The war in Ukraine has brought about an unprecedented change in the way the European Union addresses migration-related issues. Following the invasion of Ukraine by Russian forces in late February 2022, the Council of the European Union adopted an Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC, for the first time activating its temporary protection mechanism. While the Directive’s provisions reflect the founding principles of the European Union, the specific vulnerabilities of international migrants require suitable social provisions to afford them a standard of living as required to ensure their health and well-being for the duration of the protection provided by the Directive. The purpose of this article is to discuss the nature of the challenges arising from this first application of the ‘Temporary Protection Directive’, as well as the impact of these challenges on the Directive’s efficacy and on the scope of the protection for the displaced persons covered by it. It argues, first, that the joint interpretation of the Directive and the Council Decision significantly limits the personal scope of the protection, leaving certain categories of migrants behind. The paper then goes on to examine the Directive’s substance and suggests that a broad interpretation of its social protection provisions reveals new difficulties regarding the financing and sustainability of this protection and its sustainability.
The invasion of Ukraine by Russian Forces on 24 February 2022 triggered one of the largest and fastest movements of refugees that Europe has witnessed since the end of the Second World War. By 21 March 2022, almost 3.5 million displaced persons had crossed Ukraine’s borders into neighbouring countries, notably Poland, Slovakia, Hungary, and Romania. The European Council firmly condemned Russia’s military invasion, stating that ‘it is not only Ukraine that is under attack (…) International law, rules-based international order, democracy and human dignity are also under attack’. Since the implications of the conflict were held to undermine ‘European and global security and stability’, on 4 March 2022 the Council established the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC. This Decision activated the temporary protection provided for therein.
Council Directive 2001/55/EC, also known as the ‘Temporary Protection Directive’ (TPD), was adopted as a robust response to the refugee crisis resulting from conflicts following the break-up of former Yugoslavia in the 1990s. The TPD has as its major purpose the establishment of minimum standards for giving temporary protection to displaced persons from third countries who are unable to return to their country of origin. It also seeks to promote ‘a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons’. Indeed, while international migration may be a positive experience for some individuals, it carries the potential of exposing affected individuals to a number of vulnerabilities. Such vulnerabilities include extreme poverty, gender inequality, separation of families or lack of access to education, health, stable and decent work, housing, food or water. More specifically, migrants who are compelled to move by threatening external circumstances, such as current Ukrainian migrants, ‘are at greater risk of human rights violations throughout their migration, are less likely to be able to make choices or to formulate exit strategies and are therefore more likely to migrate in conditions which do not respect their dignity’. Migrants in these situations require assistance, but it is often unclear what services and goods are most appropriate, how they should be provided, and by whom.
The TPD constitutes, in this regard, an important step towards the social protection of those displaced against their will, in that it provides an exhaustive legal framework for such protection granted in addition to the existing EU humanitarian aid policy. Moreover, it offers a medium-term response on vital matters, thus going further than humanitarian aid which is, by its very nature, short-lived and of limited scope.
For this temporary protection to be effectively deployed, however, the Council must first establish that the displaced persons fleeing amount to a ‘mass influx’. As this decision is subject to a qualified majority of votes, the TPD had never before been activated, although Italy, supported by Malta, unsuccessfully submitted a proposal in 2011. In this sense, the recent adoption of the Decision establishing the existence of a ‘mass influx’ of displaced persons, and the resulting activation of the TPD, opens up new ground in the history of European migration policy and highlights emerging challenges for the interpretation of TPD provisions. The purpose of the present study is to examine two particular challenges which may limit the scope of the TPD and affect its primary purpose to promote solidarity and burden-sharing among EU Member States.
The first challenge concerns the personal scope of the Directive’s temporary protection. The joint interpretation of the TPD and the Council Decision limits the personal scope of the mechanism significantly, leaving some categories of residents of Ukraine behind (section 1). The second issue concerns the social protection-related provisions of the TPD. Despite their innovative features, their substance remains unclear. Accordingly, the Council Decision and the Member States’ practice relating to the Ukraine crisis shed some new light on the possible extension of social protection in concrete cases of mass influx (section 2).
This analysis will be conducted through comparison with Member States’ international obligations. The TPD provides that the temporary protection granted ‘should be compatible with the Member State’s international obligations as regards refugees’ and, with respect to the treatment of persons, that Member States ‘are bound by obligations under instruments of international law to which they are party and which prohibit discrimination’. For this reason, instruments of international law will be examined and compared with EU Member States’ commitments under EU law.
1. The limited personal scope of temporary protection for displaced persons from Ukraine
The limited personal scope of the Directive is reflected notably in the exclusion of residents of Ukraine who are nationals of third countries from the protection offered by the Directive (1.1). Although the Directive provides for some flexibility in this respect, this flexibility has not been used by the majority of Member States (1.2).
