Why is the Temporary Protection Directive Missing from the European Refugee Crisis Debate?
Europe is in crisis. Over 475,000 asylum-seekers have arrived by sea across the Mediterranean this year alone, with 84% coming from the world’s top ten refugee-producing countries. Many are also coming by land, though the numbers are much more difficult to ascertain. According to the Organization for Economic Cooperation and Development (OECD), the recent surge in people seeking protection in Europe is unlikely to stop soon: it is projected that Europe will receive over one million asylum applications in 2015; at least 450,000 thousand of these applications are expected to be granted. The Temporary Protection Directive was developed by the EU in 2001 as a framework for managing an unexpected mass influx of individuals: so why has it been largely absent from the current ongoing conversation around refugees?
The most common destinations for refugees include Germany, Sweden, and the UK. Routes to Europe vary widely, but refugees most frequently travel on rickety boats, in untrustworthy vehicles, and on foot, often accompanied or facilitated by smugglers. On the way, they pass through eastern and southern European and Balkan countries. Front line states, including Turkey, Greece, and Italy, operate as the primary transit zones of the crisis and bear a heavy and immediate burden of care towards refugees, despite often lacking the financial and logistical preparation necessary the receive this many people in such a short time. Serbia, Croatia, Hungary, and other transit countries face border security concerns, a rise in human trafficking and smuggling, and mounting environmental and social tolls due to the large numbers of people passing through. In the long term, destination states will also face resettlement issues and increased costs associated with supporting refugees and asylum-seekers.
Over the past month, European leaders have scrambled to put together an agreement that will distribute the refugee burden throughout the European Union and grant aid to states like Greece and Italy where the most people are initially arriving in the EU. While not all states are signatories to the relevant conventions, they are still subject to binding customary international law, which places legal obligations on states regarding the reception and protection of refugees. The Emergency Agreement meets those basic obligations, but it falls short of creating a comprehensive response system for the flow of refugees. It likewise fails to provide the long-term solutions necessary for a crisis of this scale.
Under international law and European Union regulations, all European states have an obligation to protect and assist refugees. These obligations originate in the 1951 Refugee Convention and its 1967 Protocol, which form the foundation of international refugee law and include the most widely agreed-upon definition of a refugee, namely a person who is outside his or her country of origin and unable or unwilling to return due to a “well-founded fear of persecution” based on specific factors such as race, religion, and political affiliation. According to the customary law principle of non-refoulement, which is binding on all states, it is unlawful to return a refugee to the territory in which his or her life is threatened.
Once refugees reach Europe, they are required to register as a refugee and claim asylum in the state that is their point of first entry into Europe under the Dublin Regulation. Each refugee has a right to an individual status determination – including an in-person interview – by the state in which they are claiming asylum; in the case of an influx of hundreds of thousands of refugees, this requirement poses an immense financial and administrative burden on frontline states that are already short on resources and often have neither the material nor logistical ability to receive, register, and support hundreds of thousands of asylum-seekers, let alone the political will for such an undertaking. The Dublin system is now showing signs of deterioration, as refugees are passing through border and transit states en route to European countries with more economic opportunities or better social safety nets. This poses a serious challenge to all of Europe, and brings into question the freedom of travel enshrined as a core principle of European integration under the Schengen system, raising security concerns among states. However, it is equally unreasonable given the magnitude of arrivals to consistently enforce the Dublin regulations and oblige border states such as Italy and Greece to bear the economic and political burden of mass arrivals alone.
In direct contrast to these legal obligations, many European states – most notably Hungary, the Czech Republic, Romania, and Slovakia, which are threatening to refuse to take in refugees as required by the recent European Union agreement – maintain obstacles to refugee resettlement including byzantine bureaucratic requirements, mandatory quotas, and immediate, blanket rejection of applications. They argue that since refugees must apply in the first state in which they enter Europe under the Dublin Regulation, such persons have no right to travel throughout Europe to the destination of their choice; while this is true, EU states are still required to host asylum seekers in humane conditions and provide fair, quick, and high-quality asylum decisions. In response to state failures to follow these asylum requirements, the European Commission recently adopted 40 infringement decisions against Member States with physical, legal, and procedural shortcomings in their asylum mechanisms.
