Let Sleeping Dogs Lie? Temporary Protection in European Union Asylum Law

By Salvo Nicolosi
Postdoctoral Researcher at the Department of European, Public and International Law of Ghent University and an EU Fulbright-Schuman Fellow and Michigan Grotius Research Scholar at the Center for International and Comparative Law of the University of Michigan Law School.

In 2015 more than a million migrants—including asylum seekers, displaced persons and other migrants—crossed the external borders of the European Union (EU), as confirmed by the Annual Report published by the European Asylum Support Office (EASO). Crossings in the Mediterranean also spiked in the first months of 2016; overall, the number of people seeking protection in the EU from third countries—especially those in Africa and the Middle East—during the second quarter of 2016 reached 305,700.

While this migratory pressure continues to rise, the EU has struggled to design adequate solutions. In response, some scholars have emphasized the need to implement the Temporary Protection Directive (TPD), an instrument adopted in 2001 by the Council of the EU. The TPD aimed at providing displaced persons from non-EU countries who are unable to return to their country of origin with immediate and temporary protection by setting a comprehensive framework to deal with mass influx situations.

Despite its alleged potential, the TPD has never been put into play. Earlier in 2016, the European Commission published a Study, which delves into the strengths and weaknesses of the TPD and concludes that, instead of “spending political capital” in amending the TPD, some elements of this instrument could be incorporated into the proposed relocation mechanism within the recast Dublin Regulation.

In an attempt to shed light on the strengths and weaknesses of the TPD, it is crucial to introduce and define the concept of temporary protection in international refugee law, before examining the temporary protection regime in EU asylum law and comparing its features with the current proposals tabled by the Commission to reform the Common European Asylum System (CEAS).

Defining Temporary Protection… and its Original Sin

Defined by the UNHCR as “a method, in a situation of mass outflow, for providing refuge to specific groups or categories of persons recognized to be in need of international protection, without recourse, at least initially, to individual refugee status determination,” temporary protection is not a new concept. The principle of temporary refuge found expression in the first International Conference on Indochinese Refugees organized by the UNHCR in 1979 in order to provide interim protection to claimants fleeing the war-torn countries of Vietnam, Laos and Cambodia. On that occasion, the temporary nature of asylum or refuge was, for the first time, specifically introduced as an exceptional form of protection in cases of large scale influx. As stated by the UNHCR Executive Committee, temporary protection is based on “the essential need for persons to whom temporary refuge has been granted to enjoy basic humanitarian standards of treatment.”

Even though the question of temporary protection in situations of mass influx has been studied by the UNHCR since the 1980s, the efforts to formalize temporary protection mechanisms did not result in a specific hard law regime. International law has not articulated the legal basis for temporary protection frameworks in mass influx situations nor has the relationship between the 1951 Refugee Convention and temporary protection been yet settled—apart from the obligations stemming from the principle of non-refoulement.

Generally, temporary protection frameworks have emerged to cope with emergency situations—such as mass influx situations for which the Refugee Convention, as an instrument for individualized refugee status determination, is unlikely to offer suitable solutions. Indeed, when mass influx situations undermine the orderly functioning of national asylum systems, individualized assessments may become nearly impossible. In contrast, temporary protection is a group-based regime used by States in such emergency situations to prevent overwhelming their domestic asylum systems. Nonetheless, the fact that temporary protection has been regarded as an exceptional measure in the event of mass influx situations has prevented its formalization within international refugee law, allowing instead for domestic or regional solutions.

As an example at the domestic level, the United States has offered Temporary Protected Status (TPS) since the 1990s. TPS is granted to people from designated countries (currently 13) where: (1) there is “ongoing armed conflict;” (2) there has been an earthquake, flood, drought, epidemic, or other environmental disaster that makes the state temporarily unable to accept the return of its nationals; or (3) “extraordinary and temporary” conditions in a state prevent its nationals from returning safely.

