Temporary Protection under EU Law: Some Reflections on Its Application to Non-Ukrainians fleeing the Russo-Ukrainian War

Rita Neves Rodrigues/ December 27, 2024/

By Rita Neves Rodrigues

Edited by Veronica Corcodel and Tatiana Morais

Abstract

This blog post examines the implementation of the Temporary Protection Directive in the context of the Russo-Ukrainian war, more specifically as it pertains to non-Ukrainian third-country nationals and stateless persons. It highlights key discrepancies in national implementation and their impact on non-Ukrainians, advocating for their greater inclusion.

Keywords: Temporary Protection Directive; Council Implementing Decision; non-Ukrainian third-country nationals and stateless persons.

  1. Introduction: Understanding the Temporary Protection Directive (TPD)

Temporary Protection stands as an extraordinary measure offering prompt and provisional protection to individuals displaced from non-European Union (EU) countries who cannot safely return home. In response to Russia’s military invasion of Ukraine, the European Union activated the EU Temporary Protection Directive (TPD) on March 4th, 2022, for the first time.[1]

The Directive provides that “temporary protection” is designed to provide immediate protection to either a “mass influx” or an “imminent mass influx” of displaced individuals who are unable to return to their country of origin[2], particularly if there is a risk of the asylum system being unable to handle this influx effectively (Article 2 (a)).[3] This measure aims to ease pressure on asylum systems by allowing beneficiaries to bypass formal asylum procedures. Those granted temporary protection are expected to gain immediate access to residence permits, employment opportunities, educational resources, healthcare services, appropriate housing, social assistance, and necessary means of sustenance throughout the protection, for up to three years. Freedom of movement within the EU is not as such included in the Directive, but in the Russo-Ukrainian context Member States agreed not to apply Article 11 of the Directive, according to which a beneficiary of temporary protection is subject to a ‘take back’ procedure if “remain(ing) on, or, seek(ing) to enter without authorisation onto, the territory of another Member State” during the period of temporary protection.[4] This meant that freedom of movement was granted to beneficiaries of temporary protection in the Russo-Ukrainian context. This has marked an important difference with the mobility restrictions generally applied to asylum seekers.[5]

The Council Implementing Decision extended temporary protection to some non-Ukrainian residents of Ukraine but excluded many others, allowing States, however, the discretion to include them if they wished to do so.[6] The blend of mandatory and permissive provisions in both the Directive and the Council Implementing Decision has led to discrepancies in national implementation, raising concerns about differential treatment and potential discrimination.[7] This blogpost highlights some of these discrepancies. Many critics have pointed to the racialized disparities in the treatment of individuals displaced by the Russo-Ukrainian war compared to those fleeing conflicts in the Middle East and Africa. [8] While these concerns are significant, the focus here is mainly on the discrepancies within the group of individuals displaced by the Russo-Ukrainian war itself.

  • Discrepancies in the Protection Provided

According to the Council Implementing Decision, apart from Ukrainian nationals residing in Ukraine before 24 February 2022, the following categories were entitled to temporary protection: “stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine” before 24 February 2022, as well as the family members of these persons or of Ukrainian nationals.[9] Other stateless persons, or nationals of third countries other than Ukraine, legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit, were also entitled to protection if “unable to return in safe and durable conditions to their country or region of origin”, but not necessarily the temporary protection under EU law. Another “adequate protection under (…) national law” is allowed under the Council Implementing Decision for this category of persons.[10] Member States may choose to extend temporary protection to “all other stateless persons or nationals of third countries other than Ukraine residing legally in Ukraine who are unable to return” safely to their country or region of origin.[11] The Decision referred to the example of students or workers on a short-term basis in Ukraine at the time of the events. Moreover, it provided that Member States can extend temporary protection to additional categories of persons, if these are displaced for the same reasons and from the same country or region of origin.

According to official reports before Russian invasion, approximately 5000 refugees and asylum seekers had found refuge in Ukraine.[12] Additionally, in 2021, more than 75 thousand residing in Ukraine were international students, primarily hailing from India, China, and Morocco.[13] When the directive was activated, questions arose about the fate of these groups.

