Towards Temporary Prolonged Protection?
Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University
The EU’s activation of the Temporary Protection Directive (TPD) in March 2022 marked a historic response to the mass displacement caused by Russia’s invasion of Ukraine. The TPD was formally activated by Council Implementing Decision (EU) 2022/382 on 4 March 2022. It first applied for an initial period of one year, until 4 March 2023, and was then automatically extended for one additional year until 4 March 2024. Council Implementing Decision (EU) 2023/2409 extended temporary protection until 4 March 2025. Finally, Council Implementing Decision (EU) 2024/1836 extended temporary protection for a further period of 1 year, until 4 March 2026. As of March 2025, around 4.2 million people fleeing Ukraine continue to benefit from temporary protection across the EU (Eurostat 2025). Although the Directive was conceived as a short- to medium-term emergency mechanism, the temporary protection status is currently set to expire in March 2026.
In anticipation of this deadline, the European Commission adopted a package of three interlinked documents to shape the EU’s future approach on 4 June 2025. First, it proposed a Council Implementing Decision to extend temporary protection for one additional year, until 4 March 2027. Second, it issued a Proposal for a Council Recommendation outlining a coordinated strategy to phase out temporary protection, with a focus on long-term solutions such as transitions to residence status and voluntary returns. Third, a Communication titled “A Predictable and Common European Way Forward for Ukrainians in the EU” set out the strategic framework underpinning the two proposals. On 13 June 2025, Member States unanimously endorsed the Commission’s proposal to extend temporary protection until 4 March 2027.
This post analyses the European Commission’s June 2025 proposals on the future of the Temporary Protection Directive, focusing on their legal basis, policy rationale, and transition strategy. It questions the compatibility of the proposed extension with the Directive’s time limits, critiques the Commission’s reading of recent CJEU case law, and highlights the lack of a harmonised and inclusive pathway beyond temporary protection.
Is 5 years still temporary?
The application of the TPD has been effective in delivering swift protection and alleviating pressure on national asylum systems. It also affirmed displaced persons’ agency by exempting them from the Dublin rules and allowing freedom of choice regarding the host Member State. However, as its name suggests, temporary protection must remain temporary.
Article 4 of the Directive sets an apparently clear temporal limit: temporary protection must not exceed three years. The Commission’s proposal to extend the regime to March 2027 would exceed this maximum, raising serious concerns about the legal soundness and credibility of the Temporary Protection Directive as an emergency instrument.
According to the Commission, the proposal to extend the protection until March 2027 “is fully consistent with the EU asylum acquis, as the Temporary Protection Directive forms an integral part of the Common European Asylum System.” The Commission justifies the extension on four grounds: ongoing volatility in Ukraine; the need to safeguard those still requiring protection; the risk of overwhelming asylum systems if temporary protection ends abruptly; and the persistence of the original conditions that triggered the Directive’s activation in 2022. While these reasons are compelling from a policy perspective, they do not resolve the legal inconsistency with Article 4.
As I previously argued, the Temporary Protection Directive including Article 4 and, in particular, Article 4(2), which the Commission continues to invoke as the basis for extending temporary protection to five years, does not provide a legal basis for prolonging protection beyond the three-year limit without a formal amendment to the Directive. A further concern is the absence of clarity on whether March 2027 will represent the final expiration of the regime. The Proposal for a Council Recommendation relies on vague and open-ended language, noting that “at some future point in time,” when conditions permit, temporary protection “will need to come to an end.” This formulation provides no certainty or concrete benchmarks and leaves the door open to indefinite extensions, contrary to both the spirit and letter of the Directive.
While Steve Peers wryly observes that “with a bit of legal alchemy, the EU has cruised past” the generally accepted three-year time limit of the Temporary Protection Directive, I take issue with the EU’s legal alchemy. In my view, permitting the continuation of temporary protection without amending the Directive risks setting a dangerous precedent. Repeatedly extending the Directive on an annual basis, in the absence of clear legal or temporal constraints, opens the door to its indefinite application. This not only stretches the original intent of the Temporary Protection Directive but also undermines the fundamental principles of proportionality and necessity enshrined in both EU and international law. A protection regime initially designed as an exceptional, time-bound response must not become a de facto permanent fixture without any appropriate legislative reform and legal justification. Moreover, when five years marks the point at which third-country nationals can obtain long-term residence in the EU, how can a regime lasting just as long or longer still be credibly labelled ‘temporary’?
A restrictive interpretation of Krasiliva judgment (C-753/23)
The Commission also appears to adopt a narrow and arguably restrictive interpretation of the Court of Justice’s recent Krasiliva judgment (C-753/23). In both the explanatory memorandum and paragraph 6 of the Recommendation, the Commission advises that Member States should refrain from granting residence permits or social assistance to individuals already enjoying temporary protection in another EU country to avoid overlapping entitlements.
