Content

Achilles Skordas, Temporary Protection Directive 2001/55/EC in:

Kay Hailbronner, Daniel Thym (Ed.)

EU Immigration and Asylum Law, page 1055 - 1108

A Commentary

2. Edition 2016, ISBN print: 978-3-8487-1285-4, ISBN online: 978-3-8452-5920-8, https://doi.org/10.5771/9783845259208-1055

Series: Kooperationswerke Beck - Hart – Nomos

Bibliographic information
Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:10 3B2 9.1.580; Page size: 160.00mm 240.00mm II. Council Directive 2001/55/EC of 20 July 2001 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 Member States in receiving such persons and bearing the consequences thereof Official Journal L 212, 07/08/2001, p. 12–23 Commission Decision 2003/690/EC of 2 October 2003 on the request by Ireland to accept Council Directive 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 Member States in receiving such persons and bearing the consequences thereof (notified under document number C (2003) 3428) Official Journal L 251, 03/10/2003, p. 23 Selected Bibliography: Arenas, ‘The Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’, EJML 7 (2005), p. 435; Boutruche-Zarevac, La protection temporaire des personnnes de´place´es en droit de l’UE: un nouveau mode`le en cas d’afflux massifs? (Editions Universitaires Europe´ennes, 2012); Bunyan (ed.), Key texts on Justice and Home Affairs in the European Union, Volume 1 (1976–1993) – From Trevi to Maastricht, Statewatch, London 1997; Durieux/McAdam, ‘Non-Refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies’, IJRL 16 (2004), p. 4; European Migration Network (EMN), The different national practices concerning granting of non-EU harmonized protection statuses, December 2010; Fandrich, A Comparative Study on the Asylum Landscapes within the EU for Iraqis after the 2003 Iraq War and Syrians after the 2011 Syrian Civil War, EUI Working Paper RSCAS 2013/89; Fitzpatrick, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’, AJIL 94 (2000), p. 279; Hailbronner, ‘Rechtsfragen der Aufnahme von ‘Gewaltflu¨chtlingen’ in Westeuropa – am Beispiel Jugoslawien’, Schweizerische Zeitschrift fu¨r internationales und europa¨isches Recht 3 (1993), p. 517; Hailbronner, ‘European Immigration and Asylum Law Under the Amsterdam Treaty’, CMLR 35 (1998), p. 1047; Hathaway/Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, Harvard Human Rights Journal 10 (1997), p. 115; Ineli-Ciger, ‘Implications of the New Turkish Law on Foreigners and International Protection and Regulation no. 29153 on Temporary Protection for Syrians Seeking Protection in Turkey’, Oxford Monitor of Forced Migration 4 (2014), p. 28; Ka¨lin, ‘Temporary Protection in the EC: Refugee Law, Human Rights and the Temptations of Pragmatism’, German Yearbook of International Law 44 (2001), p. 202–236; Kerber, ‘The Temporary Protection Directive’, EJML 4 (2002), p. 193; Kerber, ‘Temporary Protection in the European Union: A Chronology’, Georgetown Immigration Law Journal 14 (1999), p. 35; Koser/Walsh/Black, ‘Temporary Protection and the Assisted Return of Refugees from the European Union’, IJRL 10 (1998), p. 444; Nascimbene/Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in Italy from North Africa’, EJML 13 (2011), p. 341; Noll/Gunneflo, Directive 2001/55 – Temporary Protection – Synthesis Report, Brussels, 2007 (Odysseus Study on the ‘Conformity Checking of the Transposition by Member States of 10 EC Directives in the Sector of Asylum and Immigration’); Schuck, ‘Refugee Burden- Sharing: A Modest Proposal’, Yale Journal of International Law 22 (1997), p. 243; Tretter (ed.), Temporary Protection fu¨r bosnische Flu¨chtlinge in Europa – La¨nderberichte (Verlag O¨sterreich, 2000). THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular point 2(a) and (b) of Article 63 thereof, Having regard to the proposal from the Commission(1) (1) OJ C 311 E, 31.10.2000, p. 251. 1054 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:10 3B2 9.1.580; Page size: 160.00mm 240.00mm Having regard to the opinion of the European Parliament(2), Having regard to the opinion of the Economic and Social Committee(3), Having regard to the opinion of the Committee of the Regions(4), Whereas: (1) The preparation of a common policy on asylum, including common European arrangements for asylum, is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union. (2) Cases of mass influx of displaced persons who cannot return to their country of origin have become more substantial in Europe in recent years. In these cases it may be necessary to set up exceptional schemes to offer them immediate temporary protection. (3) In the conclusions relating to persons displaced by the conflict in the former Yugoslavia adopted by the Ministers responsible for immigration at their meetings in London on 30 November and 1 December 1992 and Copenhagen on 1 and 2 June 1993, the Member States and the Community institutions expressed their concern at the situation of displaced persons. (4) On 25 September 