According to Eurostat, on 31 October 2024, 4.2 million persons fleeing the Russo-Ukrainian war had a temporary protection status in the EU.[14] Only a few countries opted to extend temporary protection to groups not mandated by the Council Implementing Decision, and some even disadvantaged non-Ukrainians who were entitled to such protection under its provisions. [15]      

It is widely acknowledged that the Temporary Protection Directive has been highly effective in granting protection and access to rights for many people fleeing Ukraine, however many non-Ukrainians, including refugees and asylum seekers, have not received equivalent support.[16] Katharine Woolrych, advocacy officer at HIAS Europe, and Nataliia Krynytska, from Rights 2 Protection, have noted that “Some of the people we spoke to waited up to five months to receive temporary protection, while Ukrainian nationals [were] issued documents on the same day in at least 17 countries”.[17] The report reveals that non-Ukrainians have also struggled with housing, healthcare, and freedom of movement.

The disparities were evident not only among refugees and asylum seekers but also among foreign students, for whom Member States were given discretion on whether to extend temporary protection or not.[18] At the time of the invasion, Ukraine was home to over 70,000 foreign students.[19] When attempting to cross the border, many of them experienced racialized treatment. According to an African medical student, “they were told to stand aside as the bus drove off with only Ukrainian nationals on board”.[20] Another foreign student stated that “they are being very racist with us at the border. They tell us that Ukrainian citizens have to pass first while telling foreigners to stay back”.[21] It is important to note that, although the Council Implementing Decision allowed the exclusion of international students from temporary protection, it also indicated that such persons were to be admitted into the EU  “on humanitarian grounds”, even without valid travel documents, “to ensure safe passage with a view to returning to their country or region of origin”. In this sense, the Decision itself gave no grounds for rejecting international students at the border.

In contrast to the broader European response, on March 11, 2022, Portugal extended its temporary protection to non-Ukrainian third-country nationals and stateless persons with a valid permanent residence permit, a temporary residence permit, a long-term visa for obtaining such permit, and who were unable to return to their country or region of origin in a safe and sustainable manner.[22] However, in December 2022, Portugal redefined the personal scope of temporary protection, excluding non-Ukrainian third-country nationals and stateless persons with a temporary residence permit, or a long-term visa for obtaining such permit.[23] This is regrettable, especially since the previous extension was recognized as a “promising practice” by the European Union Agency for Fundamental Rights (FRA)”.[24]

Several European universities extended offers of admission to international students displaced by the Russo-Ukrainian war, offering a glimmer of hope amid the turmoil. However, it has been reported that these students were nevertheless marginalized, since scholarship opportunities were predominantly allocated to Ukrainian students.[25] This unequal treatment aligns with broader patterns of neglect and systemic failures in protecting certain racialized groups, perpetuating their vulnerabilities instead of providing effective protection.

  • Concluding Remarks

Portugal provides a compelling – though short-lived – example of how national legal frameworks can be both inclusive and responsive to the needs of displaced persons. Although the personal scope of the temporary protection was restricted in December 2022, the previous extension, also praised by the European Union Agency for Fundamental Rights, shows that it is possible – and necessary – to go beyond the minimum legal requirements to ensure the protection of all those displaced by the Russo-Ukrainian war and who are unable to return to their country or region of origin in a safe and durable manner.

As the TPD draws closer to its end, challenges faced by third-country nationals are set to intensify and many now confront the looming uncertainty of their future status and rights. Considering that in addition to Ukrainians, certain groups of third-country nationals were and continue to be affected, it is essential to guarantee equality for each affected person. The uncertainty and lack of awareness regarding available options after the termination of TPD-related status can impact individuals’ life plans and their commitment to integration in host communities. As the EU develops post-TPD strategies, it should ensure equality and long-term prospects for both Ukrainian and non-Ukrainian nationals fleeing the Russo-Ukrainian war.