While this recommendation is framed as a safeguard for the system’s integrity, it arguably overstates the scope of this ruling. The Court did not prohibit a second Member State from issuing a residence permit to an individual who was holding temporary protection status in a first Member State. Instead, it addressed a narrow factual scenario in which an applicant had applied but not yet been granted protection in the first Member State. The CJEU ruled that Article 8(1) of the TPD does not allow national legislation to deny a permit solely because an application was made in another Member State (para 33). The Court also ruled that a Member State must allow appeals against such rejection decisions. However, the judgment does not clarify whether a person already granted temporary protection in one Member State can obtain the same status in another. Thus, the judgment does not mandate uniform refusal. The Commission’s reading fills a legal lacuna left by the Court but does so by advancing a restrictive approach that may limit Member State discretion more than the ruling itself requires.
Ambiguous path beyond temporary protection
The Commission’s Proposal for a Council Recommendation sets out a coordinated transition strategy that encourages early movement towards national residence statuses. These include permits for employment, education, research, and family reasons, as well as statuses available under EU legal migration instruments such as the Blue Card, Single Permit, and Students and Researchers Directives. Member States are expected to inform displaced persons of the legal implications of such transitions and clarify that these statuses cannot be held concurrently with temporary protection.
Simultaneously, the Recommendation envisions a pathway for return built around voluntary return programmes once temporary protection ends, exploratory visits to Ukraine, and reintegration assistance coordinated with Ukrainian authorities. Specific provisions are foreseen for vulnerable individuals and families with school-aged children, ensuring continued residence under Article 23 of the TPD where needed. The proposed Unity Hubs, multi-purpose information centres supported by the Asylum, Migration and Integration Fund (AMIF), are tasked with providing displaced persons with guidance on legal options and return possibilities.
A notable element of the Recommendation, in my view, is its implicit discouragement of asylum applications by persons currently benefiting from temporary protection. The Commission recommends that Member States emphasise the advantages of transitioning to national residence statuses “in comparison to temporary protection and international protection” (para 4). While this may serve to prevent asylum systems from being overwhelmed, it raises questions about access to international protection for individuals beyond a temporary period.
What should be the right exit strategy? Some reflections on the Commission Proposals
First, given the EU institutions’ prolonged silence on post-temporary protection planning, the Commission’s initiative is a welcome step toward providing some direction on what should follow the eventual termination of the regime. Having said that, none of the reviewed proposals set out a unified way for the future of temporary protection beneficiaries. As Peers rightly notes, “the most obvious route to a common policy would have been to propose some form of harmonised EU-wide post-temporary protection status.” Instead, the Commission outlines two main trajectories: (1) integration via national pathways, including residence permits available under domestic law or through existing EU legal migration instruments, and (2) assisted voluntary return for those wishing to go back to Ukraine.
Second, from the outset, I have argued that the Long-Term Residents (LTR) Directive could serve as a structured and rights-based pathway to permanent residence for those granted temporary protection. The LTR Directive allows third-country nationals to apply for long-term resident status after five years of legal residence. However, it remains unclear whether time spent under temporary protection counts towards this threshold. Moreover, temporary protection beneficiaries are currently excluded from applying. This exclusion constitutes a significant legal and policy gap.
Unless the LTR Directive is amended, many individuals who may have satisfied core integration criteria may be left with fewer durable residence options after 2027. Amending the LTR Directive should include: (a) counting time under temporary protection toward the five-year threshold; (b) extending eligibility to temporary protection beneficiaries; (c) adjusting income and insurance requirements to acquire the long-term residence status to reflect socio-economic realities; and (d) incorporating gender-sensitive indicators such as caregiving roles and community participation. It is also important to recognise that while transitioning to LTR status may offer a durable solution for some, it will not be accessible to all. Women with caregiving responsibilities, individuals engaged in informal or precarious employment, older persons, and survivors of trauma often struggle to meet the standard eligibility criteria, such as stable income, health insurance, and continuous legal residence, thus risking exclusion from this pathway. Though it is possible to amend the Directive, to incorporate inclusive and gender-sensitive criteria, recognising informal care work, community participation, and non-standard employment as valid indicators of integration. Notably, the Commission’s proposals remain silent on the Long-Term Residents Directive. This omission may reflect the stalled status of its recast proposal, which would have allowed time spent under temporary protection to count towards the five-year threshold for long-term residence. (cf. LTR Recast Proposal)
Third, while the Commission encourages Member States to transition temporary protection beneficiaries to national migration statuses, this approach risks deepening legal fragmentation across the Union. In the absence of a harmonised exit strategy, Member States have been adopting divergent pathways (cf. ICMPD Paper). As Wagner and Grama observe, several states have introduced regularisation mechanisms: for example, Poland’s 2025 legislation allows those with one uninterrupted year of temporary protection to apply for a three-year residence permit. Italy permits transitions to standard work-related permits, while Estonia and Latvia allow in-country applications for alternative statuses without requiring exit and re-entry. While these national initiatives may appear pragmatic, they undermine the original purpose of harmonised protection standards, increase the likelihood of unequal treatment, and heighten the risk of secondary movements and protection gaps. Without stronger coordination or guidance from EU institutions, this may lead to “transition shopping,” (as one of the speakers in a recent webinar aptly framed it), where temporary protection beneficiaries seek out Member States offering the most favourable legal frameworks, potentially undermining the principles of solidarity and leading to secondary movements.