1.1 The exclusion of third-country nationals residing in Ukraine
Council Directive 2001/55/EC grants temporary protection to displaced persons from third countries who are considered ‘third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated’. The Directive also states that the Council Decision establishing the existence of a mass influx shall include ‘a description of the specific groups of persons to whom the temporary protection applies’. The text of the Directive itself remains largely open concerning the question of admission of persons under the TPD irrespective of their nationality, their status or their situation in the State hit by crisis.
Against this background, the Council Decision of March 2022 appears to limit the Directive’s personal scope. Indeed, the Decision establishes that the temporary protection will be afforded only to Ukrainian nationals residing in Ukraine before 24 February 2022 and their family members, as well as 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 their family members’. The TPD thus covers, in the specific case of the Ukrainian war, only Ukrainian nationals or refugees already established in Ukraine, and not all those fleeing the conflict in Ukraine generally. One large category of individuals is thereby excluded from the temporary protection by the Council Decision: third-country nationals lawfully residing in Ukraine. This category of the population of Ukraine accounts, today, for almost 5 million people.
Excluding nationals of third countries who were residing in Ukraine from international protection may be inconsistent with various provisions of international law. First, it challenges Article 3 of the Convention Relating to the Status of Refugees, pursuant to which the protection of refugees shall be accorded without discrimination based on race, religion or country of origin. Second, it challenges the principle of non-refoulement. This principle, which is a cornerstone of international asylum and refugee law, prohibits States from returning individuals to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation. In line with these international instruments, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been interpreted by the European Court of Human Rights as implicitly prohibiting the return of anyone to a place where they would face a ‘real and substantiated’ risk of ill-treatment in breach of the prohibition of torture or inhuman or degrading treatment or punishment.
If the purpose of the TPD is to ensure ‘an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union’, the Council Decision, when excluding third-country nationals from that protection, seems to undermine the very purpose of the Directive and the international and European commitments of EU Member States.
1.2 A missed opportunity to widen the TPD’s personal scope
The Directive leaves some margin of manoeuvre for Member States who are willing to broaden the scope of coverage for migrants in each crisis. Under its Article 7, Member States may extend temporary protection ‘as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision (…) applies’. The Council Decision regarding the war in Ukraine has fully integrated this openness and allowed States to include nationals of third countries other than Ukraine in their protection, but on two conditions: they had to be residing legally in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit, and they have to be unable to return in safe and durable conditions to their country or region of origin. The Member States, however, remain entirely free to choose whether and how they will extend the protection of the TPD to third-country nationals. It is worth looking at this issue more closely.
First, even where Member States decide to extend their protection to nationals of third countries, the text of the Council Decision leaves behind one category of migrants: those who were living ‘irregularly’ in Ukraine before the beginning of the war. This category of the population of Ukraine was estimated to comprise between 40,000 and 60,000 people in 2019. Most of them arrived in Ukraine fleeing military conflicts, the threat of persecution and mass violations of human rights in their own countries and have lived in Ukraine for quite a long time. This narrow interpretation of the TPD made possible by the Council Decision thereby creates a de facto discrimination against nationals of third countries, since only third-country nationals can be in Ukraine ‘illegally’. These persons are not covered by the TPD and will only be accepted in the territory of EU Member States under a state’s asylum procedure.
Second, in the context of the Ukraine crisis, the Commission appears in practice to have encouraged more openness without any legal basis. On its official website, in the section containing information for people fleeing the war in Ukraine, the Commission has highlighted that ‘all EU countries bordering Ukraine are allowing entry to all people fleeing war in Ukraine on humanitarian grounds regardless of whether or not [they] have a biometric passport’ and that ‘for all cases other than Ukrainian nationals, EU Member States shall admit on humanitarian grounds’. Additionally, according to the Commission’s website, even if third-country nationals do not hold a required short-stay visa, the EU Member States shall allow their entry with a view to facilitating the third-country national’s repatriation to their respective country of origin. Also in this case, irrespective of their nationality, all persons are entitled to immediate assistance and immediate information about their rights, including temporary shelter and the fulfilment of basic needs such as food and medicine.
Against this background, some EU Member States neighbouring Ukraine have decided to grant broader protection to those fleeing the war in Ukraine, including those present in Ukraine ‘illegally’. Slovakia, for example, allows entry into its territory to all third-country nationals coming from Ukraine, even those not complying with entry conditions under regular circumstances, including those who are not carrying any identification document. Romania, in turn, allows third-country nationals with a passport to cross into its territory and obtain a visa on arrival, and those without a valid passport to seek asylum at Romanian border points. Nonetheless, the Member States which have opted for greater flexibility in their scope of protection are still in the minority.
