ECRE | Sortir de la directive sur la protection temporaire des personnes déplacées d’Ukraine

Le document d’orientation “Transitioning out of the Temporary Protection Directive: ECRE’s Analysis of the Main Options Available to Ensure a Smooth Transition out of the TPD Regime for People Displaced from Ukraine” a été publié le 7 février 2024 sur le site du Conseil Européen sur les réfugiés et personnes exilées (ECRE).

INTRODUCTION

February 2024 marks two years since the outbreak of the war in Ukraine. As of December 2023, more than 6.3 million refugees from Ukraine have been recorded globally, among which almost 6 million have registered for Temporary Protection (TP) or similar national protection schemes in the EU and associated countries (EU+). ^[1]UNHCR Operational Data Portal, Ukraine Refugee Situation, available at: https://bit.ly/4aWSnmN

The unprecedented activation of the Temporary Protection Directive (2001/55/EC) ^[2]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 … Lire la suite (TPD) has provided an efficient emergency response to address the immediate protection needs of those seeking safety in the EU. This legal tool has allowed rapid access to protection based on registration, provision of socio-economic rights (albeit at minimum standards), and the opportunity for individuals to choose the country of application for protection.

In addition, the use of the TPD has been accompanied by measures such as providing extensive financial assistance to EU Member States (EUMS) and other countries responding to displacement. This funding, largely in the form of grants, has been put at the disposal of the EUMS by the EU, while there are also loans and similar financial modalities available from European investment and development banks. Furthermore, coordinated efforts to support the EUMS have been made within the framework of the Solidarity Platform launched by the European Commission.

In light of the volatile situation in Ukraine, certain flexibility and innovation have also characterised the response, including, for example, allowing pendular movements to and from Ukraine so that people can keep links with family members and maintain property and land. The rapid activation of the TPD has contributed to the effective management of the large-scale displacement from Ukraine, which notably did not involve the time-consuming and politically damaging panic and paralysis which has dominated the EU response to the arrival of refugees in recent years.

The protection regime established by the TPD has been extended until March 2025.^[3]Council of the European Union, Press Release “Ukrainian refugees: EU member states agree to extend temporary protection”, 28 September 2023, available at: https://bit.ly/3U50Cac. While it is hoped that the war inducing the displacement ends soon, many analysts foresee evolution towards a long-term war of attrition and a situation of protracted, widespread violence, even if some form of ceasefire or peace agreement is negotiated in 2024, which in itself seems increasingly unlikely. Overall, the course of the war remains highly unpredictable. While the vast majority of Ukrainians prefer to return to the country, it may not be safe for some to do so for a long time; others will seek to return as soon as their regions are safe or even before.

In this context, to ensure continued management of the displacement from Ukraine, whatever its dimensions, provisions already need to be made for what happens after March 2025.

This Policy Paper covers the principles that should apply in managing the situation, and the options available to states and the EU, including assisted voluntary return to Ukraine, extension of temporary protection regimes, asylum applications and other protection statuses, as well as transitioning to work-based permits. It should be underlined that no preference is expressed for a particular option or scenario within the return-stay binary, the purpose is to outline the main available options.

Drawing on ECRE’s research and analysis of the TPD implementation, the Policy Paper concludes with recommendations for the political actors involved in the process of developing post-TP options. The scope of the Paper is limited to those covered by the TPD; ECRE has commented elsewhere on other categories of people forced to flee as a result of the war.^[4]ECRE, “The EU’s Response to Displacement from Ukraine: ECRE’s Recommendations”, 10 October 2023”, available at: https://bit. ly/3U1yHrP.

RECOMMENDATIONS

To the European Commission:

• Based on the assessment of its legality, put forward a proposal for extension of the TPD regime beyond 2025 or amendment of the TPD as a matter of urgency in order to start the decision-making process within the current legislative period;

• Ensure inclusive reconstruction and funding policies for Ukraine to facilitate the gradual voluntary return of displaced persons;

• Develop guidance for EU Member States on the options available to the current Beneficiaries of Temporary Protection (BTPs) upon the expiry of the TPD regime;

• Explore the options for new protection statuses in EU law, and the possibilities within existing EU asylum law that would ensure smooth and rapid transition to a protection status when relevant for current BTPs.

To the co-legislators on provisions related to the EU long-term residency:

• Integrate BTPs into the scope of the EU long-term residence permit.

To EU Member States:

• Allow displaced people access to asylum procedures as provided by the 1951 Convention and ensure that the rights under the TPD are not waived until the final decision on international protection is taken. In the event of a negative decision, TP status should not be affected as long as the TPD-related regime remains active;

• Develop labour mobility and long-term residency frameworks to address the possible long-term stay of current BTPs based on the respective EU frameworks.

• Include BTPs in the scope of the existing EU legal migration tools (e.g. EU Blue Card) and those currently under revision (e.g. Single Permit Directive) via the transposition of these tools into the national legislation.

• Ensure availability of legal statuses beyond those based on employment, addressing the situation of displaced students, persons with specific health conditions, and the elderly.

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