Temporary Protection: a momentary lapse of reason

On 8 March, the European Commission presented its one-year report on the application of temporary protection to people fleeing the Russian war of aggression against Ukraine. Twenty days later, the European Parliament’s Committee on Civil Liberties adopted its position on four key texts of the new Pact on Migration and Asylum

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Temporary Protection: a momentary lapse of reason*

On 8 March, the European Commission presented its one-year report on the application of temporary protection to people fleeing the Russian war of aggression against Ukraine. Twenty days later, the European Parliament’s Committee on Civil Liberties adopted its position on four key texts of the new Pact on Migration and Asylum proposed by the Commission in September 2020, paving the way for what will be no doubt difficult negotiations with the Council. Many had hoped that lessons would be learned from this exceptional effort of solidarity and protection, and that it would breathe new life into an ailing common asylum policy. Would this new model, which had been successfully tested, serve as an inspiration? The answer is clear, and it is negative.

Is this something to be surprised by and regretted? Not if one puts the issue in the context of the short history of the European Union’s ‘Home Affairs’ agenda.

In October 1999, the European Council, at a special meeting in Tampere under the Finnish Presidency, adopted a programme which laid the foundations for a future area of freedom, security, and justice. It affirmed the ambition to establish a common European asylum system based on the full application of the Geneva Convention. Short-term objectives were set, in particular a clear and enforceable determination of the Member State responsible for examining an asylum application (we will come back to this). A long-term ambition was affirmed: to introduce a common decision-making procedure and a uniform protection status. In other words, to make the European Union an integrated protection area, regardless of the reason for the application and the place where it is submitted.

Was this a sudden burst of political voluntarism with no future? Not really, since this language directly inspired the legal bases of the common asylum policy introduced by the Lisbon Treaty. Without even waiting for this deadline, the institutions, spurred on by the European Council, and subject to regularly postponed deadlines, began a forced march towards common minimum standards first, and then towards an approximation of national provisions on reception conditions, procedures, and status. In addition to this wave of legislation, an external dimension was added (support for third countries of first reception, in particular through the promotion of resettlement), a support body was created (the “Office”, precursor of the future “Agency”) and financial resources were allocated in proportion to the responsibilities assumed by the Member States in terms of reception.

However, there remains the question of solidarity, a major political issue but also an institutional constraint governing policy on border controls, asylum, and immigration under Article 80 of the Lisbon Treaty. For the signatories of the Schengen Agreement, and of the Convention which subsequently gave it substance, the creation of an area without internal border controls was inconceivable without firm control of the external border, based on mutual trust; nor the adoption of a mechanism to avoid an imbalance in the processing of applications for international protection. This is why a convention signed in Dublin established, among other criteria, the principle of the responsibility of the State of entry into the Schengen area.

This principle was incorporated into Community law by means of a regulation, which has been the subject of many (attempted) amendments and is now the source of all ills. Generally recognised as generating cumbersome and inefficient procedures, this mechanism was progressively perceived as constituting negative solidarity, by shifting the responsibility to the border Member States for dealing with an increasingly strong demand for protection addressed to the European Union. And the explosion occurred during the 2015-2016 crisis following a (deliberately?) clumsy proposal by the Commission to compensate for this imbalance by compulsory relocation of asylum seekers.

Unsurprisingly, recognising the need for strong external borders and a common asylum system, which could provide all the necessary support to Member States under pressure due to their geographical position, President von der Leyen, as part of the Commission’s priorities to ‘promote the European way of life’, therefore committed to proposing a new Pact on Migration and Asylum, involving the reopening of discussions on the reform of the Dublin rules. This package of proposals was presented in September 2020, after an intense consultation process. Amongst many other things, two elements immediately caught the attention: despite certain announcements, the fundamental principles of the Dublin system remained at the heart of the system, and the repeal of the Temporary Protection Directive was envisaged after the adoption of a new regulation to apply to situations of crisis and force majeure.

Much has been written about the Union’s remarkable speed of reaction to the massive displacement of populations following the outbreak of the Russian invasion, with the unanimous decision of the Council on 4 March to apply the 2001 directive, which had remained a dead letter until then. We will not come back to this. Nor will we go back over the outpouring of generosity that accompanied its implementation, or the Commission’s commendable efforts to support governments, local authorities, and civil society organisations in the search for solutions to the many new problems that arose. Nor on the reasons why it had remained a dead letter until then.

In its recommendations to the Swedish and Spanish Presidencies of the Council, the United Nations High Commissioner for Refugees stressed that the European Union’s response to the situation in Ukraine should not be the exception, but rather the prototype of a fair, effective and coordinated response to the demand for international protection, while noting that certain aspects of the proposed regulation on crisis and force majeure situations constitute significant derogations from obligations under international law as well as the acquis communautaire.

The Commission’s message is terse: the circumstances have demonstrated the relevance of the Temporary Protection Directive, which should therefore be retained while ensuring its coordination with the proposed Regulation. The analysis of the European Asylum Agency, published in parallel to that of the Commission, is however more elaborate, offering several avenues for reflection in its conclusions.

But in the meantime, the common policy has remained open. Remarkably silent since the Commission presented its ‘new pact’ despite the difficulties encountered by the latter, the European Council spoke out in February, responding to the concern of certain Member States about the increase in asylum applications in 2022. The conclusions consolidate a line with unchanged fundamentals: stronger cooperation with third countries, more effective removal practices, better control of external borders, strengthening the fight against trafficking and smuggling (in addition to this new concept of ‘instrumentalisation’). That seems to have been a difficult debate to set in motion a process, leading to the June European Council.

Beyond the self-congratulation, there is no trace of the experience gained from the application of temporary protection. Is this disappointing? No, when we come back to the raison d’être of the instrument: as asylum remains an individual right, it is important, to preserve this right, to provide for a provisional legal regime to avoid the overloading of the services of the host countries, in the event of a massive influx while awaiting a return to normalcy. It is not surprising, therefore, that there is unease about the discrimination noted in relation to asylum seekers (the 2001 directive having been adopted in a context where people’s minds, stricken by the consequences of the war in ex-Yugoslavia, were clearly inclined to be more generous).

Of course, lessons could have been learned: the free choice of applicants for international protection, as to their establishment, is not necessarily an alternative to be rejected in the face of the bureaucratic mechanics of Dublin. But everything seems to indicate that temporary protection will remain a parenthesis. A legal parenthesis since its application is limited to a maximum of three years. A political parenthesis, in the hope that the conditions will be re-established for the return, if they so choose, of those who benefit from it, to contribute to the reconstruction of Ukraine.

* With all due respect to Pink Floyd 

This article was first published in French by Confrontations Europe.

(Photo credit: Car Loss Voniya from Pixabay)