This article forms part of the blog series “Who, What, and How Much Does Temporary Protection Protect?” and edited by Ibrahim Soysüren. It builds on presentations from a workshop which had the same title and held on 9 December 2023 in Izmir and jointly organised by the NCCR On the Move, the Institute of Sociology of the University of Neuchâtel, and the Izmir Bar Association.
This article assesses the legality and implications of the EU’s decision to extend temporary protection for Ukrainian refugees until March 2026.
Protection of Displaced Ukrainians: Just How Temporary Is ‘Temporary’?
Esin Küçük
The activation of the Temporary Protection Directive for displaced Ukrainians in March 2022 has been welcomed as a testament to the EU Member States’ generosity in offering swift and collective protection. Indeed, by invoking this mechanism, Member States acknowledged the immediate needs of displaced individuals, ensuring their rapid access to essential rights and services throughout the Union. Practical considerations also played a role: as noted in the Council Implementing Decision (para. 16), the Directive’s activation aimed to prevent host countries’ asylum systems from becoming overwhelmed. While never explicitly stated, the Directive also allowed Member States to defer the complex political challenges associated with long-term displacement—presumably with the hope that the conflict would end soon, and that return would be feasible. This expectation, however, stands in stark contrast to the European Commission’s own recognition that the average duration of refugee displacement is around twenty years (see here) and to the evolving realities of the current conflict. Against this backdrop, a pressing question remains: When should temporary protection be brought to an end?
According to the Directive, temporary protection can initially be granted for a period of one year and may be automatically extended by six-month intervals up to a maximum of one additional year, as outlined in Article 4(1). The key question is whether, beyond these automatic extensions amounting to one-year, further extensions are permissible? On this, Article 4(2) specifically provides the following:
Where reasons for temporary protection persist, the Council may decide by qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.
A plain reading of this provision suggests that only one additional one-year extension is allowed, establishing a three-year maximum duration for temporary protection. This interpretation finds contextual support in Article 6(1)(a) of the Directive, which explicitly mandates that temporary protection must conclude “when the maximum duration has been reached”, which implies a legally defined endpoint for temporary protection. Furthermore, the inherent logic of temporary protection, conceptualised as an immediate response to mass arrivals, supports this interpretation. It is designed to provide host states with the necessary time to increase the capacity of their asylum systems, while ensuring that displaced individuals have access to essential rights. Individuals under temporary protection generally have fewer rights than those recognised under international protection as refugees or subsidiary protection holders. One key distinction, for instance, is that individuals under international protection may qualify for the benefits of the EU Long-Term Residence Directive, which explicitly excludes holders of temporary protection (Article 3(2)(b)) from the scope of its application. The justification for these curtailed rights rests on the expectation that temporary protection is just that—temporary. Repeated extensions would fundamentally undermine its provisional nature and contravene clearly with the spirit of the Directive.
Yet, this is precisely the direction in which the EU is heading with its latest extension of temporary protection. Acting on a proposal from the Commission (COM(2024)0253), the Council has recently extended the duration of temporary protection now until March 2026. Such an outcome is possible only through a strained interpretation of Article 4(2), effectively giving the Council the ability to prolong protection indefinitely if it chooses to do so.
Why, then, is the Council pursuing this path, which might be considered at best a stretched interpretation of the time limits and at worst a breach of the law? The Commission’s proposal justifies the need for another extension with the same rationale initially used to activate the Directive: to prevent the asylum systems of the Member States from becoming overwhelmed. The same proposal also reveals that as of June 2024, only 53,000 applications for international protection had been lodged, compared to 4.19 million registered for temporary protection. According to the Commission, the relatively low number of international protection applications is a testament to the efficacy of the Temporary Protection Directive in preventing the Member States’ asylum systems from being overwhelmed.
As we near the third year since the Directive’s activation, one might wonder why concerns about overburdened asylum systems and a persistent state of unpreparedness still linger. The core of this issue lies in a circular logic: Member States chose to keep their asylum procedures closed to individuals under temporary protection, thereby preserving the very risk of overburdened systems that they invoke as a reason to maintain temporary measures. It is critical to note that denying access to the asylum procedure is not mandated by the Directive, but merely allowed. Article 19(1) states that “Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration”. By opting to implement the Directive in this manner, Member States effectively ensure that the fear of overwhelmed asylum systems remains as a justification for repeatedly extending the Directive.
In fact, the Temporary Protection Directive has proved remarkably convenient—so much so that earlier plans for its repeal have been shelved. In 2020, the Commission proposed replacing the Directive with an “immediate protection” scheme, envisaged under the New Pact on Migration and Asylum and initially conceived as part of the Crisis and Force Majeure Regulation. This proposed scheme differed by imposing a strict one-year time limit, after which standard asylum procedures would resume, and by ensuring beneficiaries the same rights as those granted to recipients of subsidiary protection. Yet, it was the immediate protection scheme that ended up shelved. Meanwhile, the Temporary Protection Directive has not only survived but has also become firmly entrenched as a central component of the EU’s asylum management strategy.
The persistent reliance on provisional arrangements, however, undermines the established architecture of international protection by transforming what was designed as a transient emergency response into a prolonged mechanism. Interestingly, the European Commission itself had highlighted this risk in the Explanatory Memorandum accompanying its proposal for Temporary Protection (para.2.3.), noting: “Temporary protection is sometimes criticised by those who consider that in certain Member States it is implemented as an instrument that can be used to circumvent or even evade the obligations flowing from the Geneva Convention. There is indeed a real risk that the situation could get out of control. The European Union’s responsibility is crucial, and it must manifest its intention to ensure, by means of its legislative instruments, that that is not its objective”. Today, this risk appears more tangible than ever, affecting not only Ukrainians but also reinforcing a wider global trend in which temporary protections increasingly supplant established frameworks of international protection.
The EU’s implementation of temporary protection is often celebrated as a policy success, yet its true measure will depend not only on whether it averts an overwhelmed asylum system, but also on ‘how’ and ‘when’ it concludes. It is hoped that instead of allowing temporary protection to evolve into a makeshift long-term arrangement, the EU will ensure that this emergency measure is phased out responsibly and thus avoid the “situation out of control” that was foreseen from the outset.
Dr. Esin Küçük is a lecturer in law at Essex Law School (UK) and a Global Visiting Associate Professor at Notre Dame Law School (USA).
* The ideas and opinions expressed in GAR Blog publications are those of the authors; they do not reflect those of the Association for Migration Research.
** The image created by ChatGPT
