This article is 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 France’s strict interpretation of the EU Temporary Protection mechanism by focusing on its legal challenges and humanitarian consequences.
France’s Strict Interpretation of the EU Temporary Protection Mechanism:
Legal Challenges and Humanitarian Consequences
Lina Megahead
In response to Russia’s invasion of Ukraine, the European Union activated the Temporary Protection Mechanism (TPM) for the first time in March 2022. This decision allowed millions of displaced individuals immediate access to work, healthcare, and housing. The large influx of displaced persons from Ukraine was a key factor that triggered its activation. However, the flexibility of the criteria regarding the massive influx of displaced persons, combined with the inability to secure a qualified majority for its activation in the past, suggests that geopolitical considerations played a significant role in its implementation. A clear example is the Syrian refugee crisis in 2015 that failed to meet the required majority for activation, regardless of the substantial number of displaced persons. Despite its success in offering a lifeline to many, France’s strict interpretation of the mechanism raised questions about its implementation and alignment with the humanitarian and transitional goals set by the EU.
Questionable Determination of Beneficiaries: A Controversial Legal Framework
The EU Council’s implementing decision identified three primary beneficiary categories, but excluded two significant groups: (i) The Ukrainians unable to prove their presence in Ukraine during the invasion and (ii) the third-country nationals temporary residing in Ukraine. These exclusions included individuals such as asylum seekers, students, or temporary residents. For Ukrainians not physically in Ukraine on February 24, 2022, or foreign nationals residing in Ukraine, eligibility was left to the discretion of member states. This undermines the mechanism’s humanitarian intent, which should prioritize those in need regardless of their legal or migratory status.
Consequences of an Imperfect European Framework: The French Approach
Article 2 of the implementing decision defines beneficiaries as Ukrainians present in Ukraine during the war. While Recital 14 encourages member states to extend protection to those temporarily abroad for professional or personal reasons, this, however, remained as a recommendation. Consequently, the Ukrainians outside Ukraine at the time of the invasion were left at the mercy of the member states’ discretion. France adhered strictly to EU eligibility criteria, limiting protection to Ukrainians who were present in Ukraine during the offensive. This restrictive policy excluded categories like Ukrainian nationals on temporary residence permits for studying or work, as well as other categories like third countries students in Ukraine.
France’s approach reflects a narrow interpretation of the TPM. The French ministerial instruction of March 10, 2022, explicitly excluded Ukrainian nationals with expiring residence permits, demonstrating a strict focus on the presence-in-Ukraine criterion. This exclusion created a division between groups of Ukrainians, some being granted automatic protection, while others, in equally vulnerable situations, were left without recourse.
Both the EU decision and France’s application of the TPM emphasized eligibility based on physical presence in Ukraine during the attack rather than the inability to return safely. This contrasts with international protection norms, which prioritize risks upon return. Thus, the Ukrainians outside Ukraine during the invasion or those with expired permits found themselves in legal limbo.
A Case Study: Ambiguity and Exclusion in Practice
To illustrate the legal consequences, consider the case of a Ukrainian female national whose residence renewal application was denied. On June 7, 2022, the Bordeaux Administrative Court of Appeal ruled in her favor after the prefecture rejected her second request, made in March 2022 following the invasion, claiming she “was not obliged to return specifically to Ukraine.” While the Court granted her request based on her private and family life in France, the prefecture’s reasoning revealed the flawed application of the TPM. It ignored her inability to safely return to Ukraine, underscoring the shortcomings of both unclear EU guidance and France’s restrictive interpretation.
The Need for Clearer Binding EU Guidelines
The 2001 Temporary Protection Directive provides no precise definition of beneficiary categories, leaving it to the Council to determine eligibility during each crisis. While this flexibility allows responses to varied situations, it has led to inconsistencies and gaps in implementation. The lack of enforceable EU guidance, combined with the discretionary power of member states, has resulted in uneven protection across the EU.
France’s strict adherence to EU criteria highlights the tension between flexibility and uniformity:
- Flexibility allows the EU to adapt to varying crises but fosters inconsistencies in member state responses applying differing interpretations.
- Uniformity ensures coherence but risks overlooking particular vulnerabilities, such as the exclusion of certain affected groups
To address these challenges, future reforms should focus on:
- Clarify Eligibility: Council decisions should provide clearer, binding definitions of eligible categories to avoid arbitrary exclusions.
- Expand Humanitarian Considerations: Broader criteria aligned with the TPM’s transitional and humanitarian intent could minimize disparities in member state interpretations.
Conclusion
The activation of the TPM for Ukraine demonstrated its potential to respond rapidly to crises. However, its implementation revealed significant gaps in ensuring equitable and effective protection. Addressing these shortcomings is vital to reinforce the EU’s capacity for collective action in future humanitarian crises.
Lina Megahead has a PhD in Public Law and a Researcher at Le Mans University (France).
* 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
