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Outline and critically discuss from the perspective of international protection, the regime for temporary protection established by Council Directive 2001/55/EC (the Temporary Protection Directive).

Unrest in the Balkan states during the 1990s gave rise to a humanitarian crisis without precedent in the European Union's history. Suddenly, EU countries were forced to contend with millions of displaced peoples on their doorstep. The EU lacked the tools to respond effectively and it was subsequently decided to prepare a common policy on asylum that would enable member states to synchronise their response to such crises.

Council Directive 2001/55/EC was the first of a number of measures to that end. This paper will outline the key characteristics of the Temporary Protection Directive and critically consider its efficacy in terms of the international protection of displaced persons.

An outline of the Temporary Protection Directive (TPD)

The TPD sets out the mechanisms and minimum standards for temporary protection of in the event of a mass influx from a non-EU country. The procedures will be put in place when the Council of Ministers decides, by qualified majority, that such an influx has taken place and temporary protection will then be granted on a group basis.

Temporary protection itself is defined as a procedure of exceptional character that effectively provides a fast-track response where vast numbers of people are seeking refuge, with which the trundling mechanisms of national asylum processing would most likely be unable to cope. The period of temporary protection is initially set up for one year, but it may be extended to a maximum of two years, or terminated early if the cause of the population displacement is resolved.

Member states are obliged to provide protectees with a residence permit, allow them to work, provide housing, social welfare and medical assistance, as well as education for the under 18s, and they must take steps to allow close family members to re-unite where they have been separated. Member states are, of course, entitled to provide greater provisions than these; the TPD simply sets out the bare minimum.

It is important to note that those who benefit from temporary protection are not precluded from applying for asylum in the usual manner. Article 3(1) explicitly provides that rights under the Geneva Convention will be unaffected by temporary protection.

Analysis of the Directive

The spirit of the TPD is certainly laudable. The aim is to provide a swift and harmonised humanitarian response to a large number of people fleeing crisis in their own country. There is a strong theoretical emphasis upon the importance of effective systems of international protection of rights.

Concerns have been expressed, however, that the Directive may do more harm than good. Elspeth Guild identifies two problems in particular. Firstly, she argues, the scheme is overly reliant on the Council of Ministers. Since temporary protection may only be established at the behest of the Council, the process is blatantly politicised and Guild fears that it may be stymied by political inertia. She points out that humanitarian crises such as those arising in Afghanistan and Iraq should have been opportunities for temporary protections scheme to be established, but European governments were keen to keep displaced persons in their own region rather than encouraging them to seek safety in Europe.

This argument is not particularly compelling; while politicisation may undermine the efficacy of the temporary protection system, it is frankly unrealistic to expect a scheme that operates entirely independently of political influence.

Secondly, Guild states that temporary protection scheme effectively undermines an individual's rights under the much more comprehensive Geneva Convention. She asserts that, since the scheme offers an alternative to processing applications under the Geneva Convention that can last up to two years, it impedes the asylum application process, which in turn slows the process of naturalisation. She further points out that the situation in a person's home country may improve during the two year period and, as a result, that person may no longer qualify for an asylum application.

Guild's second argument can be contested on two grounds. Firstly, she is arguably considering the issue from the wrong perspective. It is unclear why she presumes that displaced persons would prefer to remain in a temporary host country than to return and attempt to rebuild the homeland they were forced to leave. Given the group nature of temporary protection, a failure to return home could spell the dissipation and ultimate extinction of an entire community. EU countries should support the rebuilding of shattered societies and the temporary nature of the scheme put in place under the Directive could be said to encourage displaced persons to plan for a future in their country of origin.

Secondly, there is no reason to suppose that the TPD scheme would prevent an individual from applying for asylum through the traditional channels. The Directive clearly distinguishes between temporary protection and asylum and, as previously mentioned, Article 3(1) explicitly provides that Geneva Convention rights, including the right to claim asylum, are not prejudiced by the TPD. If the maximum two year period expires and it is still unsafe to return to the country of origin, there is nothing to stop those concerned from applying for asylum at that stage.

It is worthwhile noting that, in the UK at least, TPD puts individuals in a better position in some respects. Protectees, unlike Geneva asylum-seekers, are entitled to seek employment and therefore integrate better into the host culture.

Guild does make a valid argument, also raised by Gilbert, when she points out the practical problems in applying the Directive. She questions whether it will be feasible to repatriate vast numbers of people after two years. It will be necessary to identify them, to serve them with the decision to repatriate them and then to actually enforce that decision. This is an problem inherent in any asylum system, however, and hardly unique to the TPD scheme.

Another practical problem with the TPD, at least when it is considered in isolation, is that it contains no provision to allow entry into the European Union itself. The right to temporary protection is of very little use if displaced persons are unable to find their way to an EU country in the first place.

Finally, it might be argued that the TPD is undermined by Ireland and Denmark's decision opt out. However, as the EU becomes larger the abstention of two nations appears increasingly insignificant. The vast majority of EU nations have signed up to this Directive, demonstrating their commitment to temporary protection.

Conclusion

The TPD certainly suffers from deficiencies in terms of practical applicability. Even so, these are no greater than the practical problems inherent in any such system.

The reality is that the unwieldy asylum systems established by individual nations in response to fulfil Geneva Convention obligations are largely incapable of responding with the speed and efficiency necessary to prevent the enormous suffering that arises from mass displacement of people. As an emergency measure, therefore, the TPD is an essential tool in the European international protection regime.

BIBLIOGRAPHY

Legislation

Council Directive 2001/55/EC

Journal Articles

Gilbert, G. Is Europe living up to its obligations to refugees? EJIL 2004 15 (963)

Guild, E. Seeking Asylum: Storm clouds between international commitments and EU legislative measures E.L. Rev. 2004, 29(2), 198-218

Noll, G. and Vedsted-Hansen, J. Temporary Protection and Burden Sharing: Conditionalising Access Suspending Refugee Rights? in E. Guild and C. Harlow (eds.) Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Oxford: Hart, 2001) 195-222

Reynolds, S. Legislative Development: European Council Directive 2001/55/EC: Toward a Common European Asylum System 8 Colum. J. Eur. L. 359

Legislative Comment: EU Temporary Protection for Refugees Established EU Focus 2001, 83/84, 8-9

Government Publications

Immigration, Asylum and Social Integration (Office for Official Publications of the European Communities: Luxembourg ) 2002

Internet Resources

European Council on Refugees and Exiles, ECRE Information Note on the Council Directive 2001/55/EC at < Immigration, Asylum and Social Integration (Office for Official Publications of the European Communities: Luxembourg ) 2002 (hereinafter Immigration) at 43

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