Poland, for example, as the EU member which has welcomed the largest number of people fleeing the war in Ukraine, has since the initial discussions on the Council Decision requested that protection be extended only to Ukrainian citizens and refugees, and decided not to admit displaced persons who were ‘illegally’ present in Ukraine from third countries. Similarly, France and Italy have excluded any admittance of ‘illegal’ migrants aboding in Ukraine into their territory.
Third, the disparity in the admission of migrants, born of the margin of manoeuvre granted to EU Member States, runs against the principle of solidarity. To the contrary, it promotes ‘forum shopping’ and an increased movement of migrants, especially of those present in Ukraine ‘illegally’. Faced with divergent admission procedures between Member States, these migrants, instead of selecting the nearest State, may have to travel further, under potentially precarious circumstances, to ensure their entry into EU territory under the TPD.
International human rights law and EU law embody a robust and broadly accepted set of legal instruments – to which EU members are parties – that prohibit differential treatment of persons based on their nationality. Basing the acceptance of Ukrainian residents solely on nationality and thereby discriminating between Ukrainian nationals and non-nationals leaves thousands of Ukrainian residents behind. In this regard, the temporary protection granted by the TPD and the Council Decision fails to comply with the Directive’s purpose and is incompatible with the Member States’ international human rights obligations.
2. The extended scope of the social protection provided for by the Directive
Besides establishing flexibility concerning the admission to EU territory (Article 8 et seq.), as well as establishing access to employed or self-employed activities (Article 12) and to suitable housing and medical care (Article 13), the TPD innovates in that it provides for ‘necessary assistance’ in terms of social welfare and ‘means of subsistence’ for the displaced persons protected under the Directive. The Directive and Council Decision do not provide any indication of the substance of this protection, nor do they mention the relationship between these provisions and the standard social assistance afforded to nationals. The vagueness of the Directive does not, however, lead to an open interpretation, since EU States are also bound by international commitments concerning social protection, in light of which it is possible to interpret the substance of the social assistance granted by the TPD (2.1). A broad interpretation of its substance opens the door to further questions concerning the financing of this protection, which is particularly costly for EU Member States (2.2).
2.1 The substance of the social assistance granted by the Temporary Protection Directive
Social assistance comprises ‘social benefits provided in cash to the population at large, or segments of the population, under schemes funded by general government and without direct contributions to the scheme by, or on behalf of, potential beneficiaries’. Both international and European law recognize the right to social assistance. Internationally, the universal right to social protection has been generally recognized, and it includes the obligation for States to work towards a non-contributory ‘safety net’. This ‘safety net’ has been extensively interpreted as being the ‘minimum core’ that ensures access to water and sanitation, foodstuffs, essential primary healthcare and basic shelter and housing, and to the most basic forms of education. This ‘minimum core’ thus recognizes a universal right to a standard of living suitable for the health and well-being of oneself and one’s family, or, more generally, the right to live above the poverty line of the society concerned. As far as social assistance is concerned, this means that everyone has the right to access the relevant material resources to satisfy their basic needs within dignified conditions.
At European level, the right to social assistance has been explicitly recognized in Article 13 of the European Social Charter and in Article 34 of the Charter of Fundamental Rights of the European Union. The current European Pillar of Social Rights also recognizes a right to social assistance as part of its broader notion of minimum income protection. Under the title ‘minimum income’, Principle 14 states that everyone lacking sufficient resources has the right to adequate minimum income benefits ensuring a life in dignity at all stages of life, and effective access to enabling goods and services.
Against this background, the adjective ‘necessary’ before the term ‘assistance’, as provided for in the TPD, raises new questions. The term ‘necessary’ relates to something that is needed for a purpose or a reason. In this sense, the word ‘necessary’ aims to limit the scope of protection – only the protection necessary to achieve a certain aim is provided for under the TPD. This opens the question what purpose the TPD attempts to ensure through social assistance: The silence of the Directive and the Decision in this matter means that the Directive’s preparatory works must be examined to interpret the terms used. During the debates in the European Parliament, the Rapporteur on the Directive’s proposal, Mr Jan-Kees Wiebenga, stated that the relevant displaced persons ‘deserve a dignified reception’. The Opinion of the Economic and Social Committee on the Proposal also highlights the Directive’s aim, among others, ‘to ensure that such persons are treated humanely and receive assistance and protection allowing them to recover from the traumas they have suffered, and to provisionally enter into social, cultural and human relations in the host country or countries, on the same footing as refugees’.
This Opinion, read together with the Rapporteur’s statement to the Parliament, suggests that the purpose of the Directive is to ensure humane treatment of displaced persons, allowing them to receive the assistance necessary to recover from the displacement they have suffered and to be able to engage, even if only temporarily, in social, cultural and human relations in the host State, as refugees do. The adjective ‘necessary’ must therefore be interpreted in a broad manner, encompassing all the elements of assistance that enable the persons covered by the TPD to live with dignity, including access to at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. This broad interpretation of the concept of necessary assistance is in line with Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, which allows Member States to limit such assistance to ‘core benefits’. The latter are understood as covering ‘at least minimum income support’.
