Guidance to Member States on the application of temporary protection

The Official Journal of the European Union (OJEU) has published the Communication from the Commission on the operational guidelines for the implementation of Implementing Decision 2022/382 of the Council establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and with the effect of initiating temporary protection 2022/C 126 I/01, with guidance to Member States on the basis of the questions raised by them on the scope (persons covered or not), how to deal with children, the right to move freely between Member States, the register of information, the trafficking in human beingss or the asylum procedure, inter alia.

We highlight:

Therefore, the guidelines are conceived as a living document and will have to be regularly updated in the light of new questions raised by Member States, in order to reflect the situation on the ground and to take due account of the evolving needs of Member States. These guidelines may be followed by more specific recommendations on specific topics. The Commission also has the intention to regularly update the dedicated website including information for people fleeing the war in Ukraine, with any additional guidance Member States may require. 

The Commission has set up a "Solidarity Platform" in order to coordinate the operational response among Member States, (…)

The Solidarity Platform will facilitate the mobilisation of relevant EU instruments. coordinate the matching of solidarity offers to the identified needs and organise the transfer of persons at general level between Member States and, where appropriate, to third countries, in cooperation with EU agencies and other relevant actors.

Member States appointed two persons, one to be the national contact point with decision-making capacity and one at operational level. All information concerning the Solidarity Platform, as well as any additional questions related to the implementation of the Council Decision on these guidelines, should be sent to the dedicated functional mailbox already communicated to the Member States. (…)

The present guidelines aim to assist Member States in the implementation of the Council Decision and Council Directive 2001/55/EC (2) (Temporary Protection Directive) and other applicable provisions of EU law. Complement the Commission Communication of 2 March 2022 providing operational guidelines for the management of the external borders to facilitate border crossings at the EU-Ukraine borders (3).

1.   PERSONS COVERED BY TEMPORARY PROTECTION

Persons entitled to temporary protection or adequate protection under national law in accordance with the Council Implementing Decision 2022/382 (‘the Council Decision’)

What is meant by ‘adequate protection’ under national law as set out in Article 2(2) of the Council Decision?

What is meant by ‘equivalent national protection’ in Ukraine in Article 2(1)(b) of the Council Decision?

Proof that you are entitled to temporary protection under Directive 2001/55/EC or to adequate protection under national law

The Council Decision has introduced a immediate temporary protection for the categories of persons listed in Article 2(1) and (2) (…)

In case the documents submitted have expired, Member States are encouraged to consider them as proof of the identity or residence status of the person concerned.

If Member States have doubts as to the authenticity of the documentation, or if the person concerned is not in possession of the above-mentioned documentation, Ukrainian authorities with a presence in the Member States can be contacted for assistance or proof, if possible, the Ukrainian nationality of the person concerned or his or her residence status in Ukraine.

In cases where the person concerned is unable to submit the relevant documentation and Member States cannot otherwise promptly clarify whether he or she is entitled to temporary protection or adequate protection under national law, the Commission proposes to urge the person concerned to initiate the asylum procedure.. Similarly, they should be urged to initiate the asylum procedure. to those who declare that they cannot safely return to their country or region of origin when the process of clarifying whether enjoy the right to temporary protection or adequate protection under national law is too complex.

Indicative list of documents proving Ukrainian nationality, even if their period of validity has expired:

— passports of any kind (national, diplomatic, service, collective and substitute passports, including children’s passports);

— national identity cards (including temporary and provisional);

— military service cards and cards;

— sea register, masters’ service cards and sea passports;

— citizenship certificates; and

— other official documents mentioning or indicating nationality.

What is meant by ‘not being able to return to their country or region of origin under safe and lasting conditions’ in Article 2(2) and (3) of the Council Decision?

(…) Return to the country or region of origin under safe and lasting conditions is not defined either in Directive 2001/55/EC or in the Council Decision. The Commission considers that this is a concept sui generis of the Directive. (…)

In that regard, the impossibility ofreturn safely» may arise, for example, from a clear risk to the security of the person concerned, situations of armed conflict or ongoing violence, documented risks of persecution or other inhuman or degrading treatment or punishment.

