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Is it time to invoke the EU’s Temporary Protection Directive for Syrian refugees?

Back in 2001 the EU adopted Council Directive 2001/55/EC, usually referred to as the Temporary Protection Directive. Its full title reveals its purpose:

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

You might be able to see where I’m going with this… And I am certainly not the first. It was Syd Bolton who reminded me of the Directive (blog post from Syd to follow shortly on the situation in Lesvos), but ex colleague Cynthia Orchard has also written on the subject as has current colleague Adrian Berry.

The Directive has never yet been triggered. The context to its adoption was the influx into the EU of refugees from the former Yugoslavia and then from Kosovo. The EU wanted to make sure that Member States were able and willing to assist with a future mass influx of people and established a legal framework for doing so. The preamble to the Directive makes clear the underlying policy purpose:

(8) It is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons.

(9)  Those standards and measures are linked and interdependent for reasons of effectiveness, coherence and solidarity and in order, in particular, to avert the risk of secondary movements. They should therefore be enacted in a single legal instrument.

This certainly seems prescient given the current debate within the EU and Member States about how to react to the influx of Syrian refugees.

The main text of the Directive sets out the conditions for triggering temporary protection. A proposal must come from the Commission and then the Council (made up of representatives of the Member States) must adopt a resolution. It is done by qualified majority voting, meaning that even if one or Member States object the resolution can still be adopted. The UK is signed up to this Directive so it would be binding on the UK.

Those with temporary protection have rights to work, accommodation, education and more. There are exclusion criteria for those who are a security risk.

However, the Directive is certainly not a panacea.

Temporary Protection is primarily designed to last one year but can be extended by a decision of the Council. Refugee Status can be denied to those with Temporary Protection until the status ends.

There is a tacit acceptance in the Directive that people may be evacuated rather than make their own journey to the EU, there is nothing in the Directive to promote or fund such evacuation.

While Article 25 deals with the issue of “solidarity” between EU Member States, it is basically up to the Member States to indicate their capacity. There is no mechanism for imposing binding quotas if that self declared capacity is exceeded, only for “recommending additional support for Member States affected.”

Activating the Directive would deny refugee status to Syrians who fell within it but would regularise their status far more rapidly and efficiently than the full asylum determination process. The protection would be temporary and would not come with the full rights associated with refugee status, such as family reunion. If Member States did not offer sufficient capacity to absorb the influx, there is no clear means by which quotas could be enforced, but there would be a far clearer imperative to assist Member States most affected.

Has the time now come to invoke it? Would it do any good at this stage? Or did EU policy makers bottle it when the Directive was drafted and adopted in 2001?

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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