In addition to the right to necessary assistance, the TPD also provides for a right to the ‘means of subsistence’. The concept of subsistence relates to the capacity to support oneself – linked to the idea of survival. For this reason, the means of subsistence could be understood as constituting the core of welfare rights, in the sense that they promote an interest in obtaining what is necessary for humans to survive, including nutrition, shelter and health. Taken as a whole, this definition of means of subsistence encompasses, to a large extent, the definition of social assistance mentioned above. In any case, both certainly point towards a common substantial basis: the material provisions needed for one’s self-preservation.
In most States, access to these elements takes the form of non-contributory schemes, given that it is unlikely that all citizens (including displaced persons) can be adequately covered by an insurance-based system. In this regard, whereas under EU law the host Member State is not obliged to confer on EU nationals entitlement to social assistance during their first three months of residence in the host state, the TDP innovates in that it grants the necessary social assistance from the moment of arrival of migrants covered by the TPD. The latter thus awards a more favourable treatment to non-EU nationals than that offered to EU nationals.
The Directive itself does not, however, guarantee access to these schemes that is equal to the access afforded to EU Member State nationals. The United Nations Committee on Economic, Social and Cultural Rights has stated, in this regard, that migrants should have access to the same social assistance that is given to nationals of the host State, without discrimination, from the moment of their arrival. The Council Directive 2011/95/EU provides in this respect that, as far as social assistance is concerned, ‘especially to avoid social hardship, it is appropriate to provide beneficiaries of international protection with adequate social welfare and means of subsistence, without discrimination in the context of social assistance’, and foresees that ‘beneficiaries of international protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State’. Along the same lines, the European Court of Human Rights (ECtHR) has already ruled that the denial of social security benefits to migrants merely because of their foreign nationality is unlawful, stating that ‘very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention’. The ECtHR thereby established that an objective and reasonable justification of a discriminatory provision requires the pursuit of a legitimate aim or a reasonable relationship of proportionality between the means employed and the aim to be achieved.
Regarding the substance of social assistance, EU Member States should not only extend their domestic schemes to migrants covered by the TPD, but they should give special attention to those individuals and groups who traditionally face difficulties in exercising social rights related to their survival.
2.2 The funding of the extension of social protection
The social protection provided for in the TPD and interpreted in the present paper is broad and therefore costly for the host State. Pursuant to the principle of solidarity among EU Member States, the TPD provides that actions taken under the Directive shall benefit from the European Refugee Fund, which was replaced in 2014 by the Asylum, Migration and Integration Fund. More precisely, the Council Decision on Ukraine provides that ‘[a]ll the efforts of Member States to comply with the obligations deriving from this Decision will be supported financially by the Union Funds’.
The current Asylum, Migration and Integration Fund (AMIF) is set up for the period 2021–2027, with a total of EUR 9.9 billion. The general objective of this fund is to contribute to the ‘efficient management of migration flows and to the implementation, strengthening and development of the common policy on asylum and the common immigration policy (…)’. Notably, as one specific objective, the fund is intended to promote and contribute to ‘the effective integration and social inclusion of third-country nationals’.
The fund thus supports, among other issues, the integration and social inclusion of migrants. It aims to facilitate ‘tailored support in accordance with the needs of third-country nationals, and integration programmes focusing on counselling, education, language and other training, such as civic orientation courses and professional guidance’, as well as ‘actions promoting equality in access to public and private services by third-country nationals and the provision of such services to third-country nationals, including access to education, healthcare and psycho-social support and adapting such services to the needs of the target group’.
Social inclusion, as provided for by the Regulation establishing the fund, relates to the provision of services to migrants – access to health, education and employment. Thus, social assistance as stipulated by the TPD – including material means as interpreted above, such as housing and food– is not included in the fund’s provisions. Although the list of measures covered by the Regulation is not exhaustive, the Commission’s latest report on the fund shows that, in practice, only the services listed in the Regulation are financed by the fund. The report further shows that, to this day, direct social assistance has been funded residually.
The fund’s capacity to provide this direct material support to migrants covered by the TPD could therefore be questioned. Standard Member State programmes, which account for more than two-thirds of the fund’s budget, are unable on their own to bear the costs of the massive flow of migrants resulting from the implementation of the TPD. Emergency financial assistance, as provided for by the fund, thus seems to be the appropriate mechanism to manage ‘an event of a mass influx of displaced persons within the meaning of Council Directive 2001/55/EC’. This emergency assistance, however, consists of less than one-third of the fund’s budget, since it is subsumed within a broader work programme which includes different actions, such as general Union actions, resettlement and humanitarian assistance, transfers of migrants and the European Migration Network. In this regard, it is the Commission that decides to provide this emergency assistance, ‘within the limits of available resources’. The case of Ukraine will thus provide an opportunity in the coming months to test the deployment of the principle of solidarity and burden-sharing within the EU, and more particularly, to assess the fund’s capacity to respond to a migratory emergency.