For the return to be ‘durable», the person concerned should be able to enjoy active rights in his or her country or region of origin, enabling him or her to expect that his or her basic needs will be met in his or her country or region of origin, as well as the possibility of reintegrating into society. (…)

Family members entitled to temporary protection and other possibilities of family reunification

(…) (c) other close relatives who lived together as part of the family unit at the time of the circumstances related to the mass influx of displaced persons and who were wholly or mainly dependent on the person covered by temporary protection, which could be evidenced by residence documents, the family book and proof of relevant care benefits;Member States should use "their discretion with the most humanitarian criteria"» (5). (…)

Persons without the right to temporary protection or adequate national protection under the terms of the Council Decision and the possibility of extending temporary protection to this category of persons (Article 7(1) of the Temporary Protection Directive)

The following categories of displaced persons are not, in principle, entitled to temporary protection under Directive 2001/55/EC or to adequate protection under national law: (…)

In addition, the following categories of displaced persons are also not entitled to temporary protection under Directive 2001/55/EC or to adequate protection under national law: (…)

According to recital 14 of the Council Decision, the Commission strongly encourages Member States to consider extending temporary protection to those who fled Ukraine shortly before 24 February 2022 (persons referred to in points 1 and 2 above)

This is because, in any case, these people will not be able to return to Ukraine as a country of origin or refuge in the current context. The alternative is to allow them to immediately start asylum procedures and prioritise their files as these people need immediate protection in the same way as the Ukrainians who fled on 24 February. (…)

Persons who may be excluded from temporary protection (Article 28 of the Temporary Protection Directive)

Member States may exclude a displaced person from temporary protection if they have serious grounds to believe that he or she has committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime outside the host Member State prior to his or her admission to that Member State as a person enjoying temporary protection, or has been found guilty of acts contrary to the purposes and principles of the United Nations.

Member States may also exclude a displaced person from temporary protection where there are reasonable grounds to consider that person a danger to the security of the host Member State or a danger to the community of the host Member State.

The Commission strongly recommends that Member States, before issuing a residence permit persons entitled to temporary protection or adequate protection under national law; consult relevant international, EU and national databases, and in particular alerts on persons and Schengen Information System (SIS) documents, enabling them to carry out the necessary security screening (see section 4 for details).

Minors

According to estimates, children (under 18) represent more than half of the population that has left Ukraine since 24 February 2022 due to the war (6). In line with the Communication on the protection of migrant children (7) 2017 the protection of migrant children from Ukraine is an absolute priority for the EU. The recommendations made by the Commission in that context to strengthen the protection of all migrant children, regardless of their status, remain valid in the light of the Ukrainian crisis.

Full protection and prompt access to the specific rights of children (education, health care, including preventive and mental health care, psychosocial assistance) as well as support services necessary to ensure the best interests and well-being of all children fleeing the Ukrainian conflict should be ensured. (8). The opinion of minors should be heard and taken into account, depending on the age and degree of maturity. An integrated child protection response should be ensured, with the cooperation and coordination of the relevant authorities.

Due account should be taken and specific obstacles often faced by migrant children (e.g. language barriers) with regard to access to decent housing, quality education and other social services should be addressed.

Member States are encouraged to ensure that all children receive, in a child-friendly and age- and context-appropriate manner, relevant information on the situation, their rights and the procedures and services available for their protection. They are also encouraged to ensure that persons working with children (from the time of their arrival at EU borders) are adequately trained and that child protection professionals are involved where appropriate.

All decisions or actions to be taken in relation to children should have as a primary consideration the principle of the best interests of the child.

The situation of unaccompanied, separated or orphaned minors is addressed in more detail in section 5.

Access to education for children (Article 14(1) of the Temporary Protection Directive)

(…) Access to education for minors shall be ensured as soon as materially possible where it is evident that they fulfil the conditions for temporary protection or for adequate protection under national law, even if the procedure for issuing residence permits is still pending. This can be demonstrated by means of identity documents of the minors or any other official document that can be provided to prove identity.

In the same vein, the Commission recommends that unaccompanied minors be provided with access to education as soon as possible, including when procedures are under way to appoint a guardian/representative or to determine the type of assistance to which the minor is entitled. (…)

2.   Right to move freely

Right to move before the residence permit is issued

(…) Commission recommends that authorities in Member States of first entry ask interested persons wishing to move to another Member State to indicate which Member State they will go to. The purpose of these questions should be to obtain an indication of the number of persons intending to move to certain Member States. Member States of first entry must anonymously report the information collected (number of persons expected to enter Member State X, Y or Z) via the Blueprint network.

Ukrainian citizens holding biometric passports or other third-country nationals who are exempt from the requirement to hold a short-stay visa to enter the Union have the right to move freely within the Schengen area after having been admitted to the territory for a period of 90 days, within a period of 180 days. Consequently, they may travel to the Member State in which they wish to enjoy the rights attached to temporary protection and meettheir family and friends from among the important Ukrainian diaspora networks that currently exist across the Union.

