Temporary Protection for Ukraine’s Refugees – Council Implementing Decision (EU) 2022/382 of 4 March 2022

Temporary Protection for Ukraine’s Refugees – Council Implementing Decision (EU) 2022/382 of 4 March 2022
Joanna Kegler

Joanna Kegler

Senior associate / Attorney-at-law

On the 4th of March the Council of the European Union made a historic decision by implementing for the first time a special safeguard procedure regarding refugees – also known as Temporary Protection Directive. What does Temporary Protection mean in practice, and who can benefit from it, apart from Ukraine’s citizens?

Temporary Protection constitutes a specific mechanism incorporated in 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.

Interestingly, this solution has never been activated before (even in the case of refugees from Syria or Afghanistan).

However, current situation in Ukraine, which was triggered by a military conflict, resulted in a mass escape of people on an unprecedented scale. Consequently, it is highly probable that the European Union will soon face a massive influx of displaced people from Ukraine, who will be unable to return due to Russia’s military aggression. Therefore, the Commission decided to activate special protective measures to support the refugees.

Temporary Protection – primary postulates

To begin with, it is worth explaining what is meant by the term ‘temporary protection’ and what are its fundamental postulates. According to the clarification included in Directive 2001/55/EC, temporary protection constitutes an emergency procedure that is activated in the event of a threat of the occurrence, or an actual case of mass influx of displaced persons from third countries, who are unable to return to their country of origin.

The aim is to grant an immediate temporary protection for those people, especially if there is a risk that the asylum system may not be able to cope with such a number of refugees without negative consequences that can cause further detrimental effects on displaced persons looking for help and protection.

Temporary protection – possible beneficiaries?

By the decision of the EU legislature, temporary protection will involve Ukraine’s citizens residing in Ukraine, who have been displaced on or after 24 February 2022, as a result of the military invasion by Russian armed forces. Third country nationals who were granted refugee status in Ukraine before 24 February 2022, or benefited from other equivalent safeguard solutions, can also benefit from temporary protection. Furthermore, the Commission notes the necessity to preserve the unity of families, in order to avoid disparate statuses among members of one family. As a result, the temporary protection is activated also for the family members of the beneficiaries encapsulated in the aforementioned categories. They will be covered by temporary protection as long as they indeed resided in Ukraine at the period of time when circumstances leading to the mass influx of displaced people occurred.

In this case, the eligible family members of a Ukrainian citizen (or a person benefiting from international protection in Ukraine) include:

  1. the spouse,
  2. the unmarried partner in a stable relationship (if the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples),
  3. the underage and unmarried children of the person, or of his/her spouse, regardless of whether they were born in or out wedlock, or adopted,
  4. other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a person.

Who else can be covered by temporary protection?

Moreover, the regulations postulated in the decision allow to apply temporary protection to other people, including stateless persons or nationals of third countries other than Ukraine, who were legally residing in Ukraine and are currently unable to return in safe and durable conditions to their country or region of origin.  However, it should be emphasized that not every refugee from Ukraine can benefit from the discussed procedure. Under Directive 2001/55/EC, the following persons are excluded from the possibility to invoke the provisions of temporary protection:

  1. suspected of committing:
    • a crime against peace,
    • a war crime or a crime against humanity,
    • a serious non-political crime,
  2. acting contrary to the purpo
  3. posing threat to security in the host EU country.
  4. ses and principles of the United Nations.

What rights do people covered by temporary protection have?

People covered by temporary protection have numerous rights. These include:

  1. possibility to engage in employed or self-employed activities,
  2. access to educational opportunities for adults, vocational training and practical workplace experiences
  3. suitable accommodation,
  4. social welfare and means of subsistence, as well as medical care,
  5. access to the education system for people under 18, under the same conditions as nationals of the host Member State,
  6. in the event that separate family members enjoy temporary protection in different Member States of the EU, or some family members are not yet in a Member State, they shall be granted an opportunity to reunite in one country,
  7. application for asylum.

How long will the protection period last?

According to Directive 2001/55/EC, temporary protection is initially planned for a period of one year (although, it may be extended further to 2 years).

As it results from EU legislation, the Member States can introduce the Council implementing decision or ensure an adequate protection provided by national law.

Currently, we are waiting for the acceptance of the Act concerning the support for refugees from Ukraine, which was announced by the government. According to media reports, a proposal for the Act is being completed and should be submitted to the parliament within the next week.

At this moment, there are rules concerning the way foreigners can benefit from temporary protection in Poland. They are regulated by the Act of 13 June 2003 on granting protection to foreigners within the territory of the Republic of Poland (Art.106). It seems that  the regulations that are currently being proceeded will constitute a complement to the ones that already exist. Obviously, with regard to the particular situation that we have been dealing with for over a week.

This naturally applies to the particular situation that we have been experiencing for over a week now.

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Joanna Kegler

Senior associate / Attorney-at-law
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