At the international level, the question of temporary protection has been especially endorsed by the UNHCR Executive Committee, which reiterated the need to admit displaced people on a temporary basis and provide protection according to basic human rights standards pending arrangements for a durable solution. Nonetheless, it must be stressed that, although it is emphasized that asylum seekers shall enjoy internationally recognized fundamental civil rights, the level of protection set out by UNHCR does not offer the same guarantees provided in the Refugee Convention. This is due to the fact that temporary protection mechanisms, as argued, are conceived of as a special tool to apply in emergency situations for the purpose of facilitating admission of displaced persons. More importantly, as concluded by the Group of Experts of the UNHCR Standing Committee in 1997, “the risks in the formalization of the concept of temporary protection lie in the potential for it to dilute the protection of the 1951 Convention and reduce the incentive of States to accede to the Convention,” since temporary protection regimes effectively offer only some of the rights enumerated in the Refugee Convention.

A Splendid Obsolescence: The Formalization of Temporary Protection in EU Law

Within the EU, a temporary protection regime was first formalized in the early 1990s after the mass influx of people fleeing the war in former Yugoslavia. On that occasion several European States implemented national forms of temporary protection with different characteristics in terms of duration, access to asylum procedures and status. This resulted in imbalances in the distribution of people seeking protection and in secondary movements, since people sought the most generous States (asylum shopping).

Based on the 1997 Treaty of Amsterdam and the goal set out in the Tampere Programme of 1999 to establish a Common European Asylum System, a harmonization process in the area of temporary protection was undertaken and resulted in the adoption of the TPD in 2001. The Directive (Art. 2 (a)) defines temporary protection as:

a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection.

Article 5 (1) provides a specific procedure to determine the existence of a mass influx situation and thus trigger the TPD. Upon a State’s request, the European Commission can propose activating the Directive, while the Council of the EU shall decide by a qualified majority: (1) the specific groups of persons to whom the temporary protection will apply; (2) the date on which the temporary protection will take effect; and (3) an estimation of the scale of the movements of displaced persons. Once activated, the TPD provides harmonized rights—such as the right to work, education, suitable accommodation, medical care and necessary social assistance—for the recipients for up to three years, as well as a solidarity mechanism (Art. 25), consisting in the relocation of asylum seekers across the EU based on the mutual consent between of the receiving State and the asylum seeker. From the latter perspective, the TPD remains the sole legal act that foresees an in-built binding form of solidarity mechanism, though the extremely voluntary nature constitutes a major weakness.

Despite recent requests from Member States like Italy and Malta in 2011, the TPD has never been implemented. Many factors, both at the political and legal level, have influenced the lack of implementation of the TPD. In particular, from a legal perspective, the lack of clear guidelines regarding how to measure the existence of a mass influx has made it difficult for Member States to activate the TPD. Article 2(d) vaguely defines “mass influx” as the arrival of large numbers of displaced persons, who come from a specific country or geographical area, either as a consequence of spontaneous migratory flows or aided evacuation program.

Secondly, at the procedural level, there is the difficulty of securing a qualified majority within the Council. This challenge is particularly great, since a majority vote presumably requires the favor of Member States which, despite not being directly affected by a mass influx, would likely need to commit themselves to the redistribution responsibilities of the TPD solidarity mechanism. Consequently, as long only a few Member States are at risk, the TPD will not be implemented. Beyond mere activation, the whole TPD procedure is highly vulnerable to political discourse, including the ever present claim that the activation of the TPD will create a “pull factor” to a host State, thus opening the floodgates to more migrants. Even the solidarity mechanism which leaves it to Member States to establish their own capacity for relocation is effectively useless without clear criteria for calculating allocations and reception capacity.

The structural weaknesses of the TPD—coupled with the political arguments flagged by Member States—have therefore made it exceptionally difficult to trigger the Directive. The lack of substantial practice to test its effectiveness in the field has consequently undermined the primary objective of harmonizing domestic rules on temporary protection and has condemned the TPD to legal obsolescence, or a mere “term of art,” as Durieux expressively concluded.

Temporary Protection by Other Means? A look at the Reform of the CEAS

Considering the weaknesses in the original structure of the TPD, current institutional debates within the EU have been focusing on the need to reconsider the Directive. In a recent Study the European Commission suggested re-examining the continued relevance of the TPD in the light of the current state of the CEAS reform. It is thus worth comparing the Directive with the measures proposed by that the European Commission to enhance solidarity across the EU and alleviate the pressure of mass arrivals on some Member States.

In this context, it is relevant to briefly analyze the new corrective mechanism under the Dublin system, which would have the same function as the “crisis relocation mechanism” proposed by the Commission in September 2015, and will replace the current Decisions on provisional measures regarding relocation adopted for Greece and Italy.

