Navigating Uncertainty: The European Union’s Migration Policy and the Future of Temporary Protection

The endless debate on the European Union’s migration policy has seen several high points in recent months.
At the end of the last Council meeting under the Swedish Presidency at the beginning of June, all hopes were raised following an agreement reached by a qualified majority

*****

Navigating Uncertainty: The European Union’s Migration Policy and the Future of Temporary Protection

The Pact negotiation: running the last mile. 

The endless debate on the European Union’s migration policy has seen several high points in recent months.

At the end of the last Council meeting under the Swedish Presidency at the beginning of June, all hopes were raised following an agreement reached by a qualified majority on two of the main texts making up the “new pact” presented by the Commission in autumn 2020. The Council was therefore in full working order and could begin inter-institutional negotiations with the European Parliament, which had been waiting on tenterhooks since April, and even longer for certain elements of this complex legal package.

The political drama erupted a few weeks later at the meeting of the European Council: Poland and Hungary, which were in the minority at the Council, rebelled against what they considered to be a failure to honour a political commitment by the Heads of State and Government to seek consensus on these sensitive issues. This led to a deadlock in the deliberations and prevented the adoption of a draft text of conclusions which, despite being quite insignificant, was downgraded to the level of conclusions by the President of the European Council.

Political will (or the fatigue of endless negotiations?) remained the order of the day. The Spanish Presidency continued the trialogues at full speed and, to this end, unblocked the only text still missing within the Council from the package intended to provide the Union and its Member States with a comprehensive response to the challenges arising from ever-increasing migratory pressure.

Another brick in the wall

This proposal, which is no simpler than the other components of the “pact”, aims to set up special arrangements in the event of a crisis or force majeure, i.e., a mass influx of third-country nationals. It provides for derogations from the future “ordinary law” regime in terms of reception and procedures applicable to migrants potentially in need of international protection, as well as greater solidarity between Member States. The initial version was enriched by the incorporation of provisions inherited from another initiative, now obsolete, aimed at equipping Member States to deal with situations of instrumentalization, i.e., the deliberate organisation by a third country (or a non-state actor) of migratory pressure at the external border likely to undermine their internal security. Inspired by the Belarus blackmail, this initiative has only served to reinforce the mistrust of defenders of the right to international protection regarding such derogations.

And yet it was this mechanism that, in its first version, was designed to replace the temporary protection that was perceived as ineffective. But it was clear from the outpouring of solidarity that followed Russia’s aggression in Ukraine that this instrument, designed in 2001, could not be shelved. So, a way had to be found to organise the legal coexistence of the two regimes.

The attempt leaves one sceptical. It is stipulated that the provisions on crises, force majeure and instrumentalization are complementary to those on temporary protection once the latter has been triggered, which leaves open at least two questions: firstly, how can a system, based on the principle of an individual examination of protection needs, be combined with the (temporary) granting of such protection to groups of beneficiaries defined by a Council decision? Should the situation of two “influxes” of distinct populations be considered, this would inevitably raise the question of “double standards”. Secondly, what criteria are likely to influence the triggering of temporary protection despite the availability of this crisis mechanism (probably the fact that many Member States are likely to be affected at the same time)?

Be that as it may, after the summer break, it took a new sequence of tensions, first in the Council and then in the Permanent Representatives Committee, to reach a compromise, which was rejected by Poland and Hungary equally. Both countries once again voiced their dissatisfaction by blocking the adoption of the passage on migration in the declaration adopted at the end of the informal European Council meeting in Grenada. However, this text can therefore be added to the broader package submitted to the trialogue, a package in which many contentious points will have to be sorted out by the beginning of 2024 at the latest in view of finalizing an agreement – if any – by the end of the legislature. At any rate, the implementation of these arrangements is scheduled to take place two years after the entry into force of the texts that comprise them, i.e., for the most optimistic, by the end of 2025 at the earliest!

And what about temporary protection?

Could temporary protection therefore still have a bright future? It is doubtful: the political considerations that have paralysed its application in other circumstances remain. But perhaps it would be wise to learn all the lessons from the current experience. For more than 20 months now, millions of people have benefitted from this measure, the relevance of which many doubted. An initial humanitarian emergency phase of generous solidarity and relative administrative chaos has been followed by structural measures to address the challenges of access to housing, education and health care for families destined to stay in host communities for longer than expected (even though much undoubtedly remains to be done on the labour market).

In short, the host Member States have embarked on a process of integration while, in principle, the future of beneficiaries of temporary protection remains uncertain. On the one hand, there is nothing to predict a rapid end to the conflict. On the other hand, this system is by definition limited in time: the Council has already decided to extend it for a third and final year until the beginning of March 2025. But no one knows whether the conditions will then be met for the Ukrainian authorities’ wish to see their nationals return en masse to help rebuild the country to become a reality.

So, it’s not too early to start preparing for what comes after. To put it simply, there are two possible options. The first is in line with the very logic of temporary protection. At the end of its application, we would therefore be back to the principle of examining an individual right, with each request being considered according to the specific situation of the person concerned. Assuming that the national administrations concerned are equipped to cope with this overload, the overall result could therefore vary, depending for example on the situation in the region of origin of the person concerned. A less chaotic alternative might be to offer resident status, irrespective of any need for protection, to Ukrainian nationals who so wish, by reducing, for example, the condition for obtaining long-term resident status from five to three years as part of the current revision of the directive regulating it.

The continuation and end of the temporary protection offered to Ukrainians fleeing Russian aggression will therefore be rich in lessons. It will test the capacity of the European Union and its Member States to manage the consequences of a massive and lasting influx of third-country nationals, whatever their nature and origin. Against a backdrop of economic, demographic, and geopolitical transitions, will the EU be able to take up the now historic phrase “Wir schaffen das!”?

This article was also published in French on Confrontations Europe’s website.

(Photo credit: Wikimedia Commons)