1995 the Council adopted a Resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(5), and, on 4 March 1996, adopted Decision 96/198/JHA on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(6). (5) The Action Plan of the Council and the Commission of 3 December 1998(7) provides for the rapid adoption, in accordance with the Treaty of Amsterdam, of minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and of measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons. (6) On 27 May 1999 the Council adopted conclusions on displaced persons from Kosovo. These conclusions call on the Commission and the Member States to learn the lessons of their response to the Kosovo crisis in order to establish the measures in accordance with the Treaty. (7) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States. (8) It is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons. (9) Those standards and measures are linked and interdependent for reasons of effectiveness, coherence and solidarity and in order, in particular, to avert the risk of secondary movements. They should therefore be enacted in a single legal instrument. (10) This temporary protection should be compatible with the Member States’ international obligations as regards refugees. In particular, it must not prejudge the (2) Opinion delivered on 13 March 2001 (not yet published in the Official Journal). (3) OJ C 155, 29.5.2001, p. 21. (4) Opinion delivered on 13 June 2001 (not yet published in the Official Journal). (5) OJ C 262, 7.10.1995, p. 1. (6) OJ L 63, 13.3.1996, p. 10. (7) J C 19, 20.1.1999, p. 1. Temporary Protection Directive 2001/55/EC Part D II Skordas 1055 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:11 3B2 9.1.580; Page size: 160.00mm 240.00mm recognition of refugee status pursuant to the Geneva Convention of 28 July 1951 on the status of refugees, as amended by the New York Protocol of 31 January 1967, ratified by all the Member States. (11) The mandate of the United Nations High Commissioner for Refugees regarding refugees and other persons in need of international protection should be respected, and effect should be given to Declaration No 17, annexed to the Final Act to the Treaty of Amsterdam, on Article 63 of the Treaty establishing the European Community which provides that consultations are to be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy. (12) It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for persons enjoying temporary protection in the event of a mass influx of displaced persons. (13) Given the exceptional character of the provisions established by this Directive in order to deal with a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, the protection offered should be of limited duration. (14) The existence of a mass influx of displaced persons should be established by a Council Decision, which should be binding in all Member States in relation to the displaced persons to whom the Decision applies. The conditions for the expiry of the Decision should also be established. (15) The Member States’ obligations as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced persons should be determined. These obligations should be fair and offer an adequate level of protection to those concerned. (16) With respect to the treatment of persons enjoying temporary protection under this Directive, the Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination. (17) Member States should, in concert with the Commission, enforce adequate measures so that the processing of personal data respects the standard of protection of Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(8). (18) Rules should be laid down to govern access to the asylum procedure in the context of temporary protection in the event of a mass influx of displaced persons, in conformity with the Member States’ international obligations and with the Treaty. (19) Provision should be made for principles and measures governing the return to the country of origin and the measures to be taken by Member States in respect of persons whose temporary protection has ended. (20) Provision should be made for a solidarity mechanism intended to contribute to the attainment of a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons in the event of a mass influx. The mechanism should consist of two components. The first is financial and the second concerns the actual reception of persons in the Member States. (21) The implementation of temporary protection should be accompanied by administrative cooperation between the Member States in liaison with the Commission. (22) It is necessary to determine criteria for the exclusion of certain persons from temporary protection in the event of a mass influx of displaced persons. (8) OJ L 281, 23.11.1995, p. 31. AsylumPart D II 1056 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:11 3B2 9.1.580; Page size: 160.00mm 240.00mm (23) Since the objectives of the proposed action, namely