For those who are not exempt from the visa requirement (…), and who are entitled to temporary protection or adequate protection under national law, the Commission recalls that, in accordance with Article 8(3) of Directive 2001/55/EC, Member States must offer persons entitled to temporary protection or adequate protection under national law tthe facilities for obtaining the necessary visas, including transit visas, to be admitted to their territories. In view of the emergency situation, the formalities will be kept to a minimum. (…)

In line with the operational guidelines for the management of the external borders (12), the Commission recommends that Member States do not impose financial penalties on carriers transferring persons entitled to temporary protection or adequate national protection from a Member State who are not in possession of the documentation required to enter the Member State of destination. Member States should ensure that air carriers are informed thereof. (…)

Right to move freely after the residence permit has been issued

Once a Member State has issued a residence permit in accordance with Article 8 of Directive 2001/55/EC, the person enjoying temporary protection has the right to travel to Member States other than the one which issued the residence permit for 90 days, within a period of 180 days. If that person subsequently moves to another Member State, where he receives another residence permit under temporary protection, the first residence permit issued and his derived rights shall expire and be withdrawn., in accordance with Articles 15(6) and 26(4) of Directive 2001/55/EC.

It should be noted that, with a view to supporting Member States which are the main entry points for the mass influx of displaced persons fleeing the war from Ukraine covered by the Council Decision, and to promoting a balance of efforts among all Member States, Member States agreed not to apply Article 11 of Directive 2001/55/EC in relation to persons enjoying temporary protection in a given Member State in accordance with the Council Decision and who moved to another Member State without authorisation, unless Member States reach a different agreement bilaterally. (13).

3.   REGISTRATION (ARTICLE 10 TEMPORARY PROTECTION DIRECTIVE)

(…)

4.   RESIDENCE PERMIT (ARTICLE 8 TEMPORARY PROTECTION DIRECTIVE)

Member States should provide persons benefiting from temporary protection with residence permits throughout the period of protection and issue documentation or other similar evidence to that effect., (…) The temporary protection introduced by the Council Decision lasts for one year from its entry into force, i.e. from 4 March 2022 to 4 March 2023., in accordance with Article 4(1) of Directive 2001/55/EC.

The residence permit would then serve as a document to prove your status to other authorities, such as employment offices and services, schools and hospitals. The Commission would like to underline that the one-year period is objective, i.e. extending until 4 March 2023, regardless of when the residence permit was issued.. Therefore, the end date of all residence permits issued under the Council Decision will be 4 March 2023, in accordance with Article 4(1) of Directive 2001/55/EC.

If during this period the Council does not adopt a decision, on a proposal from the Commission, to end the temporary protection, the temporary protection shall be automatically extended by six months, i.e. until 4 September 2023, and again by six months, i.e. until 4 March 2024.. The obligation to issue or extend residence permits would be maintained during these periods. In order to reduce the administrative burden of renewing permits, Member States may grant the residence permit for a period of two years from the outset, knowing that temporary protection can be terminated at any time.or, in accordance with Article 6(1)(b) of the Directive. If Member States do not make use of this possibility, they will have to renew residence permits twice for periods of six months.

On the other hand, if the Council adopts a decision, on a proposal from the Commission in accordance with Article 6(1)(b) of Directive 2001/55/EC, in order to put an end to temporary protection before these dates, residence permits issued, being declaratory only (being the Decision itself constituting rights), would cease to be valid and should be withdrawn. Member States shall publish, through their national procedures and channels, that all residence permits under temporary protection are no longer valid at the specific date.

For the purpose of granting rights related to temporary protection or adequate protection under national law, where applicable; the Commission recommends that Member States facilitate the opening of a bank account and access to relevant services on the basis of an identification document or equivalent identification solution accepted by Member States, and proof of entry into the EU as of 24 February 2022 or on the same date, even if the procedure for issuing a residence permit is still pending.

(…) A renewed SIS will become operational in the coming months (2022), and Member States are expected to swiftly implement the new functionalities and make the best use of them.

5.   Unaccompanied minors (ARTICLE 16 OF THE TEMPORARY PROTECTION DIRECTIVE)

(…) The Commission would like to emphasise that, by applying the legal guarantees specifically provided for unaccompanied minors and children who have been separated from their families, the aim is to strike the right balance between the degree of flexibility necessary for the effective functioning of solidarity and the need to ensure respect for the basic guarantees that apply to unaccompanied minors and thus their full protection.