The recent Council Decision establishing the existence of a ‘mass influx’ of displaced persons, introducing a never-before-used temporary protection mechanism under Council Directive 2001/55/EC, sheds light on a new instrument for the EU to respond to migratory crises. Access to the means of subsistence, as provided for by the TPD, is indisputably necessary to cope with the ‘mass influx’ of people escaping war, who are particularly vulnerable. However, despite its positive impact on migrants’ social protection, the TPD has its shortcomings.
For example, the margin for manoeuvre left to Member States regarding the extension of protection allows them to reduce or increase – according to their individual choices – the categories of people they accept on their territory throughout the ‘mass influx’ period. The lack of transparency and predictability of Member States’ practices reinforces legal uncertainty and consequently limits the protection guaranteed by the TPD.
Furthermore, a pending issue concerns the differences in the social welfare systems among EU Member States that affect the substance of the protection provided. The TPD does not provide for a social floor, and there is no harmonization under EU law on this issue. Thus, the disparities in the social legislation of individual Member States may limit protection. While the fund was designed to reduce the disparities between systems, the question is whether it will be able to respond to the specificities of the TPD and assist Member States in sharing the burden.
The right of each person to live in dignity is universal and is a pillar of the economic, social, and cultural rights in any legal system. Therefore, non-discrimination should be the governing principle on which the application of the TPD is based. The extension of social assistance to all migrants from the region in conflict, on an equal footing with the assistance granted to nationals, seems in this regard intrinsic to the proper enforcement of the TPD’s purposes.
* Associate Professor, Université Paris Cité ↑
** Professor, Universidade Federal do Ceará ↑
*** Universidade Federal do Ceará ↑
The authors would like to thank the reviewers for their valuable comments. This paper was written during Dr Julia Motte-Baumvol’s research stay at the Institute of European and Comparative Law of the Oxford Law Faculty and is a part of the research project ANR JCJC SENIOR. The author would like to express her deepest gratitude to Professor Birke Haecker for her warm welcome and guidance during her stay.
- While the UN General Assembly Resolution of 1 March 2022 (A/RES/ES-11/1) uses the concept of ‘aggression’ to characterize the conflict between Ukraine and Russia, the EU Council Decision of 4 March 2022 uses the concept of ‘invasion’ (Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection  OJ L71/1).The present article will therefore, for the sake of consistency, adopt the concept of invasion for the present case, while being aware of the difficulties in characterizing aggression under international law (see notably Antonio Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’  20(4) Leiden Journal of International Law 841, and Yoram Dinstein, ‘Aggression’, Max Planck Encyclopaedia of Public International Law (2022) <https://opil.ouplaw.com/view/10.093/law:epil/9780199231690/law-9780199231690-e236?rskey=gzKoTj&result=2&prd=OPIL> accessed 30 May 2022. ↑
- United Nations High Commissioner for Refugees (UNHCR), ‘Ukrainian family confronts new reality of life as refugees’ (UNHCR, 10 March 2022) <https://www.unhcr.org/news/stories/2022/3/6229dc0f4/ukrainian-family-confronts-new-reality-life-refugees.html> accessed 30 May 2022. ↑
- International Organization for Migration, ‘Situation Report #9 Ukraine Response’ (International Organization for Migration, 21 March 2022) <https://www.iom.int/sitreps/iom-regional-ukraine-response-situation-report-9-21-march-2022> accessed 30 May 2022. ↑
- European Council, ‘Remarks by President Charles Michel at the extraordinary debate at the European Parliament on Russian aggression against Ukraine’ (Consilium Europa, 1 March 2022) <https://www.consilium.europa.eu/de/press/press-releases/2022/03/01/remarks-by-president-charles-michel-at-the-extraordinary-debate-at-the-european-parliament-on-russian-aggression-against-ukraine/> accessed 30 May 2022. ↑
- European Council, ‘European Council Conclusions on Russia’s unprovoked and unjustified military aggression against Ukraine’ (European Council, 24 February 2022) EUCO 18/22, §1, <https://www.consilium.europa.eu/en/press/press-releases/2022/02/24/european-council-conclusions-24-february-2022/> accessed 30 May 2022. ↑
- Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection  OJ L71/1. ↑