Like the TPD, the suggested mechanism aims to cope with the “disproportionate inflow of third-country nationals or stateless persons,” which places significant demands on the asylum system of a Member State. Nonetheless, unlike the TPD, the proposed mechanism foresees an automatic trigger, thereby avoiding the lengthy activation procedure under the TPD. The proposal, in fact, includes an “automated system for registration, monitoring and the allocation mechanism” (Art. 44) which would assign “unique application numbers” to each application for international protection lodged with a Member State. As highlighted in a recent Study, it would be capable of indicating in real time the total number of applications lodged in the EU, the number lodged in each Member State, the number of third country nationals resettled by each Member State, the number of applications to be examined by each Member State as Member State responsible, and the share of applications in each Member State (see Art. 22 and 23).

The corrective mechanism, like the TPD, does not limit relocation to applicants who belong to nationalities with recognition rates of 75 per cent or higher—based on the latest Eurostat available data—as the current provisional measures and the proposed crisis relocation mechanism do. Instead, all new applications lodged in Member State experiencing disproportionate pressure will be allocated to other Member States whose asylum systems have excess capacity. Furthermore, the mechanism would guarantee that eligible persons have the chance to submit an asylum claim and have full access to international protection (refugee status or subsidiary protection) in line with the Refugee Convention instead of a form of temporary protection which is generally based on lower standards.

Despite these interesting features, it is difficult to gauge that the correction mechanism, if adopted, will be an effective tool to cope with mass migratory flows. The mechanism, in fact, remains highly dependent on the strict logic of responsibility allocation, characteristic of the Dublin system, which does not leave room for asylum seekers’ preferences as to the host State and thus allows for random relocation. Moreover, the proposed system does not substantially depart from the fact that applications in the EU have always been concentrated in a few Member States—notably border States—which, under the new proposal, still have the primary responsibility of determining whether an application is admissible before proceeding with any transfer required by the allocation mechanism. As a result, the added value of the automatic trigger is likely to be watered down in its “administrative unworkability,” since before the applicant can start status determination, a process of admissibility screening, automatic allocation, and transference has to be performed.

It therefore seems that, on the one hand, the incorporation within the Dublin system of a mechanism to cope with mass migratory flows may better implement the principle of “protection for the duration of risk,” which is required by international refugee law. On the other hand, the transformation of the TPD into an effective solidarity mechanism which fully ensures access to international protection would be recommended, provided that such mechanism departs from the existing logic of responsibility allocation and addresses the different needs for protection among asylum seekers. Regarding the needs of children, for example, any protection solution must involve the facilitation of family reunification or access to a guardian at the earliest stage possible, as recently suggested by the UN High Commissioner for Refugees, Filippo Grandi.

A Final Resistance to the Easy Fascination of Temporary Protection 

Temporary protection is a concept that can distract from the core content of international protection under the Refugee Convention. This could explain why literature has not emphasized the potential of temporary protection frameworks since the 1990s.

As well explained by Hathaway, States must not deny the refugee character of migratory flows, and must accordingly consider providing, at best, access to the protection established by the Refugee Convention. To that extent, a more cautious approach must be taken when designing temporary protection frameworks.

From this perspective, as long as a system is proposed which copes with mass influxes by establishing an effective relocation mechanism that allows eligible applicants to have access to international protection in line with the Refugee Convention and other human rights instruments, it is to be preferred to temporary protection regimes. The latter, in fact, risk authorizing a person who is a refugee to remain in a State’s territory without granting access to most Convention rights. Moreover, a robust and integrated asylum regime seems to be the only solution likely to comply with the requirement of Article 78 of the Treaty on the Functioning of the EU (TFEU), which calls upon the EU to develop a common policy on asylum, subsidiary protection and temporary protection “with a view to offering appropriate status to any third country national requiring international protection,” while ensuring a responsible compliance with the Refugee Convention.

At a very critical time for the future sustainability of the CEAS and the international refugee system in general, it is easy for States to fall into the fascination of alternative protection labels. This is why it is necessary to reiterate that if the goal of these alternative forms of protection is “to avoid the need to recognize most Convention rights, they are legally untenable.” In this case, instead of unearthing potentially dangerous concepts, it is really better to let sleeping dogs lie!

 

 

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