How to cite this Blog Post:

Rodrigues, Rita Neves. “Temporary Protection under EU Law: Some Reflections on Its Application to Non-Ukrainians fleeing the Russo-Ukrainian War”. NOVA Refugee and Migration Clinic Blog, December 2024, available at https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=temporary-protection-under-eu-law-some-reflections-on-its-application-to-non-ukrainians-fleeing-the-russo-ukrainian-warhttps://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=temporary-protection-under-eu-law-some-reflections-on-its-application-to-non-ukrainians-fleeing-the-russo-ukrainian-war


[1] Gemma Woods and Meron Yared ‘Implementing the Temporary Protection Directive’ (2023) 72 Forced Migration Review; Georgios Milios ‘The Activation of The Temporary Protection Directive For People Displaced From Ukraine As A Consequence Of The War’ (2022) 44 Revista Electrónica de Estudios Internacionales.

[2] Joana Abrisketa Uriarte, ‘The Activation of the Temporary Protection Directive 2001/55/CE for Ukrainian Refugees: A Demonstration of its Uniqueness’ (2023) 11 Peace & Security-Paix et Sécurité Internationales (Euromediterranean Journal of International Law and International Relations 5.

[3] 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 [2001] OJ L 212 (Temporary Protection Directive).

[4] Temporary Protection Directive (TPD) 2001/55/EC. 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 [2022] OJ L 71, recital 15.

[5] Steve Peers and Nicolas Rogers, EU Immigration and Asylum Law. Text and Commentary (Immigration and Asylum Law and Policy in Europe) (Martinus Nijhoff Publishers, 2006); Steve Peers and others, Asylum Law (Text and Commentary) Volume 3: Visas and Border Controls. (Brill Nijhoff, 2015)

[6] Maud Jullien et al., ‘Fate of Ukraine’s Foreign Students. Tracing non-white students who fled invasion but faced Europe’s hostility’ (2022) Lighthouse Reports, available at <https://www.lighthousereports.com/investigation/how-the-eu-failed-ukraines-international-students/>  accessed 13 November 2024. 

[7] Camila Aby-Azar Façanha, ‘The EU Temporary Protection Directive. The Directive in Practice – An analysis of its implementation to protect those fleeing the war in Ukraine’ (Master thesis, Universidade Católica Portuguesa, 2023), available at <https://ciencia.ucp.pt/en/studentTheses/the-eu-temporary-protection-directive> accessed 13 November 2024; Janine Prantl and Ian Mathew Kysel, ‘Generous, but Equal Treatment? Anti-Discrimination Duties of States Hosting Refugees Fleeing Ukraine’ (2022) EJIL:Talk! Blog of the European Journal of International Law, available at <https://www.ejiltalk.org/generous-but-equal-treatment-anti-discrimination-duties-of-states-hosting-refugees-fleeing-ukraine/> accessed 13 November 2024.

[8] Veronica Corcodel ‘Migração: dois pesos e duas medidas para responder “à crise dos refugiados”’ (26 March, 2022) Público, <https://www.publico.pt/2022/03/26/opiniao/opiniao/migracao-dois-pesos-duas-medidas-responder-crise-refugiados-2000174> accessed 13 November 2024. Veronica Corcodel and Dimitra Fragkou, ‘Europe’s Refugee “Crises” and the Biopolitics of Risk’ (2024) 15(2) European Journal of Risk Regulation 416. Nabil Sanaullah ‘Racist Double-Standards persist at EU/Ukraine Borders and Beyond’ (2022) ENAR Press Release, < https://www.enar-eu.org/racism-borders-eu-ukraine/> accessed 13 November 2024. See however Achilles Skordas, ‘Temporary Protection and European Racism’ (2022), ASILE Forum on the EU Temporary Protection Responses to the Ukraine War, <https://www.asileproject.eu/temporary-protection-and-european-racism/> accessed 13 November 2024.

[9] Council Implementing Decision (EU) 2022/382, Article 2.

[10] Ibid.

[11] Ibid, Article 2(3).