- On this matter, see European Commission, Directorate-General for Migration and Home Affairs, ‘Study on the Temporary Protection Directive – Final Report’ (European Commission, January 2016) <https://ec.europa.eu/home-affairs/system/files/2020-09/final_report_evaluation_tpd_en.pdf> accessed 30 May 2022, and Danielle Gluns and Janna Wessels, ‘Waste of Paper or Useful Tool? The Potential of the Temporary Protection Directive in the Current ‘Refugee Crisis’’ (2017) 36(2) Refugee Survey Quarterly 57, 61. ↑
- Council Directive 2001/55/EC of 20 July 2001 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  OJ L212/12 (Temporary Protection Directive), Preamble §8, Art 1. ↑
- ibid. ↑
- See International Organisation for Migration (IOM), ‘IOM Handbook on Protection and Assistance for Migrants Vulnerable to Violence, Exploitation and Abuse’ (International Organisation for Migration, 5 May 2019) <https://publications.iom.int/books/iom-handbook-migrants-vulnerable-violence-exploitation-and-abuse> accessed 30 May 2022. International migration is, according to the IOM, an umbrella term, not defined under international law, reflecting the common law understanding of ‘a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons’. Displaced persons, such as the ones in the war in Ukraine, covered by the TPD, are thus included in this definition. See in this regard <https://www.iom.int/who-migrant-0> accessed 30 May 2022. ↑
- United Nations Human Rights Office of the High Commissioner, ‘Principles and Guidelines supported by practical guidance on the human rights protection of migrants in vulnerable situations’ (UN Human Rights Office, 2019) <https://environmentalmigration.iom.int/sites/g/files/tmzbdl1411/files/Principles_and_Guidelines_WEB.pdf> accessed 30 May 2022. ↑
- United Nations Human Rights Council, ‘Situation of migrants in transit’ (27 January 2016, A/HRC/31/35). These vulnerabilities may include “poverty, discrimination, lack of access to fundamental human rights, including education, health, food and water, and decent work, as well as xenophobia, violence, gender inequality, the wide-ranging consequences of natural disaster, climate change and environmental degradation, and separation from family”. United Nations Human Rights Council, ‘Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of the existing legal norms”’ (23 February 2017, A/HRC/34/CRP.1), Principle 13, §88. ↑
- IOM Handbook, 4. ↑
- See, in this regard, the EU Humanitarian Aid Policy website: <https://ec.europa.eu/echo/what/humanitarian-aid_en> accessed 30 May 2022. ↑
- Monique Pariat, ‘Guest Editorial: The EU Humanitarian Aid Policy: Progress and Challenges’ (2010) 24 European Foreign Affairs Review 1, 5. ↑
- Temporary Protection Directive, Art 5.1. ↑
- ibid. ↑
- Gluns Wessels (n 7) 62-63. ↑
- The concepts of ‘mass influx’ and ‘displaced persons’ used in this article are in line with the provisions of Council Directive 2001/55/EC. The term ‘displaced persons’ is not ideal since it could be understood to mean that such persons are not refugees. For the UN High Commissioner for Refugees (UNHCR), beneficiaries of temporary protection are refugees of concern to the Office. UN High Commissioner for Refugees (UNHCR), ‘UNHCR Annotated Comments on COUNCIL DIRECTIVE 2001/55/EC of 20 July 2001 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’ (UNHCR, 20 July 2001) 5. See also, in this regard, Nuria Arenas, ‘The Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’ (2005) 7 European Journal of Migration and Law 435. ↑
- Temporary Protection Directive, Preamble §23. ↑
- Temporary Protection Directive, Preamble, §§10 and 16. ↑
- ibid Article 2.c. ↑
- ibid Article 5. ↑
- Council Implementing Decision (EU) 2022/382, Art 2 §1(b). ↑
- United Nations Population Division, International Migrant Stock (UN Population Division, 2020) <https://www.un.org/development/desa/pd/content/international-migrant-stock> accessed 30 May 2022. ↑
- Convention Relating to the Status of Refugees (22 April 1954) 189 UNTS 137 (Refugee Convention) Art 3. ↑
- UNHCR, UNHCR Note on the Principle of Non-Refoulement (UNHCR, November 1997) <https://www.refworld.org/docid/438c6d972.html> accessed 30 May 2022. ↑
- Article 33(1) of the Refugee Convention. Furthermore, at the international level, Art 3(1) of the UN Declaration on Territorial Asylum (14 December 1967, Res. 2312 (XXII) states that no one should be subjected to measures such as rejection at the frontier or, when seeking asylum, to expulsion or compulsory return to any State where he may be subjected to persecution. The UN Convention against Torture (10 December 1984) provides that no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Article 3). Similarly, the International Covenant on Civil and Political Rights (16 December 1966, Article 7) has been interpreted as prohibiting the return of persons to places where torture or persecution is feared. For more details, see R. Lillich, ‘Article 7’ in Manfred Novak, U.N. Covenant on Civil and Political Rights. CCPR Commentary (N. P. Engel, 2005). ↑
