Dr Meltem Ineli
Ciger, Associate
Professor, Suleyman Demirel University
Photo credit: Francisco Anzola, via Wikimedia
Commons
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On 19 December
2024, the Court of Justice of the European Union gave its judgment in Joined
cases C-244/24 and C-290/24 Kaduna. This is the first judgment
delivered by the Court on the Council Directive
2001/55/EC of 20 July 2001 (Temporary Protection Directive- TPD) and its
application by the Member States towards persons forcibly displaced from
Ukraine. The judgment clarifies important issues concerning the application of
Article 7(1) of the Temporary Protection Directive which enables Member States
to extend temporary protection to additional groups besides those covered by
the Council decision triggering temporary protection, provided that those additional
groups are displaced for the same reasons and from the same country or region
of origin as those covered by the Council decision. It further answers crucial
questions on the termination of the temporary protection granted to persons
benefitting from temporary protection who does not fall within the scope of
Article 2(1) and 2(2) of the Implementing
Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a
mass influx of displaced persons from Ukraine i.e. persons who were holding
temporary residence permits in Ukraine and the lawfulness of the return
decisions adopted in their regard.
Who is eligible
for temporary protection status in the EU?
First, let me remind
you of the eligibility criteria for temporary protection in the EU. When the Temporary
Protection Directive is activated, the Council decides which groups of
displaced persons qualify for the temporary protection status in the EU, as per
Article 5 of the Directive. The Council did this by adopting the Implementing
Decision (EU) 2022/382 on 4 March 2022. According to Article 2(1) of
the Implementing Decision, the following categories of persons displaced from
Ukraine on or after 24 February 2022, as a result of the military invasion by
Russian armed forces that began on that date, are eligible for temporary
protection:
–
Ukrainian nationals residing in
Ukraine before 24 February 2022 and their family members; and
–
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.
Besides the
outlined groups, according to Article 2(2) of the Implementing Decision, Member
States should grant either temporary protection or a national protection status
to 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.
There are also
persons fleeing Ukraine who can be granted temporary protection at the discretion
of the Member States. As per Article 2(3), Member States can grant temporary
protection status to “other persons who were residing legally in Ukraine and
who are unable to return in safe and durable conditions to their country or
region of origin.” This is in line with Article 7 of the TPD which allows
Member States to extend temporary protection to additional displaced persons
from the same region, provided they promptly notify the Council and Commission.
In the judgment (para 94, 100), Article 2(1) and Article (2) of the
Implementing Decision are defined as mandatory temporary protection clauses
whereas, temporary protection granted on the basis of Article 2(3) of the
Implementing Decision or Article 7 of the TPD is referred to as optional
temporary protection. Member States such as Finland,
Portugal and Spain not just the Netherlands made use of Article 2(3) of the
Implementing Decision and some others such as Germany
and the Czech Republic followed Article 7 of the Temporary Protection
Directive and granted optional temporary protection to various groups fleeing
Ukraine in the beginning of the mass influx situation.
Cases C-244/24
and C-290/24
Both cases referred
to the CJEU concern third-country nationals holding temporary resident permits
in Ukraine who have been granted temporary protection in the Netherlands
despite not falling within Articles 2(1) and (2) of the Council Implementing
Decision. In Case C-244/24, the CJEU examined the legal implications of
temporary protection for a Nigerian national (P) who fled Ukraine to the
Netherlands following the Russian invasion. P held a temporary residence permit
in Ukraine until January 2023 and was granted temporary protection by the Dutch
authorities without assessing his ability to return to his country of origin. P
applied for asylum in August 2022, but the Dutch authorities did not decide on
the application in August 2023. Simultaneously, his temporary protection was
terminated with effect from 4 September 2023 and he was issued a return
decision on 7 February 2024. P challenged this decision, arguing it was
premature and violated his rights under EU law, specifically since the Implementing
Decision (EU) 2023/2409 extended temporary protection until 4 March 2025.
One should also note that, as of December 2024, the temporary protection regime
is extended until 4 March 2026 with the Council Implementing
Decision (EU) 2024/1836 of 25 June 2024.