to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and measures promoting a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons, cannot be sufficiently attained by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (24) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 27 September 2000, of its wish to take part in the adoption and application of this Directive. (25) Pursuant to Article 1 of the said Protocol, Ireland is not participating in the adoption of this Directive. Consequently and without prejudice to Article 4 of the aforementioned Protocol, the provisions of this Directive do not apply to Ireland. (26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive, and is therefore not bound by it nor subject to its application, HAS ADOPTED THIS DIRECTIVE: CHAPTER I General provisions Article 1 The purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons. Content I. Introductory comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. European Political Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. Treaty of Maastricht . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. Treaty of Amsterdam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. The Kosovo crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 III. Purpose of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 IV. Application of the Directive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. Introductory comments 1Council Directive 2001/55/EC of 20 July 2001 ‘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 Member States in receiving such Temporary Protection Directive 2001/55/EC Art. 1 Part D II Skordas 1057 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:11 3B2 9.1.580; Page size: 160.00mm 240.00mm persons and bearing the consequences thereof’ was the first asylum directive adopted by the Council on the basis of Article 63(2)(a) and (b) TEC [now Article 78(1) and (2)(c) and (g) TFEU].1 The legal basis for the adoption of the provisions on the minimum standards is Article 63 (2)(a) TEC, and for the balance of effort and solidarity Article 63(2)(b) TEC. The Directive forms an integral part of the Common European Asylum System.2 2 Article 1 circumscribes the scope of the Directive, and its terms are specified in other provisions: ‘minimum standards’ in Article 3(5), ‘temporary protection’ in Article 2(a), ‘mass influx’ in Article 2(d), and ‘displaced persons’ in Article 2(c) of the Directive. The ‘balance of effort’ is defined in the preamble,3 and its principles articulated in Article 24–26. 3 There were five main areas of disagreement between the Member States: the duration of the temporary protection, the decision-making procedures (unanimity or qualified majority), access to asylum procedure during the temporary protection, family reunification and solidarity/burden-sharing. 4 The system of the temporary protection has been transposed by the Member States,4 but by the end of 2015 it had not been implemented in any situation of mass influx. 5 The temporary protection is not resettlement, which is defined by the EU as ‘the relocation of refugees, who are recognized by UNHCR as being in need of international protection, from the first country of asylum (mostly in the third world) to another country where they receive permanent protection’.5 Draft Article 23 of the Commission’s proposal linked the issue of resettlement with that of the temporary protection by stipulating that ‘the Member States shall take appropriate measures, in agreement with the persons concerned and in cooperation with the international organisations responsible, to facilitate any resettlement programmes which may be necessary’. However, this provision was deleted due to financial concerns of the Member States.6 6 Though it is often said that temporary protection is not a third form of protection for persons persecuted on political grounds, along with refugee status or subsidiary protection,7 it cannot be denied that the Directive creates a temporary legal status for the protected groups, reflecting rights and benefits on the persons concerned under European law. II. Drafting history 7 The Temporary Protection Directive is the final product of discussions and deliberations between the Member States whose origins can be traced back to the beginning of 1 OJ 2001 L 212/12; Council doc. 10930/01. The TFEU uses the term ‘massive inflow’ instead of ‘mass influx’. Furthermore, Article 78(2)(g) TFEU provides that ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (…) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection’. Article 78(3) TFEU reads: ‘In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.’ 2 Tampere European Council of 15/16 October 1999, Presidency Conclusions, at 16. 3 ‘Provision should be made for a solidarity mechanism intended to contribute to the attainment of a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons in the event of a mass influx. The mechanism should consist of two components. The first is financial and the second concerns the actual reception of persons in the Member States’, see recital 20. 