- The European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)) does not foresee a right of entry or asylum (3 September 1953, Council of Europe Treaty Office ETS No. 005). The interpretation of Article 3 ECHR can, however, be seen as a limit to the power of States to expel aliens. See UNHCR, ‘European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons’ (1996) 2(3) European Series. ↑
- Temporary Protection Directive, Preamble §1. ↑
- ibid Art 7. ↑
- Council Implementing Decision (EU) 2022/382, Art 2 §2. ↑
- International Organization for Migration, ‘Irregular Migrants in Ukraine – Analytical Summary’ (IOM, 13 April 2021) <https://ukraine.iom.int/resources/irregular-migrants-ukraine> accessed 30 May 2022, 6. ↑
- ibid 8. ↑
- European Commission, ‘Information for people fleeing the war in Ukraine’ (European Commission, 2022) <https://ec.europa.eu/info/strategy/priorities-2019-2024/stronger-europe-world/eu-solidarity-ukraine/eu-assistance-ukraine/information-people-fleeing-war-ukraine_en> accessed 30 May 2022. ↑
- ibid. ↑
- ibid. ↑
- Ministry of Interior of the Slovak Republic, ‘Situation in Ukraine: information and assistance’ (Ministry of Interior of the Slovak Republic, 2022) <https://www.minv.sk/?ukraine-information-assistance>. ↑
- International Organization for Migration, ‘Useful information for people entering Romania from Ukraine’ (IOM UN Migration Romania, Bucharest, 26 February 2022) <https://romania.iom.int/news/useful-information-people-entering-romania-ukraine> accessed 30 May 2022. ↑
- Jacobo Barigazzi, ‘EU hails ‘historic’ deal to protect Ukrainian refugees’ Politico (Brussels, 3 March 2022) <https://www.politico.eu/article/eu-ministers-historical-deal-protect-ukraine-refugees> accessed 30 May 2022. ↑
- See the Polish Government website, 2022: <https://www.gov.pl/web/ua/Lehalne-perebuvannya-v-Polshchi> accessed 30 May 2022. ↑
- For France : Ministère de l’Intérieur, Direction Générale des étrangers en France, ‘Information Ukraine’ (Ministère de l’Intérieur Immigration, 15 March 2022) <https://www.immigration.interieur.gouv.fr/Info-ressources/Actualites/L-actu-immigration/Information-a-destination-des-ressortissants-ukrainiens> accessed 30 May 2022; for Italy: Ministero del Lavoro e delle Politiche Sociali,‘Useful information for Ukranians – Health obligations, accommodation and how to regularize your position, Health obligations in compliance with anti Covid-19 legislation for Ukrainian citizens arriving from Ukraine and third country nationals arriving from Ukraine’ (Ministero del Lavoro Integrazione Migranti, 10 March 2022) <https://www.integrazionemigranti.gov.it/AnteprimaPDF.aspx?id=3367> accessed 30 May 2022. ↑
- The principle of solidarity is embedded in the foundations of the European Union legal system (see notably Articles 2 and 3 TEU). The legal literature is extensive in this matter, either examining the principle itself (see, for instance, Chahira Boutayeb, La solidarité dans l’Union européenne (Dalloz, Coll. Thèmes & commentaires 2011); Veronica Federico and Christian Lahusen, Solidarity as a Public Virtue? Law and public policies in the European Union (Nomos 2018)) or applied to the migrant situation (Francesca Pusterla and Elia Pusterla, ‘The 2015 migrant crisis and EU Member States: the relations between state fragility and solidarity’ (2017) 17 European Political Science 535, and Sonia Morano-Foadi, ‘Solidarity and Responsibility: Advancing Humanitarian Responses to EU Migratory Pressures’ (2017) 19 European Journal of Migration and Law 223). ↑
- At the international level, Article 2 of the Universal Declaration of Human Rights (Universal Declaration of Human Rights (10 December 1948, UNGA Res 217 A(III) (UDHR)) and Article 2 of the International Covenant on Economic, Social, and Cultural Rights prohibit discrimination regarding national origin (International Covenant on Civil and Political Rights (23 March 1976, 999 UNTS 171 (ICCPR)). At the European level, Article 14 of the European Convention on Human Rights prohibits discrimination based on nationality or other grounds. ↑
- Temporary Protection Directive, Art 13 §2. ↑
- OECD, An explanation of social assistance, pension schemes, insurance schemes and similar concepts OECD (OECD Publishing, 2013) 225-232. ↑
- See on the matter, Gijsbert Vonk and Marius Olivier, ‘The fundamental right of social assistance: A global, a regional (Europe and Africa) and a national perspective (Germany, the Netherlands and South Africa)’ (2019) 21 European Journal of Social Security 219. ↑
