Temporary Protection Directive

With the entry into force of the Treaty of Amsterdam on 1 May 1999, the European Union gained authority to legislate in the areas of migration and asylum policy. At the European Council meeting held in Tampere in October 1999, several legislative instruments instituting a Common European Asylum System (CEAS) were proposed. Together with the other instruments, the Temporary Protection Directive was passed in 2001 in the aftermath of the Yugoslav Wars.[1][8] The directive has been in effect since 7 August 2001,[9] but was not invoked until 2022.[5]

The Temporary Protection Directive aims to harmonise European Union policies with respect to displaced people and increase solidarity and collaboration between member states in a refugee crisis.[3] The directive discusses procedures for triggering and ending temporary protection, rights of people under temporary protection, and special provisions for specific categories of people (survivors of trauma, unaccompanied minors, and potential security threats).[3]

Temporary protection, which is distinct from asylum, can last up to three years depending on circumstances.[2][10] People under temporary protection can obtain a residence permit without the complicated bureaucracy normally associated with seeking asylum.[11] They are allowed to work and access social welfare, and are entitled to protection throughout the EU.[12] Children must be allowed to access education the same way as EU residents.[7]

To invoke the directive, the European Commission must first make a proposal to member states, and a qualified majority of the Council of the European Union (generally at least 55% of EU countries, representing at least 65% of the union's total population) needs to vote in favour.[2] The directive is intended to be invoked in the event of a "mass influx" of refugees; the definition of "mass influx" was intentionally left vague and is meant to be defined on a case-by-case basis, in order to allow flexibility in its application.[4][13]

When invoked, the directive compels all member states (except Denmark, which has an opt-out clause) to accept refugees, issue residence permits, minimise red tape, and take other steps to assist displaced people.[2] Refugees are to be distributed among member states on a voluntary basis, based on member states' capacity to host them.[11][2][6][7]

The directive originally did not apply to Ireland due to its opt-out clause, but on 11 April 2003, the Irish government stated its desire to opt in, which was accepted by the European Commission.[14][9][15][16] However, as of 2016 the Irish government has not transposed the directive.[16]

In March 2022, the Council of the European Union invoked the Temporary Protection Directive for the first time in its history, in response to the refugee crisis caused by the Russian invasion of Ukraine. The European Commission proposed invoking the directive on 2 March 2022,[17] and EU ministers unanimously agreed to invoke it on 3 March.[5][18] The decision was unanimous despite the fact that Hungarian minister Gergely Gulyás had expressed opposition hours before the decision.[19] The Council formally activated the directive on 4 March 2022.[20][18][21]

The European Commission published guidelines for how member states should implement the directive in light of the crisis, and individual member states have announced specific requirements for how refugees can apply for protected status.[22] It was reported that the directive would include "non-Ukrainian nationals and stateless people legally residing in Ukraine", if they are unable to return to their home countries.[17] Although Denmark is not bound by the TPD, Danish authorities have announced a similar "Special Act Status" for Ukrainian refugees.[22]

The legal blog Lawfare said it was surprising that the Council's decision was unanimous, pointing out that Hungary and Poland had opposed burden-sharing measures during the 2015 refugee crisis. Lawfare said that those countries' support for invoking the TPD in 2022 was probably driven by "popular sympathy for the Ukrainians, and the specter of further Russian westward expansion".[18]

The directive's possible use has occasionally been discussed in the years since it was passed.[1]

In 2011, the EU received more than 300,000 refugees, partly due to the First Libyan Civil War. The Italian and Maltese governments argued for using the Temporary Protection Directive,[10] and the European Commission discussed invoking it to address tension between Italy and France over their differing refugee policies. However, the directive was not invoked, partly due to opposition from the German government.[6]

Amid the 2015 European refugee crisis, the UNHCR, some members of the European Parliament, and activists called for the directive to be invoked.[10]

EU foreign policy official Josep Borrell discussed the possibility of invoking the directive in 2021 to aid Afghan refugees following the United States military's withdrawal from Afghanistan.[1][2]

There has been discussion of the directive in the context of climate refugees, but it is thought that it would probably not be applicable due to the gradual nature of climate change.[4][13]

• Temporary protection visa – Australian counterpart
• Temporary protected status – United States counterpart

• Gluns, Danielle; Wessels, Janna (2017). "Waste of Paper or Useful Tool? The Potential of the Temporary Protection Directive in the Current "Refugee Crisis"". Refugee Survey Quarterly. 36 (2): 57–83. doi:10.1093/rsq/hdx001. ISSN 1020-4067. JSTOR 48503050.

• Temporary Protection Directive on EUR-Lex