The COUNCIL DIRECTIVE 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, was adopted after the conflict in the former Yugoslavia.
Its article 5, provides that, in case of a mass influx of displaced persons, a temporary protection can be implemented in all Members States.
Following the invasion of Ukraine by the military forces of the Russian Federation on February 24, 2022, thousands of Ukrainians have fled their country to reach a country in the European Union.
The United Nations High Commissioner for Refugees estimates that in the most pessimistic scenario, up to 4 million people could flee Ukraine.
The European Commission considers that “about half of the displaced persons are likely to be absorbed by the significant existing diaspora networks across the EU and will make use of legal migration opportunities, mainly but not only in “traditional” destination countries (Poland, Czech Republic, Germany, Italy and Spain), without putting pressure on the reception capacity of these countries. The other half, between 1.2 million and 3.5 million persons, might seek international protection in a two-year period” (Proposal for a COUNCIL IMPLEMENTING DECISION).
It is in this context that the Council of the European Union adopted, on 4 March 2022, an implementing decision noting the existence of a massive influx of displaced persons from Ukraine and establishing, consequently, temporary protection (COUNCIL IMPLEMENTING DECISION (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection).
The measures included in the Temporary Protection Directive and implementing national measures will therefore allow the Member States to manage the influx of displaced persons in a controlled and effective way with full respect for fundamental rights and international obligations.
In France, this protection is governed by the articles L581-1 to L581-10 of Code de l ’entrée et du séjour des étrangers (CESEDA).
Conditions
Ukrainians benefit from a visa-free regime. They can therefore circulate freely after having been admitted inside the European Union for 90 days. They will be able to join their family and friends and apply for temporary protection in the Member State of their choice.
Article 2 of the Council Decision specified the persons to whom the temporary protection applies:
- The Ukrainians nationals residing in Ukraine before the 24 February 2022 and displaced on or after 24 February 2022.
- The stateless persons and nationals of third countries other than Ukraine that benefited from international protection or equivalent national protection in Ukraine before 24 February 2022 and that where displaced on or after 24 February 2022.
- The foreigners, holding a valid permanent residence permit, who are unable to return in safe and durable conditions to their country or region of origin.
- The family members of the protected persons can benefit from the protection if the family was already present and residing in Ukraine before the 24 February 2022.
Member States have the option of extending temporary protection to other categories of persons displaced for the same reasons and from the same country.
Thus, the Commission encourages the protection of people who fled Ukraine shortly before the 24 February 2022.
The persons that can’t benefit from the temporary protection are admitted to the European Union for humanitarian reasons (without visa criteria, means of subsistence or valid travel document) to ensure their transfer to their country or region of origin.
Exclusions
The Directive allows Member States to exclude a displaced person from temporary protection where there are serious reasons for considering that the person:
- has committed a crime against peace, a war crime, or a crime against humanity
- has committed a serious non-political crime outside the Member State of reception prior to admission to that Member State as a person enjoying temporary protection.
- has been found guilty of acts contrary to the purposes and principles of the UN
The Directive also allows Member States to exclude a displaced person from temporary protection where there are reasonable grounds for regarding that person as a danger to the security of the host Member State or a danger to the community of the host Member State.
In France, the article L581-5 of the CESEDA defined the displaced persons that may be excluded from the protection:
“A foreigner may be excluded from the benefit of temporary protection in the following cases:
1° There are serious or concordant indications making it likely that he may have committed a crime against peace, a war crime, a crime against humanity or a serious common law crime committed outside French territory, before be admitted there as a beneficiary of temporary protection, or that he has been guilty of acts contrary to the purposes and principles of the United Nations;
2° Its presence in France constitutes a threat to public order, public security or State security.”
The period of protection
The duration of temporary protection is one year extended automatically by six-monthly periods for a maximum of one year.
The Commission may at any time propose to the Council to end the temporary protection based on the fact that the situation in Ukraine is such as to permit the safe and durable return of those granted protection.
The Commission may although propose that the Council extend the temporary protection by up to one year.
Acquired rights
The protected persons can :
- access to housing,
- access to social welfare assistance,
- access to medical or other assistance,
- benefit residency rights.
- Unaccompanied minors are entitled to legal guardianship and access to education.
In addition, protected persons have the right to travel within the Union for 90 days within a 180-day period.
Articulation with the others protection systems
If the Member States has a more favourable national temporary protection system, it can continue to apply it. On the other hand, if there is a less favourable system, the Member State must guarantee the additional rights provided for the directive.
In France, article L581-4 of the CESEDA clarifies the relationship between temporary protection and the asylum system and provides that:
“The benefit of temporary protection does not prejudge the recognition of refugee status under the Geneva Convention of 28 July 1951 relating to the status of refugees.
The benefit of temporary protection cannot be combined with the status of asylum seeker. A foreign national seeking asylum remains subject to the temporary protection regime while his application is being examined. If, following examination of the asylum application, refugee status or the benefit of subsidiary protection is not granted to the foreign national benefiting from temporary protection, the latter retains the benefit of this protection as long as it remains in force.”
Bibliography and useful links
COUNCIL DIRECTIVE 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, available on:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0055&from=FR
Proposal for a COUNCIL IMPLEMENTING DECISION establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC of 20 July 2001, and having the effect of introducing temporary protection, available on:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022PC0091&from=FR
COUNCIL IMPLEMENTING DECISION (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, available on :
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022D0382&from=FR
Temporary protection and guidelines for border checks, available in English, French, German and Ukrainian :
https://ec.europa.eu/commission/presscorner/detail/fr/fs_22_1472
Légifrance, articles L581 à L581-10 CESEDA :
https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070158/LEGISCTA000042772644/