[12] HIAS and Right to Protection, ‘Asylum Seekers and Refugees in Ukraine Addressing Protection Risks During Wartims’ (2023),< https://hias.org/publications/asylum-seekers-and-refugees-ukraine/ > accessed 13 November 2024.

[13] Khatia Shamanauri ‘After fleeing war in Ukraine, many African and Asian students are relocating to Georgia’ (29 June 2023), Equal Times, < https://www.equaltimes.org/after-fleeing-war-in-ukraine-many >, accessed 7 January 2025

[14] European Commission, ‘Temporary protection for persons fleeing Ukraine – monthly statistics’ (2024), < https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Temporary_protection_for_persons_fleeing_Ukraine_-_monthly_statistics> accessed 13 November 2024.

[15] Janine Prantl and Ian Mathew Kysel, ‘Generous, but Equal Treatment? Anti-Discrimination Duties of States Hosting Refugees Fleeing Ukraine’ (2022) EJIL:Talk! Blog of the European Journal of International Law, <https://www.ejiltalk.org/generous-but-equal-treatment-anti-discrimination-duties-of-states-hosting-refugees-fleeing-ukraine/> accessed 13 November 2024; José Díaz Lafuente ‘La Activátion de La Directiva de Protección Temporal ante la Invásion Rusa de Ucrania como Instrumento de Diplomacia Migratoria’ (2024) 64 Revista UNISCI/UNISCI Journal 73.

[16] Sharon Samber, ‘Non-Ukrainian Asylum Seekers Left Out in the Cold’ (January 26, 2023), HIAS,  <https://hias.org/news/non-ukrainian-asylum-seekers-left-out-cold/> accessed 13 November 2024.

[17] Katharine Woolrych and Natakiia Krynytska ‘Op-ed: Left Behind by Temporary Protection: The Asylum Seekers and Refugees Fleeing Russia’s War’ (27 January 2023), European Council on Refugees and Exiles, <https://ecre.org/op-ed-left-behind-by-temporary-protection-the-asylum-seekers-and-refugees-fleeing-russias-war/ > accessed 13 November 2024.

[18] Matteo Bottero ‘Integration (of Immigrants) in the European Union: A Controversial Concept’ (2022) 24(4) European Journal of Migration and Law 516.  

[19] Khatia Shamanauri, ‘After fleeing war in Ukraine, many African and Asian students are relocating to Georgia’  (29 June 2023), Equal Times, <https://www.equaltimes.org/after-fleeing-war-in-ukraine-many> accessed 13 November 2024.

[20] Stephanie Busari et al., ‘Foreign students fleeing Ukraine say they face segregation, racism at Border’. (March 4, 2022), CNN World, <https://edition.cnn.com/2022/02/28/europe/students-allege-racism-ukraine-cmd-intl/index.html> accessed 13 November 2024.

[21] Ibid.

[22] AIDA and ECRE, ‘AIDA Temporary Protection Compilation on 2023’ (2024), <https://asylumineurope.org/wp-content/uploads/2024/11/Compilation-temporary-protection-2023-update.pdf> accessed 13 December 2024; Maud Jullien et al., ‘Fate of Ukraine’s Foreign Students. Tracing non-white students who fled invasion but faced Europe’s hostility’ (2022) Lighthouse Reports, available at <https://www.lighthousereports.com/investigation/how-the-eu-failed-ukraines-international-students/>  accessed 13 November 2024. 

[23] AIDA and ECRE, ‘AIDA Temporary Protection Compilation on 2023’.

[24] Lusa, ‘Portugal: Good Practice for Offering Temporary Shelter to Non-Ukrainians, EU Report’ (June 8 2023), < https://www.lusa.pt/article/40972883/portugal-good-practice-of-offering-temporary-shelter-to-non-ukrainians-eu-report> accessed 13 November 2024.

[25] Virginia Pietromarchi, ‘Across Europe, African students fight to study after Ukraine exit’ (13 May 2022), Al Jazeera, <https://www.aljazeera.com/news/2022/5/13/african-students-who-fled-war-in-ukraine-fight-to-keep-studying> accessed 13 November 2024.

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