Since the beginning of the russian-Ukrainian war, more than 3 million people have crossed the Ukrainian border, and this number is growing every day. Slightly fewer, about 2 million people have been forced to move internally within our country. All these people are generally called “refugees”, which is not entirely legally correct.
First of all, it should be noted that “temporary protection” and “refugee status” are different legal categories, which, respectively, create different legal consequences. This article will discuss the legal status of people who were forced to flee the war.
The main document regulating the provision of temporary protection is the EU Directive 2001/55 / EC 2001/55 / EC 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 the Member States in receiving such persons and bearing the consequences”. This Directive establishes minimum standards for the provision of temporary protection in the event of a mass influx of displaced persons. Its task is to provide temporary protection to displaced persons without complicated bureaucratic procedures in order to reduce the pressure on the asylum system (refugee status).
The Directive is not a new normative act, it was approved in 2001, but only on March 4, 2022, the EU Council recognized by its decision that russia’s unprovoked and unjustified military aggression against Ukraine is a basis for providing temporary protection to victims of military aggression, and thus activated the Directive. However, in order to implement the provisions on granting temporary protection, EU member states must adopt their own regulations, as the EU Council Decision has no direct effect.
What is temporary protection?
Temporary protection is an exclusive procedure for granting international protection to a large number of people simultaneously and automatically (without the need to consider individual applications). This means that it is only possible in the event of a mass influx or an imminent influx of displaced persons from third countries who cannot return to their country of origin.
According to the Directive, displaced persons are third-country nationals or stateless persons who have had to leave their country and who cannot return due to unsafe conditions due to the situation in that country, in particular:
- persons who have fled areas of armed conflict or endemic violence;
- persons at serious risk of, or who have been the victims of, systematic or generalized violations of their human rights.
Overall, this definition is very similar to the definition of refugee status provided by international law. It should be noted that obtaining temporary protection does not deprive a person of the right to apply for refugee status. That is, a person who has received such protection can apply for asylum at any time. But keep in mind that these two statuses cannot be granted at the same time. If a person has applied for asylum and has been denied this status, he or she may enjoy or continue to enjoy temporary protection.
Temporary protection allows displaced persons to enjoy harmonized rights throughout the EU. This means that displaced persons have the right to employment (both the right to be employed and the right to engage in entrepreneurial activity); opportunities for education and retraining; and access to the social security system in the host country on the same basis as citizens of that country.
Such persons are provided with access to housing, necessary financial assistance, and medical care (emergency care and emergency treatment), in particular for persons with special needs.
For minors under the age of 18, Member States shall grant them access to the public education process and to receive their education under the same conditions as nationals of the host Member State. The right to study can also be granted to adults, at the discretion of the host country.
Validity of temporary protection.
As a general rule, the duration of temporary protection is one year. It can be automatically extended by six monthly periods for a maximum of one year. If the grounds for granting temporary protection are maintained, it may be extended again for a period of up to one year. That is, temporary protection can last for a maximum of 3 years. Thus, the Republic of Poland has determined that it provides temporary protection to Ukrainians for 18 months, the Czech Republic – for 1 year from the date of application, the Slovak Republic – until 31.12.2022, and Hungary – until 01.06.2022 and the decision to extend the term will be made further.
Temporary protection ends or is revoked when its maximum duration has been reached or at any time agreed by the EU Council (for example, when the grounds for protection no longer exist). Also, temporary protection is terminated if a person acquires refugee status or changes his / her country of residence.
After the end of the temporary protection, the person must voluntarily leave the territory of the respective state. If this is not done, the procedure of forced return to the country of origin may be applied to the person.
Who has the right to enjoy the protection?
Temporary protection applies to persons displaced from Ukraine on on February 24, 2022, or after that date, namely:
- citizens of Ukraine residing in Ukraine before 24 February 2022;
- stateless persons and third-country nationals who have enjoyed international protection or equivalent national protection in Ukraine before 24 February 2022;
- family members of these persons (spouse or unmarried partner in a stable relationship (if the relevant legislation of the country considers unmarried couples as married), minor unmarried children, other close relatives who lived together as part of the family and depended on the above persons).
The provision of temporary protection may also apply to other categories of persons. The EU recommends that the Member States expand the list of persons who may be granted protection. In particular, this may apply to third-country nationals who can prove that they have legally resided in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit in Ukraine or on other grounds (e.g. education, medical treatment, employment) and who are unable to return in safe conditions to their country of origin.
Also, the country may provide temporary protection to persons who found themselves in the territory of the European Union immediately before 24 February 2022 – for example, due to work or vacation, and who cannot return to Ukraine because of the war.
Under the Directive, temporary protection is not granted to a person who:
- has committed a crime of peace, a war crime, or a crime against humanity;
- committed a serious non-political crime outside an EU Member State before being admitted to that State as a person enjoying temporary protection;
- was guilty of acts contrary to the purposes and principles of the United Nations;
- may endanger the security of the host Member State or who has been convicted by a final sentence of a particularly serious crime and constitute a danger to society.
How to receive temporary protection?
When crossing the border of an EU Member State, the public authorities of the country must inform the person of the right to temporary protection. Temporary protection is granted automatically, however, to obtain confirmation of such protection, the person must apply to the relevant competent authority of the host country.
Ukrainian citizens have the right to stay in the EU without a visa for no more than 90 days in the 180 days period. During this time, they have the opportunity to choose the country in which they want to enjoy temporary protection rights and join their family and friends in the large diaspora networks that now exist across the EU. After receiving temporary protection in a particular country, a person can enjoy all the rights granted to them in the country.
The process of obtaining temporary protection is quite fast and as simple as possible. Each EU member state determines the procedure and its authorized bodies. In particular, in Poland, a person can legally stay for 18 months (until 24.08.2023). If a person intends to stay longer, it is necessary to apply to the voivode in the voivodeship where the person resides. During these 18 months, a person can cross the Polish-Ukrainian border, but leaving Poland for more than a month will deprive of the right to an extended stay. In order to gain access to employment and others to address other social issues, one needs to register with any gmina or city government in Poland. After registration, a person receives an analog of the Ukrainian identification code – PESEL, which is useful in Poland to address many issues, including official ones.
In Germany, there is also a corresponding registration upon arrival in its territory. To begin with, you need to register your place of residence with the relevant city council (even if the person resides in a hotel). The next step is to register with the immigration service to obtain a residence permit. After this stage, the person receives the right to reside in Germany and access social benefits.