In Case C-244/24,
the Court was asked whether Article 6 of the Return
Directive prohibits a Member State from adopting a return decision against
a person who still has lawful residence under temporary protection. It further
inquired whether it makes a difference if the return decision specifies that it
will only take effect after the legal stay ends. Secondly, the Court was asked
to clarify whether Article 1 of Council Implementing Decision 2023/2409, which
extended EU-wide temporary protection until 4 March 2025, also applies to optional
temporary protection status holders even if the Member State later decided to
revoke their temporary protection before this extension (para 85).
In Case C-290/24,
the CJEU also has been asked about the scope of optional temporary protection
beneficiary categories and the implications of its cessation by Member States.
The case concerned three third-country nationals (AI, ZY, and BG) who held
temporary residence permits in Ukraine on 24 February 2022. They fled to the
Netherlands after the Russian invasion, where they were granted temporary
protection under Dutch legislation without assessing their ability to return
safely to their countries of origin. However, on 7 February 2024, the Dutch
State Secretary issued return decisions for all three individuals, requiring
them to leave the EU within four weeks of 4 March 2024. The case reached the
Dutch Council of State after conflicting lower court rulings. The Council of
State referred the matter to the CJEU, raising questions about the duration and
termination of temporary protection for those who fall within the optional
temporary protection categories. The referred question was whether the
Temporary Protection Directive requires optional temporary protection to
continue during EU-wide extensions, or can a Member State terminate such
optional protection early (para 93). The President of the Court decided to join
these cases on 7 May 2024.
Questions
addressed by the CJEU and the overview of the judgment
1.
Can temporary residence permit
holders who fled Ukraine shortly before 24 February 2022 be granted temporary
protection on the basis of Article 7 of the Temporary Protection Directive
regardless of whether they could return to their country or region of origin in
safe and sustainable conditions? (para 93-101)
The Court answered
this question positively. It noted that Article 7(1) of the Temporary
Protection Directive allows Member States to extend temporary protection to
categories of persons not designated by the Council, provided they fled for the
same reasons and from the same region or country. The Netherlands granted
temporary protection to all holders of a Ukrainian residence permit, including
temporary ones that were valid on 23 February 2022 and likely to have left
Ukraine after 26 November 2021 (90 days before the invasion). The Court confirms this is in line with the Council
Implementing Decision 2022/382 recital 14, which encourages extending
protection to those who fled shortly before 24 February 2022 (para 99) and
partially also corresponds to Article 2(3) of the Council Implementing
Decision.
2.
When can the Member States
terminate optional temporary protection granted on the basis of Article 7 of the
Temporary Protection Directive? (para 102-135)
To address this
question, the Court first clarified that the temporary protection granted under
Article 7(1) of the TPD does not result from an obligation laid down by EU law
but from the autonomous decision of a Member State (para 111). According to the
Court, Article 7 of the Directive gives Member States considerable discretion
in determining who qualifies for temporary protection and for how long. Moreover,
Article 7 aims to encourage Member States to broaden the categories of
displaced persons eligible for temporary protection, thereby lightening the
pressure on national asylum systems and preventing their collapse. The Court
considered the Netherlands making use of Article 7 promoted these objectives
despite limiting the protection period shorter than that of mandatory temporary
protection. Based on this reasoning, the Court clarified that Member States are
not required to terminate temporary protection for individuals granted
protection under Article 7 at the same time as those covered by the mandatory
clauses set out in Articles 2(1) and 2(2) of the Implementing Decision. This is
also in line with the AG
opinion (para 121, 122).
The Court noted
Article 7(1) grants Member States the discretion to establish and withdraw temporary
protection status for optional groups, as long as these actions occur within
the timeframe during which temporary protection regime is in force as per the
Council decisions. Moreover, the Court emphasised that a Member State may
terminate temporary protection status for optional groups prior to the date on
which the temporary protection regime is terminated by the Council, provided
such action does not undermine the objectives or effectiveness of the Temporary
Protection Directive and complies with the general principles of EU law
including the principles of the protection of legitimate expectations and legal
certainty. It is also noteworthy that, in interpreting a key criterion for
applying and terminating temporary protection for optional categories, the
objectives of the Temporary Protection Directive were identified similarly by
the AG and the Court. Whilst, AG noted safeguarding of the proper functioning
of the asylum systems of the Member States as the objective of the TPD, the
Court identified it as “to preserve the proper functioning of the system of
international protection within the Member States” (para 125).
