| European Union directive | |
 | |
| Title | Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof |
|---|---|
| Made by | Council |
| Made under | Art. 63(2) TEC |
| Journal reference | L 212, 7.8.2001, p. 12–23 |
| History | |
| Date made | 20 July 2001 |
| Entry into force | 7 August 2001 |
| Other legislation | |
| Amends | — |
| Replaced by | — |
| Current legislation | |
TheTemporary Protection Directive (TPD; Council Directive 2001/55/EC) is a 2001European Union directive providing for immediate, temporary protection fordisplaced people from outside theexternal border of the Union, intended to be used in exceptional circumstances when the regularEU asylum system has trouble handling a "mass influx" ofrefugees.[1][2][3][4] It was introduced in the aftermath of theYugoslav Wars, but was not used before 2022.[1][5] When invoked, it requires EU member states to accept refugees as allocated based on their capacity to host them, following a principle of solidarity and a "balance of efforts" among member states.[2][6][7]
On 3 March 2022, in response tothe refugee crisis caused by the2022 Russian invasion of Ukraine, EU ministers unanimously agreed to invoke the Temporary Protection Directive for the first time in its history.[5]
With the entry into force of theTreaty of Amsterdam on 1 May 1999, the European Union gained authority to legislate in the areas of migration and asylum policy. At theEuropean Council meeting held inTampere in October 1999, several legislative instruments instituting aCommon European Asylum System (CEAS) were proposed. Together with the other instruments, the Temporary Protection Directive was passed in 2001 in the aftermath of theYugoslav Wars.[1][8] The directive has been in effect since 7 August 2001,[9] but was not invoked until 2022.[5]
The Temporary Protection Directive aims to harmoniseEuropean Union policies with respect todisplaced people and increase solidarity and collaboration between member states in arefugee crisis.[3] The directive discusses procedures for triggering and ending temporary protection, rights of people under temporary protection, and special provisions for specific categories of people (survivors of trauma,unaccompanied minors, and potential security threats).[3]
Temporary protection, which is distinct fromasylum, can last up to three years depending on circumstances.[2][10] People under temporary protection can obtain aresidence permit without the complicated bureaucracy normally associated with seeking asylum.[11] They are allowed to work and accesssocial welfare, and are entitled to protection throughout the EU.[12] Children must be allowed to access education the same way as EU residents.[7]
To invoke the directive, theEuropean Commission must first make a proposal to member states, and aqualified majority of theCouncil of the European Union (generally at least 55% of EU countries, representing at least 65% of the union's total population) needs to vote in favour.[2] The directive is intended to be invoked in the event of a "mass influx" of refugees; the definition of "mass influx" was intentionally left vague and is meant to be defined on a case-by-case basis, in order to allow flexibility in its application.[4][13]
When invoked, the directive compels all member states (except Denmark, which has an opt-out clause) to accept refugees, issue residence permits, minimisered tape, and take other steps to assist displaced people.[2] Refugees are to be distributed among member states on a voluntary basis, based on member states' capacity to host them.[11][2][6][7]
The directive originally did not apply to Ireland due to its opt-out clause, but on 11 April 2003, the Irish government stated its desire to opt in, which was accepted by the European Commission.[14][9][15][16] However, as of 2016 the Irish government has nottransposed the directive.[16]
In March 2022, theCouncil of the European Union invoked the Temporary Protection Directive for the first time in its history, in response tothe refugee crisis caused by theRussian invasion of Ukraine. TheEuropean Commission proposed invoking the directive on 2 March 2022,[17] and EU ministers unanimously agreed to invoke it on 3 March.[5][18] The decision was unanimous despite the fact that Hungarian ministerGergely Gulyás had expressed opposition hours before the decision.[19] The Council formally activated the directive on 4 March 2022.[20][18][21]
The European Commission published guidelines for how member states should implement the directive in light of the crisis, and individual member states have announced specific requirements for how refugees can apply for protected status.[22] It was reported that the directive would include "non-Ukrainian nationals andstateless people legally residing in Ukraine", if they are unable to return to their home countries.[17] Although Denmark is not bound by the TPD, Danish authorities have announced a similar "Special Act Status" for Ukrainian refugees.[22]
The legal blogLawfare said it was surprising that the Council's decision was unanimous, pointing out that Hungary and Poland had opposed burden-sharing measures during the2015 refugee crisis.Lawfare said that those countries' support for invoking the TPD in 2022 was probably driven by "popular sympathy for the Ukrainians, and the specter of further Russian westward expansion".[18]
The directive's possible use has occasionally been discussed in the years since it was passed.[1]
In 2011, the EU received more than 300,000 refugees, partly due to theFirst Libyan Civil War. The Italian and Maltese governments argued for using the Temporary Protection Directive,[10] and the European Commission discussed invoking it to address tension between Italy and France over their differing refugee policies. However, the directive was not invoked, partly due to opposition from the German government.[6]
Amid the2015 European refugee crisis, theUNHCR, some members of theEuropean Parliament, and activists called for the directive to be invoked.[10]
EU foreign policy officialJosep Borrell discussed the possibility of invoking the directive in 2021 to aid Afghan refugees following theUnited States military's withdrawal from Afghanistan.[1][2]
There has been discussion of the directive in the context ofclimate refugees, but it is thought that it would probably not be applicable due to the gradual nature ofclimate change.[4][13]
In 2020, a proposed regulation stated that the Temporary Protection Directive "no longer responds to member states’ current reality" and should be repealed.[2]
John Koo, a lecturer in EU law atLondon South Bank University, has argued that the directive benefits neither EU member states nor refugees themselves, and that its mechanisms contain problems.[10]