The emergency agreement by EU member states to share the burden of 120,000 asylum seekers over the next two years – while pitched as a concerted effort on the part of Western Europe to aid refugees in spite of the resulting strain on so-called European unity – is an attempt to put a finger in a dam that is already broken. According to a statement issued by the UN High Commissioner for Refugees (UNHCR) in response to the agreement, “a relocation program alone, at this stage in the crisis, will not be enough to stabilize the situation… The emergency situation currently facing Europe, which has seen 477,906 new sea arrivals this year… can only be addressed through a holistic and comprehensive approach, with all EU Member States working together in a constructive manner.”
Temporary protection directive: A solution?
Curiously absent from the discussion over the refugee crisis in Europe is any mention of the Temporary Protection Directive. Issued in 2001, the Directive was an effort to create a framework for coordinated action by European states in the event of a major refugee crisis. Created by the EU as an “exceptional scheme to offer [refugees] immediate protection,” it established “minimum standards for giving temporary protection in the event of a mass influx of displaced persons” and explicitly promotes “a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.”
The main benefit of the Directive is its scale, its mechanism for coordination between states, and one element crucial for asylum-seekers: the application of a group categorization for beneficiaries of temporary protection, which removes the need for individual status determinations. Practically speaking, this means that if a person is a member of a recognized protected group – for example, Syrians – then there is no need to individually prove “a well-founded fear of persecution” under the categories specified in the 1951 Refugee Convention. This frees up administrative resources otherwise dedicated to the painstaking task of interviewing and investigating each asylum application, and the limit of protection to one year, subject to extension by vote, should be sufficiently reassuring to states concerned about the weight of ongoing refugee assistance in the long term.
With such an on point Directive already in place, why is there no mention of it in the ongoing debate surrounding the crisis? The reason has three key elements.
First, as the UNHCR notes in its annotated comments on the Directive, there is an ongoing debate over the meaning of “mass or large-scale influx” in regards to the number and movement of refugees. Essentially, this argument is used by states to vote against the implementation of the Directive based on uncertainties surrounding which group or groups will be protected, and whether there are enough individuals in those groups to make an order for temporary protection necessary. The UNHCR contends that mass influx “should be understood as referring to a significant number of arrivals in a country, over a short time period, of persons from the same home country who have been displaced under circumstances indicating that members of the group would qualify for international protection, and for whom, due to their numbers, individual refugee status determination is procedurally impractical.” This definition seems to clearly apply to the current crisis, but there are further complications surrounding its use.
Second, there are more practical concerns: the Temporary Protection Directive is not self-executing but must be proposed, voted on, and adopted by the EU Commission. The triggering mechanism, found in Article 5, requires the establishment of the “existence of a mass influx of displaced persons [by] a Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council.” As of this time, no Member state has submitted such a proposal to the Council, the Council has not proposed the solution itself, and therefore no Council decision has been voted on or adopted. Thus Temporary Protection, despite its relevance, is not automatically applicable, and European states are fully able to ignore it if they choose.
And finally, there is the question of obsolescence. The Temporary Protection Directive has never been implemented, despite several global crises, such as in the Horn of Africa in the 1980s or Kosovo in the 1990s, that arguably caused a “mass influx” of refugees and asylum seekers to arrive in Europe. Cyclically, the failure to use the Directive has made it less likely that it will be used. Several theories exist as to why the Directive has never been used, most notably the trendy political excuse that enacting such legislation will serve as a “draw” for migrants to the EU. Another more practical concern is the required qualified majority vote may not be politically feasible given that the Directive requires refugee burden-sharing, a requirement unpopular in smaller European states with already strained resources.
So instead of implementing an existing framework created for just such a crisis, the heads of Europe have made a similar agreement, but one that lacks the short-term practicality and long-term benefits of the Directive. Unless Europe’s newest agreement, which was successfully passed through a qualified-majority vote, is able to adequately respond to hundreds of thousands of asylum-seekers in the coming months, this discussion is far from over; whether European states will be able to obtain political consensus, with or without making use of the Temporary Protection Directive, remains to be seen.
Kate Akkaya is the Legal Research Assistant for the Advanced Training Program on Humanitarian Action. She is currently in her second year at Northeastern University School of Law and holds a BA in International Affairs from Northeastern University, with minors in History and Middle Eastern Studies. She has previously worked with the NuLawLab on access to justice initiatives, and has also studied and conducted research in Turkey and Armenia with a focus on human rights, humanitarian, and conflict law.