4 On transposition, see generally Noll/Gunneflo, Odysseus Synthesis Report. 5 Commission Staff Working Document, SEC(2009) 1128, p. 2. 6 See Council docs. 11650/00, p. 6 and 13958/00, p. 24. 7 See, for instance, Commission Proposal, COM(2000) 303, p. 3. AsylumPart D II Art. 1 1058 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:11 3B2 9.1.580; Page size: 160.00mm 240.00mm the 1990s, and to the need for management of refugee flows from the former Yugoslavia – initially from Bosnia and Herzegovina, and later, at the end of the 1990s, from Kosovo. There are three different stages in the evolution of temporary protection, depending on the institutional framework of the decisions taken: European Political Cooperation (until 31 October 1993), Treaty of Maastricht (between 1 November 1993 until 30 April 1999), and Treaty of Amsterdam. 1. European Political Cooperation 8The Conclusion of the Meeting of the Immigration Ministers in London (30.11.– 1.12.1992) ‘on people displaced by the conflict in the former Yugoslavia’ underscored that ‘large scale and permanent movements’ outside the former Yugoslavia were likely to strengthen the policies of ethnic cleansing, and that ‘the burden of financing relief activities should be shared more equitably by the international community’. The Ministers were open, in principle, to the idea of giving temporary protection to vulnerable groups ‘in accordance with national possibilities and in the context of a coordinated action by all the Member States’. Relevant protection principles were also contained in the ‘Resolution on certain common guidelines as regards the admission of particularly vulnerable persons from the former Yugoslavia’ agreed at the Copenhagen Meeting of the Ministers of Immigration (1 June 1993),8 but no further common action was taken on this basis. 2. Treaty of Maastricht 9The Treaty of Maastricht9 raised asylum policy into an area of common interest and created new legal bases for action by the Member States in the field of temporary protection (Article K.1, K.3 and K.8). The Council adopted the non-binding Resolution of 25 September 1995 ‘on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’,10 and the Decision 96/198/JHA of 4 March 1996 ‘on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’;11 neither of these acts was applied. Furthermore, the Council agreed on Joint Actions 97/477/JHA of 22 July 199712 and 98/304/JHA of 27 April 1998 ‘concerning the financing of specific projects in favour of displaced persons who have found temporary protection in the Member States and asylum seekers’.13 10Parallel to these acts, the Commission submitted proposals for the establishment of a general legal regime on temporary protection and burden-sharing. On 5 March 1997, the Commission presented a proposal to the Council for a Joint Action based on Article K.3(2(b) ‘concerning temporary protection of displaced persons’.14 On 23 October 1997, the proposal was endorsed, subject to certain amendments, by the European Parliament.15 In response, and taking also into account some early deliberations of the Council, the Commission adopted an amended proposal for a Joint Action ‘concerning 8 See Bunyan, texts no. 36 and 37. 9 Treaty on European Union of 7 February 1992, OJ 1992 C 224/1, entered into force on 1 November 1993. 10 OJ 1995 C 262/1. 11 OJ 1996 L 63/10. 12 OJ 1997 L 205/3. 13 OJ 1998 L 138/6. 14 COM(1997) 93. 15 EU Bulletin, no. 10 (1997), at 1.4.1., OJ 1997 C 339. See also European Parliament (EP), Report of the Committee on Civil Liberties and Internal Affairs of 25 September 1997, A4-0284/97. Temporary Protection Directive 2001/55/EC Art. 1 Part D II Skordas 1059 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:11 3B2 9.1.580; Page size: 160.00mm 240.00mm temporary protection of displaced persons’ and a proposal for a Joint Action ‘concerning solidarity in the admission and residence of beneficiaries of the temporary protection of displaced persons’ on 24 June 1998.16 Subject to new amendments, the EP approved the two proposals of the Commission on 20 November 1998.17 11 At the beginning of 1999, the German Presidency presented some new ideas and principles in order to overcome the deadlock that had appeared on the issue of solidarity in burden-sharing.18 On 1 May the Commission’s proposals lapsed, because the Amsterdam Treaty entered into force, and were withdrawn from the agenda.19 3. Treaty of Amsterdam 12 The Treaty of Amsterdam20 communitarized immigration and refugee law and inserted the relevant competences of the Community in Title IV TEC.21 The Commission resumed its efforts to draft a directive on temporary protection under the new institutional framework, and on 24 May 2000 they submitted a proposal for a Council Directive ‘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 Member States in receiving such persons and bearing the