EU introduces one-year ‘temporary protection’ for persons fleeing war in Ukraine
For a duration of one year, ‘temporary protection’ allows Ukrainian refugees access in Romania to employment and self-employment, education, health care, housing and family unity – without bureaucratic headache.
This mechanism had been previously labelled dead law. No group of refugees was ever granted temporary protection under the Temporary Protection Directive since its adoption over two decades ago (although EU Member States have welcomed refugees on an individual basis).
As anticipated in our guide, in considering the max influx of displaced persons following the war in Ukraine, the ‘temporary protection mechanism’ provided by the Temporary Protection Directive was adopted by way of Decision of the European Council.
It applies directly as of 4 March 2022 in all EU member States (except Denmark) including Romania.
Hopefully, this paves way for other non-EU refugees who need our help and protection.
1. What is ‘temporary protection‘?
‘Temporary protection’ allows Ukrainian refugees access to employment and self-employment, education, health care, housing and family unity.
It contains most rights that come with refugee or subsidiary protection status recognised in Romania – without the bureaucratic headache or complex asylum procedures.
Activation of the ‘temporary protection mechanism’ for displaced persons fleeing Ukraine does not only help refugees, but will also alleviate pressure on national asylum systems struggling with a large number of asylum requests – especially of neighbouring countries welcoming a large number of refugees, like Romania.
To help EU countries deal with the max influx, the Directive includes a solidarity clause that provides EU countries should notify the Council and the Commission of their reception capacities and relocate people from countries where capacities are exceeded. Thus, it allows for transfers of refugees between EU States, based on a voluntary offer from a State and on the consent of the refugee.
2. What rights are granted?
Under the Directive, Ukrainian refugees have the following rights that must be granted to them by EU Member States:
- a residence permit for the entire duration of the protection – Once a Member State has issued this residence permit, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under the Decision.
- appropriate information on temporary protection,
- access to employment – but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.
- access to accommodation or housing,
- access to social welfare or means of subsistence,
- access to medical treatment,
- access to education for minors,
- opportunities for families to reunite in certain circumstances, and
- guarantees for access to the normal asylum procedure.
2. Who is eligible?
The following persons have the above-mentioned rights:
(a) Ukrainian nationals residing in Ukraine before 24 February 2022;
(b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,
(c) family members of the persons referred to in points (a) and (b).
The Decision of the European Council applies in a different way to another category of people:
…stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.
For this category, ‘Member States shall apply either ‘temporary protection’ or adequate protection under their national law’. Adequate protection is not further defined.
Furthermore, according to the Decision of the European Council:
Member States may also apply this Decision to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin.
and
Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons.
The Decision goes on to state that ‘in any event’ this group of fleeing people ‘should…be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin’.
3. How long does it last?
‘Temporary protection’ was activated for an initial period of one year, although it can be terminated early if the Council decides to end it.
After the initial year, temporary protection is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible.
4. How is it put into place in Romania?
Temporary protection’ applies directly as of 4 March 2022 in Romania.
The Romanian Government is to issue a decision on practical ways to ensure temporary protection in Romania in accordance with Article 131 (4) of Law on asylum in Romania.
Disclaimer: The information provided herein is in no way exhaustive and does not, and is not intended to, constitute legal advice. Readers of this Article should contact their attorney to obtain advice with respect to any particular legal matter.