The Court
emphasised that persons enjoying optional temporary protection should be given
a right to apply for international protection during or after the termination
of the temporary protection regime and their applications must be decided.
3.
Can a Member State issue a return
decision for a temporary protection beneficiary even if the return decision
specifies that it will only take effect after the temporary protection regime
ends? (para 136-158)
The Court noted
that Article 6 of the Return Directive only applies to individuals who are
staying illegally in a Member State thus, as long as an individual is legally
residing under optional temporary protection, a return decision cannot be
issued. This restriction applies even if the return decision specifies that it
will only take effect after the individual’s legal residence ends. The Court
stressed that issuing a return decision prematurely undermines procedural
safeguards and fails to respect the legal rights of individuals while their
residence is still lawful. Moreover, the Court also noted that beneficiaries of
optional temporary protection must enjoy the same rights as those covered under
mandatory temporary protection, including a residence permit ensuring their
legal stay until protection is formally withdrawn. Until their protection
status ends, they remain lawful residents, and return decisions are therefore inadmissible.
Finally, the Court concluded that even if a Member State seeks to prepare for
the end of optional temporary protection by issuing a return decision in
advance, such action violates EU law.
Analysis
As the title of
this post suggests, the judgment and the way the Court addressed the outlined questions
are not surprising. The decision also mostly aligns with the opinion of the AG.
Temporary
protection, unlike international protection, is a time-limited, exceptional and
discretionary protection
framework only to be applied in mass influx situations. While the Council
determines the categories of beneficiaries and the duration of the temporary
protection regime within the EU, the Court confirmed that Member States retain
discretion to decide which additional groups, beyond those identified by the
Council as ‘mandatory categories’, may benefit from temporary protection on the
basis of Article 7 and for how long they may enjoy it. However, as the Court
underlined, this discretion is not without limits. The following principles
must be observed when determining the termination of temporary protection for
optional groups:
–
Member States may independently
terminate temporary protection for optional groups before the official end date
of the EU-wide temporary protection regime established by the Council. However,
such actions must comply with EU principles, including legal certainty, and
must not undermine the objectives or effectiveness of the Temporary Protection
Directive.
–
Temporary protection beneficiaries
should be able to apply for international protection during or after the end of
the temporary protection and asylum applications must be processed.
–
All temporary protection
beneficiaries irrespective of falling into the mandatory or optional category
must enjoy the same rights and this includes access to a residence permit
allowing legal stay until their temporary protection is formally withdrawn.
–
Return decisions can only be
issued to individuals who are staying illegally in a Member State. While
beneficiaries of optional temporary protection remain lawful residents, issuing
return decisions, even those with a delayed effect, may violate EU law.
According to the Commission,
as of the end of October 2024, 4.2 million people fleeing Ukraine due to the
Russian war of aggression were under temporary protection in EU countries. Of
these, 98.3% were Ukrainian nationals. This indicates that the judgment
concerns a very small percentage of individuals granted temporary protection in
the EU and only a handful of Member States which broadened the scope of the
temporary protection regime. Nevertheless, the Court’s interpretation of
Article 6 of the Return Directive raises important points that may become
increasingly relevant in the future, particularly when the Council decides to terminate
temporary protection for Ukrainians. The Court clearly established that no
return decisions are to be adopted before the termination of the temporary
protection regime. It is important for
all temporary protection status holders to be given an opportunity to claim
asylum and their applications are examined and decided before their removal.
Although the legal
reasoning of the Court in this judgment, at least in my opinion, is justified, there is an interesting point: both AG
opinion (para 27-34, 112) and the judgment
(para 65-66) mention Article 4 and the extension of the temporary protection
until 2026 as a matter of fact, but none of these texts questions or engages with
the question whether the extension of temporary protection is in line with
Article 4 of the TPD and EU law. As an author who argued
that the extension of the temporary protection until 2026, ie beyond three
years, contravenes Article 4 of the Temporary Protection Directive, it is
indeed interesting that both the Court and the Advocate-General did not discuss
the legality of such an extension but merely acknowledged the existence of it.
Perhaps this is a question which should be referred to the CJEU in the future.