Sleeping BEaUty – The Revival of the EU Temporary Protection Directive

Ms Jannicke Martin, Candidate, LLM in Human Rights Law 2021/22, winner of the EU Asylum and Immigration Law Prize 2022, University of Edinburgh

Introduction

Faced with the reality of mass arrivals of displaced people following Russia’s large-scale invasion of Ukraine, the established mechanisms of the EU asylum systems ran a substantial risk of collapsing under the migratory pressure. Determined to avoid putting the efficiency of timely asylum processes and, consequently, the asylum seekers‘ rights for international protection in jeopardy, there was instant and wide-spread support among EU interior ministers to make use of the previously dormant EU Temporary Protection Directive (TPD).

Designed to ensure temporary protection in the event of a mass influx of displaced people, the TPD contains provisions meant to streamline asylum procedures and to circumvent the concrete impact on the operations of the asylum system. In addition to procedural provisions, the Directive further enables protection-holders to benefit from social and welfare rights such as residence permits, access to employment and banking services, as well as free movement in EU countries. Despite this rich legal toolbox, the TPD has not been put to use since its inception in the wake of the Balkan war. With a two-decade long history of non-implementation, there are concerns about the contemporary adequacy of the instrument’s ability to facilitate equitable burden-sharing.

Taking a Closer Look at the TPD‘s Legal Toolbox

Upon its activation by means of a unanimous Council implementing decision on 4 March 2022, the TPD’s in-built solidarity mechanism (Art. 25), which functions on the basis of both financial and physical reception burden-sharing, began its work in balancing the efforts between Member States in receiving and bearing the consequences of the mass arrival (Preamble). Instead of relying on hierarchical criteria as envisioned by the Dublin III Regulation (Chapter 3), the TPD is set out to ensure the capacity-sensitive redistribution of applicants among all EU Member States, apart from Denmark. This flexible burden-sharing mechanism seems to make the directive a time-sensitive and efficiency-based framework to address situations of mass influx. So why wait all this time and only activate the tool now?

Pursuant to Article 5(3)(c) and 25 of the TPD, the Council implementing decision installs the use of a ‘Solidarity Platform’ through which Member States inform each other of their reception capacities and number of persons enjoying temporary protection in their territories (para. 20). However, as the 2016 Commission Evaluation Report on the TPD reveals, the assessment of a state’s reception capacities is inherently voluntary in nature and not pursuant to a common capabilities framework. As such, the mechanism encroaches on the principle of fair responsibility sharing and may run the risk of violating Article 80 of the TFEU. Yet, with solidarity at the forefront of the EU Agenda on Migration, the TPD‘s central tenet cannot be seen as a lost cause, but as one in need of a more refined operational legal framework.

In Solidarity We Trust

The present absence of a central record on member states’ reception capacity solicits the development of a combined capacity index on the distribution of persons eligible for temporary protection. Without legally-fixed and comparably calculated key indicators that record the distribution of migration pressures, there cannot exist a fair basis for objective measurement of the Member States’ actual capabilities. Instead of EU Member States communicating “in figures or in general terms – their capacity to receive such persons,” (TPD, Art. 25 (1)), reliable quantitative indicators would enable a united and functional capacities overview that can help alleviate interconnected issues associated with member states’ varying expertise in responding to high pressure migration situations.

Partially drawing on a study by the European Parliament Directorate General for Internal Policies, five potential competence measures should represent the baseline for such shared statistics. Firstly, GDP per capita, as well as population and territorial size should serve as indicators representing the capacity to financially support and physically accommodate displaced persons in the country. Member states with comparatively high GDPs and larger population have the means to carry more of the burden-sharing. In order to assess the capacity to physically accommodate asylum seekers, the inverse variable of population density must be considered. By weighing population and territorial size, the measure can help determine and account for a lower capacity.

It is necessary, in the spirit of solidarity, to further mediate these key indicators in order to avoid unproportional distribution. An asylum-seeker and refugee numbers index, as currently developed by the EU Justice and Home Affairs Council (Press Conference, 18:23), could represent and acknowledge the previous efforts of applicant accommodation, as to take the real-time strain of a state’s asylum system into consideration and gauge current capacities more accurately. Lastly, other key social indicators associated with resident rights, such as but not limited to health care, housing opportunities, education, and access to the labor market, represent crucial tools to assess the availability of the TPD’s set minimum protection rights standards (Art. 12-14) in each member state. As as result, a combined capacity index for unified information-sharing help identify holes in member states capacity framework, but simultaneously strengthen other provisions within the directive.

Conclusion

The activation of TPD is a hopeful sign in promoting European solidarity in the legal framework of migration and asylum. Granted a successful operational makeover of the burden-sharing mechanism, the directive’s underlying objective can still contribute to a fair sharing of responsibility as foreseen by the TFEU. A standardized capacity overview may not only help the Council in matters of urgency to efficiently “recommend additional support for Member States affected” (TPD, Art. 25 (3)), but also enable better cooperation with other agencies, such as the European Union Agency for Asylum, as proposed in the 10-Point Plan on stronger European coordination.

Nevertheless, with the looming climate migration of an estimated 216 million people looking to escape environmental hotspots by 2050, the EU will have to constantly reevaluate its available redistribution instruments and decide when and how they need to be revised and potentially reinvented. Only in a joint commitment to enable unified progress will European solidarity be upheld.
(Legal Status as of 12.04.2022)

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