Analysis: this is the first time the EU has provided temporary protection for people displaced from their homeland

By Alan Desmond, University of Leicester

The Russian invasion of Ukraine has already led over 1.7 million people to seek protection in other countries. As Russian aggression continues apace, the UN estimates that number may increase to over four million in the coming months. The activation last week of the EU's Temporary Protection Directive (TPD) will ensure that essential support and assistance is provided to people displaced from Ukraine who arrive in EU member states.

What is the Temporary Protection Directive?

In 2001, the then 15 member states of the EU adopted the Directive, one of the key legislative building blocks of the Common European Asylum System that the EU has been constructing since 1999. The Directive was drawn up in the shadow of the conflict in the former Yugoslavia which had displaced people on a scale not seen in Europe since the Second World War.

This building block, however, went unused until last week when the Council of the EU adopted a Decision that activated the TPD in response to the "mass influx" of people to EU states fleeing Ukraine following Russia's invasion.

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From RTÉ Six One News, Paul Cunningham reports on the 'staggering' number of Ukranian refugees continuing to cross Polish border

Who will benefit from temporary protection?

One of the main purposes of the Directive is to set out the minimum standards of treatment that EU member states must provide for a temporary period to people arriving as part of "a mass influx of displaced persons".

Temporary protection will be available for persons who have fled Ukraine on or after February 24th as a result of the Russian invasion, provided those individuals are:

- Ukrainian citizens residing in Ukraine before 24 February 2022;

- stateless persons, or non-Ukrainian citizens, who held refugee status or other form of protection in Ukraine before 24 February;

- family members of the above, where "the family was already present and residing in Ukraine before 24 February".

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From RTÉ Radio 1's Morning Ireland, Irish Independent journalist Gabija Gataveckaite on Government plans to accommodate potentially thousands of refugees from Ukraine

EU member states must also provide protection – though not necessarily the protection set out in the TPD – for stateless persons and non-Ukrainian citizens who are lawful permanent residents of Ukraine and are unable to safely return to their country or region or origin. For those who do not hold lawful permanent residence such as asylum-seekers or international students, there is no obligation on EU member states to extend protection to them. Instead the Decision of March 4th simply gives member states the option of providing protection.

What does temporary protection mean for Ukranians?

The TPD confers a robust catalogue of rights on individuals who qualify for temporary protection. This includes residence permits for the duration of the protection, suitable accommodation and access to the labour market. Child beneficiaries of temporary protection should have the same access to education as citizen children of the host state, while states have the option of also allowing adult beneficiaries access to the education system.

The Directive obliges EU states to provide "necessary assistance in terms of social welfare and means of subsistence" for persons enjoying temporary protection if they do not have sufficient resources. It also requires provision of medical care, including at a minimum emergency care and essential treatment of illness.

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From RTÉ Radio 1's Morning Ireland, James Elder, Communications Chief for UNICEF's Ukraine Emergency, on the humanitarian conditions in Lviv

Temporary protection also entails a right to family reunification. States are obliged to allow entry of the family members of an individual with temporary protection on condition that the family already existed in Ukraine "at the time of the circumstances surrounding the mass influx of displaced persons." This obligation exists in relation to the spouse/partner of the individual with temporary protection and the minor unmarried child(ren) of one or both of them.

Furthermore, states must allow entry of other close relatives "who lived together as part of the family unit at the time of the events leading to the mass influx" if they were dependent on the person granted temporary protection. Crucially, individuals with temporary protection must be provided with a document, in a language they are likely to understand, which clearly sets out the content of the temporary protection to which they are entitled.

Temporary protection will last for an initial period of one year, and may be extended for a maximum of an additional two years if Ukraine continues to be unsafe. On the other hand, the European Commission may at any time propose ending temporary protection if "the situation in Ukraine is such as to permit the safe and durable return of those granted temporary protection."

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It is important to highlight that the TPD establishes minimum standards and does not preclude states from providing more favourable treatment for individuals in need of temporary protection. Similarly, states are not obliged to seek the removal of individuals once the temporary protection provided under the TPD comes to an end.

Ireland and temporary protection

While Ireland has opted out of much of the EU's most important migration and asylum legislation, it opted in to the TPD in 2003 and has already taken steps to meet its obligations to persons fleeing Ukraine. On March 7th, the Department of Social Protection outlined the support and services available for beneficiaries of temporary protection and how to access them. The Department of Children, Equality, Disability, Integration and Youth has funded the Irish Red Cross to organise accommodation for people arriving from Ukraine. While only 1,800 people have so far arrived in Ireland from Ukraine, that number may grow to exceed 80,000.

EU double standards?

The EU is to be commended for its relatively prompt and generous efforts to meet the protection needs of individuals fleeing Russian aggression in Ukraine. At the same time, though, the almost immediate activation of the long-dormant TPD in response to large-scale arrivals of people from Ukraine underscores the double standards in EU and member states’ treatment of asylum-seekers depending on where they come from. Indeed, the leading expert on the TPD has recently queried why the Directive was not activated before now in response to earlier mass displacements of people from countries like Tunisia, Libya and Syria.

Despite the welcome extended to Ukrainians by neighbouring countries like Poland, Slovakia and Hungary, there have been reports of people of colour being pushed back at the border and subjected to xenophobic treatment. While the International Organisation for Migration and UN human rights experts have criticised such racial discrimination as unacceptable, this kind of treatment means that some people formally entitled to temporary protection in the EU will face obstacles leaving Ukraine to access that protection on account of their skin colour.

Dr Alan Desmond is a lecturer in law at the University of Leicester and a member of the University's Migration, Mobility and Citizenship Network. He recently acted as guest editor of a special issue of the Journal of Immigration, Asylum and Nationality Law on human rights protection against expulsion of seriously ill immigrants.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