Op-ed: The EU is stretching the limits of the Temporary Protection Directive beyond 2025, but is it enough?

By Viktoryia Vaitovich

Following the unprecedented EU response to the displacement from Ukraine with the triggering of the Temporary Protection Directive (TPD) for the first time in March 2022, the generally very positive approach to a refugee crisis has now taken a contested turn. This is reflected in the yearly extension(s) of the TP regime in the EU beyond what was thought to be its maximum three-year validity.

ECRE campaigned for and supports the extension because the move is aimed at ensuring continuous access to legal status and rights for current beneficiaries of TP (BTPs) until at least March 2026. The novelty is not without flaws, however, particularly given that it represents the sole measure introduced in this extremely uncertain moment for the EU decision-making apparatus.

EU minimus: A (bare minimum) measure in the absence of longer-term preparedness

The wording of Article 4 of the TPD suggests a restriction to a three-year term for the TP regime. This can be understood from the context of the negotiation of the instrument back in 1999-2000, with the consensus on three years as an optimal period for the validity of the respective regime – despite initial proposals for five years. In contrast, this week, the European Commission (EC) put forward the extension for a fourth year (i.e. until March 2026, based on a broader interpretation of the TPD). The measure is grounded on the argument, confirmed by the respective legal services, that Article 4.2 allows for yearly extension(s) of the regime for as long as the reasons for TP persist.

The idea of the broader reading of the TPD emerged under the Spanish Presidency of the Council of the EU in 2023. It reflects attempts to find solutions in the event that the extension for the third (and previously believed to be final) year would not suffice and has since been the subject of a broad discussion and critique.

Anticipating the delays in decision-making in 2024 linked to the European Parliament elections and the appointment of a new College of Commissioners, ECRE welcomed the idea of exploring a potential extension of the TPD beyond March 2025 for at least for another (fourth) year. However, that should take into account two important considerations. First, ECRE called on the EC to provide the necessary legal basis and justification in its proposal for the extension in a timely manner, in order to allow for closer examination and evaluation of the measure. Second, ECRE stressed the need to consider this short-term measure solely as a tool to ensure continuous legal status for BTPs while longer-term durable solutions are being developed. ECRE’s analysis of available post-TP options also followed this call, and remains relevant, as tested in a number of facilitated debates on the topic. ECRE has also called for an “EU maximus” approach, with the EU, particularly the EC, regaining the assertive role that allowed for a strong, protection-focused EU response to this displacement crisis.

With some delay and a lack of action on long-term points, the idea of the extension that has been discussed in recent months will now materialise following the political agreement reached by the Justice and Home Affairs Council on 13 June. As such, it is very welcome. Nonetheless, the short-term benefits of the measure should allow the EU to buy time for a wider response to the situation, which has transformed from an emergency into one requiring longer-term durable solutions.

The main “winners”?

Without addressing the complexity of the situation which is characterised by (1) the increasing anxiety about longer-term needs and perspectives of the displaced population; (2) uncertainty linked to the dynamics of the displacement; and (3) intra-EU challenges in the area of legislation and decision-making, the decision to extend the TPD can still be seen as beneficial to the image of the EU as a key actor (although belatedly) aspiring to maintain a certain level of solidarity and support toward people displaced from Ukraine, and being capable of finding “creative” solutions in its response.

The move can also partially be perceived as advantageous for EU member state (MS) governments. Despite EU MS’ frustrations about delays in EU coordination, which has already translated into diverging planning and development of post-TP options, the extra year (or more) of the common EU TP regime buys time for necessary adjustments of the national systems (e.g. improving capacity of asylum systems, making legally possible the transition to existing national statuses or developing new ones etc.).

Finally, despite the crucially important possibility to maintain legal status in the EU for at least an additional year, the perspective remains rather bleak for current BTPs, with mounting anxiety about their future, decreasing allowances attached to TP status, and uncertainty about practical matters such as expiring documents, related issues of employment, schooling arrangements for children etc. The lack of a longer-term inclusion perspective combined with these everyday practical challenges, may contribute to the burden of making certain choices, including premature return to Ukraine or applying for asylum.

Future risks

With what appears to be a reduced role of EU leadership and coordination compared to the first phase of displacement, as anticipated, the longer-term management of the situation has been left in the hands of national governments. In the current situation in which the asylum track remains the least preferred option of the national authorities, in the best-case scenario, EU MS will continue developing alternative solutions for transitioning out of TP status. These practices are already in place or currently under development in several EU MS, including Poland, Czechia, Italy and France. Whereas those frameworks largely involve employment-based residence permits, there is a high risk for those not qualifying for this type of permit being left behind unless other forms of permits, including humanitarian ones, are put in place in parallel. There are risks of large-scale irregularity and of vulnerable groups being particularly affected. Furthermore, in the absence of a longer-term strategy, the pro-return narrative and policies can gain more importance (as reflected in the recent pilot project for voluntary return in Czechia) despite the lack of safe and durable conditions in the country at the time of writing.

The next EC, which is due to be operational by the end of 2024, will face the challenge of developing long-overdue, future-proof solutions beyond emergency responses that take into account potential family reunification, with estimates of approximately 500,000 family members coming to the EU, and consider Ukraine’s EU membership perspective, which implies gradual acquisition of EU citizens’ rights, including intra-EU mobility and access to EU MS labour markets (which TP beneficiaries already have – an unprecedented situation for an accession country). In order to address this, the new EU legislature should consider the development of a new “bridging” post-TP and pre-accession permit, possibly also linked to the reconstruction of Ukraine. It should also seize the opportunity to revive the negotiations on the reform of an existing legal tool – EU Long-term Residency – and expand it to include current BTPs, which could also serve as the exit option in the event of future TPD activations.

Viktoryia Vaitovich is a Policy Officer at ECRE. She leads the organisation’s advocacy work on the EU’s response to the displacement from Ukraine.