Fourth, the Commission’s focus on the transition to residence permits under national law or the EU acquis overlooks the situation of vulnerable individuals who may be unable to meet the required eligibility criteria, such as stable employment or self-sufficiency. The proposal offers no substantive guidance on how these individuals will continue to receive protection and assistance within the Union, risking their exclusion from future residence frameworks.
Fifth, for individuals who do not meet the eligibility criteria for residence permits under national laws or EU instruments, including those in particularly vulnerable situations, international protection remains one of the few viable and rights-based avenues for continued protection within the Union. However, when read in their entirety, the Commission’s proposals appear to encourage Member States to dissuade temporary protection beneficiaries from entering the asylum system. This is a matter of serious concern. The Council’s approach, unfortunately, mirrors the Commission’s approach on this: Council of Europe’s press release dated 13 June 2025 notes:
“The temporary protection system alleviates the pressure on national asylum systems because persons falling under this type of protection do not need to apply for asylum on an individual basis. The extension until March 2027 is a signal to displaced people from Ukraine that it is not necessary to apply for asylum.”
The right to asylum is a fundamental right guaranteed under EU law, notably enshrined in Article 18 of the Charter of Fundamental Rights of the European Union. Furthermore, it must be recalled that Article 17 of the Temporary Protection Directive explicitly provides that individuals enjoying temporary protection must be able to lodge an asylum application at any time. Any approach that discourages access to the asylum procedure risks violating EU law and the broader principles of international refugee protection.
Sixth, while the Commission rightly highlights the need to prevent national asylum systems from becoming overwhelmed, there are lawful and pragmatic ways to achieve this without restricting or discouraging access to asylum. One such approach is the adoption of group-based or prima facie recognition of international protection status. Under this model, Member States could grant refugee or subsidiary protection to categories of displaced persons based on common characteristics or shared circumstances, thereby bypassing the need for full individual status determination in every case. Although the forthcoming Qualification Regulation—set to apply in 2026—retains the requirement for individual assessments, it allows for flexibility in implementation. Member States retain discretion to use accelerated procedures for applicants whose claims are likely to be well-founded (see Tan & Ineli-Ciger, 2024).
In the context of ongoing armed conflict in Ukraine and the risks posed by a sudden termination of temporary protection, group-based recognition could significantly ease pressure on asylum administrations while preserving procedural fairness and fundamental rights. This approach would be particularly relevant for countries hosting large Ukrainian populations, such as Germany and Poland, as it would facilitate a more efficient and rights-based transition to durable protection statuses while preserving the possibility of applying cessation clauses when protection needs no longer exist.
Eligibility criteria could preferably be formulated to include all individuals currently benefiting from temporary protection, recognising them as eligible for international protection. If such a broad approach proves unfeasible, the criteria could instead be narrowly tailored to reflect specific vulnerabilities such as region of origin (particularly for those from non-safe oblasts), special protection needs, and the absence of meaningful internal protection alternatives. For example, displaced persons from areas experiencing active hostilities or those facing specific risks could be granted international protection through streamlined procedures that maintain essential safeguards.
Conclusion
The Commission’s June 2025 proposals attempt to balance continued protection for displaced Ukrainians with the need to plan a structured transition beyond the Temporary Protection Directive. However, they fall short of providing legal certainty, coordinated long-term solutions, or adequate safeguards for the most vulnerable. The extension of temporary protection to March 2027 exceeds the Directive’s maximum time limit without offering either a sound legal basis or an unequivocal commitment that this will be the final prolongation. Furthermore, the overreliance on national migration statuses coupled with the underutilisation of international protection as a viable pathway, the absence of amendments to the Long-Term Residents Directive, and the lack of a harmonised post-temporary protection status risk entrenching fragmentation and perpetuating legal uncertainty across the Union.
The Council’s decision to extend temporary protection for five years or maybe more will also establish a precedent for how the EU responds to protracted displacement and operationalises its temporary protection frameworks in future crises. It is clear that the EU needs a better exit strategy than what the Commission proposed. The Temporary Protection Directive was designed to unify Member States in times of crisis. Its final chapter must reflect that original spirit by fostering solidarity, coherence, and legal certainty.