in the adoption of this Decision"[1].

What Versailles added, and what it did not

The Versailles Declaration of 11 March records that Ukraine applied for membership of the Union on 28 February and that the Council has invited the Commission to deliver its opinion. It states that "Ukraine belongs to our European family"[4]. The Declaration commits the Union and its Member States to continue humanitarian, medical and financial assistance to refugees and to the countries that host them[4]. It also commits the Member States to increase defence expenditure substantially and to "phase out our dependency on Russian gas, oil and coal imports" as soon as possible, and it asks the Commission for a RePowerEU plan by the end of May[4].

The Declaration does not change the law on temporary protection. Three limits of the Decision therefore remain. The first limit is the gap in Article 2. Third-country nationals who were in Ukraine on short-term permits, students among them, fall under neither Article 2(1) nor Article 2(2), and their fate depends on Article 2(3), which is optional. The second limit is the absence of a distribution key. The Directive's chapter on solidarity rests on voluntary offers by Member States. Recital 16 leaves the choice of Member State to the displaced person, which is humane and sensible, and which also means that the countries with the largest Ukrainian communities will carry the largest share without any formal transfer mechanism. The third limit is time. One year, renewable twice by six months, ends in March 2024 at the latest unless the Council decides otherwise, and the people concerned will have found jobs, schools and homes by then.

The people who cross the Polish border this week are, in large majority, women and children, and the children will sit in European classrooms from next month. How the Member States apply the right to education under the Directive will decide whether these children lose a school year or keep one.

We recommend that every Member State notify the Commission by the end of March of the categories it has chosen to cover under Article 2(3) of the Decision, so that a third-country student in Kharkiv knows in which States the status is available.

We recommend that the Commission use the monitoring task that Article 3 of the Decision gives it to publish, every month, the number of residence permits issued by each Member State, since no distribution key exists and only transparency can replace one.

We recommend that the Council instruct the Commission to prepare, before the first anniversary of the Decision, a proposal on the transition of beneficiaries to ordinary residence statuses, so that the end of temporary protection does not become a mass loss of status.

We recommend that Member States apply the right to education for minors from the first day of registration, with language support, and that they recognise Ukrainian school certificates for the school year 2021 to 2022.