SEMDOC briefing April 2001                     


Proposed Directive on temporary protection

This proposal follows the previous proposals during the 'Maastricht era' of JHA cooperation for a Joint Action on the same subject in 1997 (COM (97) 93, 5 March 1997), amended in 1998 (COM (98) 372, 24 June 1998; OJ 1998 C 268). These proposals were never adopted. In the meantime, the large numbers of people leaving Kosovo in 1999 provided, in the Commission's view, evidence of a need to have an EU system in place to deal with future 'mass influxes'.

The idea of 'temporary protection' (TP) can be applied in several ways. In its narrowest form, it only applies where there is such a large influx of people that it is impractical to examine all of their refugee claims simultaneously within a reasonable time frame, even though it is widely acknowledged that most or all of this group need international protection. In its widest form, it can be applied to take large groups of persons out of the ordinary system for determining and recognising Geneva Convention refugee status for a long period of time. This could also mean extending fewer rights to persons with TP status compared to Geneva Convention refugees. The crucial issues are therefore the definition of the circumstances in which a TP regime could be set up, the length of operation of temporary protection, the status which beneficiaries receive, the relationship between temporary protection status and Geneva Convention refugee status and the rules on return of persons once the TP regime terminates. On each of these points, the Commission's 2000 proposal improves upon the proposals of 1997 and 1998. However, in a number of ways the proposal needs further improvement.

According to the proposal, an EU TP regime should last only one year, but it could be extended for a maximum of one further year. The regime would be set up by a Council decision, taken by a qualified majority on a proposal from the Commission, but without prior consultation of the EP (due to the urgency of the decision). This decision would specify the date on which temporary protection takes effect and the groups of persons affected. The regime would terminate at the end of the maximum period, or earlier if the Council decides, on a qualified majority vote following a proposal from the Commission, that the situation in the country of origin has improved significantly enough. Member States would be free to add further related groups of persons to the EU regime, although the proposal does not set out rules governing purely national temporary protection regimes.

Chapter III of the proposal sets out details concerning personal status of the beneficiaries of temporary protection. It addresses residence status, information requirements, access to employment or self-employment, access to accommodation, social assistance, health, education and family reunion. Chapter IV sets out rules concerning the relationship between TP and access to the 'normal' asylum procedure. Member States would have to admit beneficiaries of the TP regime to the asylum procedure, but could delay considering their claims until the TP regime had terminated. However, if a Member State did consider claims for asylum status during the TP period, it would have to continue extending TP status to all asylum-seekers whose claims for Convention refugee status failed. Member States would be free to ban persons from simultaneously holding the status of asylum-seeker and the status of TP beneficiary; this would inevitably deter TP beneficiaries from claiming asylum even where claims were considered during the TP regime, since asylum-seekers usually have a far worse legal status than TP beneficiaries.

Finally, the Dublin Convention rules for determining which state was responsible for examining an asylum application would apply, so TP beneficiaries making claims in one Member State might find themselves removed to another Member State as a consequence.

Chapter V sets out rules on returning persons following the termination of the TP regime, while Chapter VI sets out rules on the transfer of asylum-seekers between different Member States.

The proposal is deficient because it does not regulate national TP regimes, leaving the prospect that in future crises, Member States will be tempted to eschew the Community's stronger TP rules in favour of weaker national rules, or to shift TP beneficiaries into a national regime once the EC regime expires. Furthermore, the ability to delay or deter asylum applications, or remove asylum applicants, is still far too extensive. However, Member States' interest in the proposal may lie in weakening it, not strengthening it; at the March 2001 JHA Council they considered the four of the five critical issues outlined above (excluding the status of TP beneficiaries), and it remains to be seen whether even the modestly attractive aspects of the Commission's proposal will be retained.

REFERENCE

SEMDOC: Statewatch European Monitoring and Documentation Centre. e-mail: office@statewatch.org