What happens next? Scenarios following the end of the temporary protection in the EU

To respond to the large-scale displacement of Ukrainians fleeing the Russian invasion, the EU unanimously adopted the Council Implementing Decision 2022/382 of 4 March 2022 and activated the Council Directive 2001/55/EC, (Temporary Protection Directive- TPD).

Last Saturday, 4 March 2023 marked the first year of the TPD;s implementation. With only two years until it expires and approximately 5 million people currently benefiting its protection, it is time to start planning what happens next.

The TPD foresees two main ways that temporary protection comes to an end:

1. If safe and durable returns become possible, the Council can choose to terminate the temporary protection regime at any time.
   or
2. If safe and durable returns are not possible, the temporary protection regime must be terminated when the 3-year time limit is reached (Article 4 of the TPD).

In either scenario, the TPD only outlines a few principles that Member States must follow when temporary protection ends.

What would possible scenarios relating to end of temporary protection look like?

Scenario one: Russian invasion of Ukraine ends before 4 March 2025

If the Russian invasion ends and Ukraine becomes safe for temporary protection beneficiaries to return to at any point before 4 March 2025, the Council can adopt a decision with a qualified majority following a proposal from the Commission, to terminate the temporary protection regime. If this happens, the temporary protection beneficiaries who have a well-founded fear can apply for international protection. Asylum applications of the temporary protection beneficiaries that were not considered until the end of the temporary protection regime must be also processed and decided by the Member States (Article 17). For Ukrainian nationals who decide to apply for asylum, their well-founded fear of persecution on one of the Convention grounds as well as the risk of being subjected to serious harm will be examined on the basis of the situation in Ukraine. However, for third-country nationals (non-Ukrainians receiving temporary protection status in the Union), their international protection claims will be decided based on the situation in their respective countries of origin.

For those who have no interest in applying for international protection but nevertheless wish to stay in the EU, existing Union laws and policies on migration and Member State laws on aliens would apply (Article 20). If a previous temporary protection beneficiary has no legal reason to stay in the Member State territory, then he/she can be returned back to Ukraine given there is no risk of refoulement. In such cases, the TPD requires Member States to adopt measures to return the former temporarily protected persons (Article 22). Exceptions for return should be given for humanitarian reasons (Article 22) and when someone’s health prevents them traveling (Article 23).

Scenario two: Russian invasion of Ukraine does not end by 4 March 2025

If the Russian aggression does not end by 4th March 2025—the 3-year deadline outlined in the current directive— or it ends but leaves Ukraine in a state where returned persons would still be at risk of serious harm, this would necessitate a more complex response compared to the first scenario.

Once temporary protection ends, as noted by Skordas (2022: Article 22, para 2), Member States can only return a previous temporary protection beneficiary if “the person is not eligible to be legally admitted to the country for some other reason and the situation in the country of origin permits the safe and durable return”. Thus, in this scenario, return would not be a feasible option for most temporary protection beneficiaries. Further, since resettlement to a third country will also not be an option for most, Ukrainians are left with only one durable solution: local integration.

How can local integration be achieved for temporary protection beneficiaries?

There are a number of ways to do this.

1. The first option can be to grant all temporary protection status holders a form of international protection as a group and on a prima facie basis (Ergin 2023, p. 354). This would eliminate  challenges of processing asylum applications on an individual basis, which would exacerbate the backlog in national asylum systems and could even lead to the collapse of asylum systems in some countries, such as Poland. If a previous temporary protection beneficiary for some reason is not eligible for international protection, he/she can apply and be given other national protection statuses.
2. A second option is to promote other pathways that would allow former temporary protection beneficiaries to remain legally in the Member States. However, the various viable pathways all have significant limitations. For example, Member States could issue visas for work or educational reasons, but not all Ukrainians would likely be able to qualify for these pathways. Member States can also grant citizenship or give permanent or time-limited residency, but this would depend on the Member States’ national laws and policies on citizenship and residence.
3. A third and compelling option is that of long-term resident status. It has a number of benefits but would need some swift action to make it viable.

Long-term resident status to the rescue? A proposal

The qualifications

The Council Directive 2003/109/EC amended by Directive 2011/51/EU (LTR Directive) establishes that a person who has lived legally in an EU country for an uninterrupted period of five years, can obtain the status of long-term resident. Getting this status is also dependent upon the person having

• a stable and regular source of income,
• health insurance and,
• when required by the EU country, having complied with integration measures (Articles 4-6 of the LTR Directive; Thym 2022, p. 540-642).

The person applying for the status also must not be a threat to public security or public policy.

The benefits

Long-term resident status provides its holders a permanent residence permit and equal treatment with nationals of the Member States in many regards, including but not limited to access to employment, education, social security, social assistance, and social protection, and access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing (Chapter II of the LTR Directive). Therefore, giving temporarily protected groups long-term resident status might

• enable them to integrate into the EU Member States,
• make sure they can be protected from a forcible return,
• while also gaining access to crucial rights and entitlements without a time limit.

Recast Proposal

As of March 2023, Article 3 of the LTR Directive does not apply to third-country nationals who are authorised to reside in a Member State on the basis of temporary protection. Temporary protection beneficiaries normally cannot apply for the LTR status, and time spent on temporary protection does not count as part of 5 years of required stay. However, the Commission’s adopted proposal COM/2022/650 final (recast) might change this.

The proposal would make it easier to acquire long-term resident status, in particular by clarifying that all periods of legal residence should be fully counted, including residence periods as beneficiaries of temporary protection, or residence periods initially based on temporary grounds. This is a stark change compared to the current text of the LTR Directive and if adopted, will enable temporary protection beneficiaries that fulfil the other LTR requirements to get long-term residence in Europe.

Barriers to success

However, even if the proposal is accepted as is, there would be a number of barriers for Ukrainians to be granted this status. Firstly, persons displaced to the Union after 24 February 2022 would only be staying in the EU for three years. Secondly, many Ukrainians go back to Ukraine to see their families and for other reasons, which means not all temporary protection beneficiaries’ stay would be continuous. Moreover, temporary protection beneficiaries especially women may not have a regular and stable income due to their care duties, especially in the absence of services such as accessible child and elderly care in the Member States.

These challenges must be addressed before the text of the proposal is adopted and one way to do so is by adding an article to the current proposal requiring less stringent criteria for temporary protection beneficiaries who wish to apply. These could include reducing the length of stay to a period less than 5 years and not disqualifying women who cannot earn a regular and stable income as a result of caretaking duties.

Conclusion   

If the Russian invasion of Ukraine does not end by March 2025, or it ends, but the war leaves Ukraine in a state that is not conducive for the safe and durable returns, the temporary protection regime will be terminated automatically on 4 March 2025. In this case, providing previously temporarily protected groups long-term resident status can give this population access to durable solutions. This would help to ensure the positive outcomes of the temporary protection regime are retained and the commendable EU efforts to protect Ukrainians displaced by war continue.