(…)

The representation in the Member State of first entry it should be ensured as soon as possible by the presence of a representative of the child protection services, or, where appropriate, the persons or organisations designated to act on behalf of those services, at all stages of the proceedings in which the best interests of the child must be taken into account in the decision-making process concerning the child. It is not necessary to designate the representative in a specific manner for each unaccompanied minor; it is sufficient for him or her to be given a general mandate to intervene where necessary to ensure that the best interests of unaccompanied minors are taken into account. (…)

With regard to the Member States of destination, the Commission recommends that they launch a rapid procedure for registering the presence of unaccompanied minors who are established in their territory and that they initiate as soon as possible the procedures for appointing the guardian or legal representative and entrusting the care of the minor, as provided for in national law and subject to the relevant checks, in particular as regards the assessment of the best interests of the minor and the verification that the adults involved in these cases do not have a criminal record for crimes related to minors. (…)

As already noted, sIt encourages Member States to carry out the necessary checks and make optimal use of the possibilities of the Schengen Information System. As soon as the renewed SIS becomes operational, it will make it possible to enter not only ‘reactive’ alerts on missing children, but also ‘preventive’ alerts on missing children.:

— minors at risk of abduction,

— children at risk of being illegally transferred abroad or prevented from travelling for their own protection,

— vulnerable adults at risk of being illegally transferred abroad or prevented from travelling for their own protection,

— collection of information on persons or objects in the framework of investigations (investigation checks); and

— persons being searched, whose identity is unknown, for identification by the use of impressions collected at the place of the commission of a serious crime.

6. TREATMENT OF HUMAN BEINGS

(…) Most of the people fleeing Ukraine are women and children. Traffickers, in particular organised crime groups, could take advantage of their vulnerability to engage in any form of exploitation related to trafficking in human beings, especially sexual or labour exploitation. Member States are strongly recommended to take appropriate preventive measures, specifically targeting people fleeing Ukraine. Other measures include providing information on the risks related to trafficking in human beings at border crossing points, in reception centres and to competent authorities and civil society organisations that may be in contact with the persons concerned. The information should be provided in a language understood by persons fleeing Ukraine and, in the case of unaccompanied minors, adapted and age-appropriate. In addition, such information should be available on the internet and include the number of an emergency hotline that can be contacted in several languages 24 hours a day, seven days a week..(…)

7.   ACCESS TO THE ASYLUM PROCEDURE

In accordance with Article 17 of Directive 2001/55/EC, persons enjoying temporary protection have the right to make and lodge an application for international protection at any time. 

Without prejudice to the right to lodge an application for international protection, beneficiaries of temporary protection should be assured of the rights that this status would grant them.

Member States also have the possibility to provide that the benefit of temporary protection cannot be cumulated with the status of applicant for international protection when the application is under consideration. (Article 19 of Directive 2001/55/EC).

Therefore, it is very important that the person is fully informed about the practices applied by the Member State, so that he can decide whether to apply for international protection in addition to a residence permit proving his status as a beneficiary of temporary protection.

In line with Article 19(2) of Directive 2001/55/EC, where a person who may or already enjoys temporary protection or adequate protection under national law decides to apply for international protection and, after examination, is not granted refugee status or subsidiary protection, that person shall enjoy or continue to enjoy temporary protection or adequate protection under national law for the remaining period of protection. (…)

Application of the Dublin III Regulation

(…) When implementing the Dublin Regulation, the Commission strongly recommends Member States to take into account the spirit of the statement made by the Council when adopting the Decision. Council Implementing Regulation 2022/382, cin order to ease the pressure on Member States facing mass arrivals. Since a person who is entitled to temporary protection or adequate protection under national law may enjoy his or her rights in any Member State, in case that person applies for international protection, the Member State in which the application was lodged is strongly recommended to take responsibility for the examination of the application under the discretionary clause set out in Article 17(1) where a Member State experiencing mass arrivals is liable under the responsibility criteria. (19) set out in the Dublin III Regulation, in order to alleviate the pressure on that Member State.

The approach proposed by the Commission should also reduce the risk of multiple applications in several Member States, thus alleviating the burden on asylum systems.

As regards family reunification, the Commission calls on the Member States to cooperate swiftly to ensure rapid reunification of family members.

8.   REPATRIATION AID

(…) Persons who do not benefit from temporary protection or, where appropriate, adequate protection under national law, and have no right to remain in the territory of the Member States under Union or national law, they would have to be repatriated to their countries of origin.

The Commission recommends that Member States issue, in accordance with Article 6(4) of the Return Directive (21), national permits or authorisations offering a right of stay of limited duration on humanitarian grounds. This will make it easier for people in the situation described above to have access to basic assistance, including accommodation and social and medical assistance until they are repatriated.

While it is primarily the responsibility of third countries of origin to ensure the safe repatriation of their citizens stranded in the EU, Member States need to coordinate with the authorities of those countries to facilitate and support the organisation of repatriation operations.. If necessary, other Member States or the Commission and the High Representative should provide specific assistance to facilitate contact with the authorities of certain third countries of repatriation.(…)

9.   SUPPLY OF INFORMATION IN A DOCUMENT OR FOLLETE (ARTICLE 9 OF THE TEMPORARY PROTECTION DIRECTIVE) (…)

10.   INFORMATION TO BE SUBMITTED UNDER THE RECTOR PLAN (…)