- International Covenant on Economic, Social and Cultural Rights (3 January 1976) 993 United Nations 3 (ICESCR), Art 9. The United Nations Sustainable Development Goal No. 1.3 calls on States to implement universal social protection systems for all. See also Article 22 of the Universal Declaration of Human Rights. and Recommendation 202 of the International Labour Organization (International Labour Organization Recommendation R202: Social Protection Floors Recommendation (Recommendation concerning National Floors of Social Protection) (14 June 2012) 101st Conference Session Geneva). This right was also recognized for specific groups of persons, like children (Convention on the Rights of the Child (2 September 1990) 1577 UNTS 3, Art 26) and persons with disabilities (Convention on the Rights of Persons with Disabilities (CRPD) (3 May 2008) 2515 UNTS 3, Art 28). ↑
- See United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights, 39th Session, ‘General Comment No. 19: The Right to Social Security (art. 9)’ (4 February 2008, E/C.12/GC/19) §50. ↑
- In Article 11.1, the International Covenant on Economic, Social and Cultural Rights requires that States recognize the right to an adequate standard of living for everyone, including adequate food, clothing and housing, and to the continuous improvement of living conditions. ↑
- Asbjorn Eide, ‘Adequate standard of living’ in Daniel Moeckli, Sangeeta Shah, David John Harris, Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press 2018). ↑
- Maria Dalli, ‘The content and potential of the right to social assistance in light of Article 13 of the European Social Charter’ (2020) 22 European Journal of Social Security 3, 5. ↑
- European Social Charter (26 February 1965, ETS No. 035) and Charter of Fundamental Rights of the European Union (01 December 2009) OJ C 202/390. ↑
- The 20 Principles are available on the European Pillar of Social Rights webpage: <www.epr.eu> accessed 30 May 2022. ↑
- Dalli (n 52) 7. ↑
- Oxford English Dictionary, ‘necessary, adj. and n.’ (OED Online, March 2022) <https://www.oed.com/view/Entry/125629?redirectedFrom=NECESSARYOxford Dictionary> accessed 1 April 2022. ↑
- European Parliament, Plenary Sitting, ‘Point 6 – Temporary protection for displaced persons’ (European Parliament, 13 March 2001) <https://www.europarl.europa.eu/doceo/document/CRE-5-2001-03-13_EN.html?redirect> accessed 30 May 2022. ↑
- European Union, Economic and Social Committee, ‘Opinion on the Proposal for a 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’ (28 March 2001) 2001/C 155/06. ↑
- United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights (n 49) §59(a). ↑
- Council Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted  OJ L337/9, Preamble §45. ↑
- Charles Jones, ‘The Human Right to Subsistence’ (2013) 30 Journal of Applied Philosophy 57, 61. ↑
- Alejandra Mancilla, ‘The human right to subsistence’ (2019) 14 Philosophy Compass 1. ↑
- Henry Shue, Basic rights: Subsistence, Affluence and American Foreign Policy (Princeton University Press 1996) 23; Charles Jones, ‘The Human Right to Subsistence’ (2013) 30 Journal of Applied Philosophy 57, 61. ↑
- See, in the same line, Council Directive 2011/95/EU, Preamble §45. ↑
- United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights (n 49) §4. ↑
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC  OJ L 158/77. ↑
- See also Meltem Ineli-Ciger, ‘Time to Activate the Temporary Protection Directive’ (2016) European Journal of Migration and Law 1, 25. ↑
- United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights (n 49) §31. ↑
- Council Directive 2011/95/EU, Preamble §45 and Art 29. ↑
- Gaygusuz v. Austria App no 17371/90 (ECtHR, 31 August 1996) 12. ↑
- ibid. ↑
- United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights (n 49) §31. ↑
- Temporary Protection Directive, Art 24. ↑
- Regulation (EU) 2021/1147 of the European Parliament and of the Council of 7 July 2021 establishing the Asylum, Migration and Integration Fund  OJ L 251/1 (Asylum, Migration and Integration Fund Directive). ↑
- Council Implementing Decision (EU) 2022/382, Preamble §22. ↑
- Asylum, Migration and Integration Fund Directive, Art 3 §1. ↑
- ibid Art 3 §2(b). ↑
- ibid Annex III, Art 3(h) and (i). ↑
- European Commission, Directorate-General for Migration and Home Affairs, ‘More Snapshots from the EU Asylum, Migration and Integration Fund’ (European Commission, 5 November 2020) <https://ec.europa.eu/home-affairs/pages/publication/amif-more-snapshot-e-book_en> accessed 30 May 2022. ↑
- Asylum, Migration and Integration Fund Directive, Art 10 §2. ↑
- ibid Art 31 §1(b). ↑
- ibid Art 11 §1. ↑
- ibid Art 31 §1. ↑