consequences thereof’.22 In the proposal, the Commission integrated its twin 1998 proposals on temporary protection and solidarity into a single legal instrument. Meanwhile, and a few days earlier, France had made some suggestions to the Council on the principles that should govern temporary protection.23 The draft was adopted on 20 June.24 4. The Kosovo crisis 13 During the Kosovo crisis, the Council affirmed that, though in principle protection should be afforded to civilians within the region, it was necessary to provide temporary protection in the Community, due to the growing number of displaced persons.25 The Council adopted a Joint Action on the basis of Article K.3 in order ‘to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo’.26 At the end of May 1999, the JHA Affairs Council formulated the broad principles that should guide the action of the Member States in providing temporary protection, without, however, introducing any scheme binding upon them.27 Therefore, the Member States offered temporary protection in the framework of the UNHCR Humanitarian Evacuation Program, and the experience they 16 COM(1998) 372; see also COM(1998) 372/2. 17 OJ 1998 C 379/375 and C 379/380. See also EP, Report of the Committee on Civil Liberties and Internal Affairs of 3 November 1998, A4-0399/98. 18 Council doc. 5645/99; cf. also Council docs. 5682/1/99 and 7157/99. 19 Commission Communication, COM(2004) 542/3, p. 29. 20 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts of 7 October 1997, OJ 1997 C 340/173, entered into force on 1 May 1999. 21 Hailbronner, CMLR 35 (1998), 1047–1067. 22 COM(2000) 303. 23 Council doc. 8510/00. 24 Council docs. 9540/01; 9540/01; 9541/01. 25 Council doc. 6877/09. 26 Council, Joint Action of the basis of Article K.3 of the Treaty on European Union, establishing projects and measures to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo of 26 April 1999, 1999/290/JHA, OJ 1992 L 114/2. 27 Council doc. 8654/99. AsylumPart D II Art. 1 1060 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:12 3B2 9.1.580; Page size: 160.00mm 240.00mm gained28 would be used for the negotiation and drafting of the Temporary Protection Directive. III. Purpose of the Directive 14The Directive has two main objectives: firstly, it establishes minimum standards for the protection of displaced persons who have been victims of systematic or generalized violations of human rights, or have fled areas of armed conflict or endemic violence, and have arrived in the European Union, and secondly, it promotes the ‘balance of effort’ (solidarity, burden-sharing) between the Member States in receiving these persons. IV. Application of the Directive 15The Directive has never been applied since it entered into force, despite the influx of people from Iraq (2006–2008), North Africa (2011-), and Syria (2012-). In 2011, Italy formally requested the activation of the Directive for the management of the influx from Tunisia, but the Council disagreed on the basis that the conditions for the implementation of the Directive were not fulfilled.29 Over these years, protection was afforded in the Member States to persons who had fled as a result of armed conflict, deterioration of the security situation, or generalized human rights violations, in various forms: for instance, by granting refugee status, subsidiary status, or humanitarian status, or by resettlement or relocation. A variety of municipal law statutes was introduced in Member States with elements of temporary protection, humanitarian protection, and tolerated stay status (Duldung).30 Due to the duration of contemporary conflicts, it can be expected that persons admitted on a temporary basis or who were granted humanitarian status would ultimately resettle or relocate. 16The UK and German response to the Syrian refugee emergency demonstrates the diversity of legal tools used by the Member States outside the area of EU harmonization. The UK introduced the Vulnerable Persons Relocation (VPR) scheme, providing protection to individuals from Syria who are victims of torture and violence, and women and children at risk, or in need of medical attention. The VPR beneficiaries are granted five-year humanitarian protection.31 The Home Office implemented the VPR by issuing a Ministerial Authorization granting entry clearance and enabling the preferential treatment of Syrians under the Equality Act.32 By the end of September 2015, 252 persons had been granted protection under the VPR. On 7 September 2015, the Prime Minister announced that up to 20 000 Syrians would be resettled to the UK from Turkey, Jordan and Lebanon by 2020.33 28 See the measures taken by the individual Member States, Council doc. 11808/99. 29 Nascimbene/Di Pascale, EJML 13 (2011), p. 341, 346-348. 30 EMN, The different national practices, p. 12–3, 61–73, 108–110. 31 Oral Statement to Parliament by Home Secretary on Syrian Refugees, 29 January 2014, in: https:// www.gov.uk/government/speeches/oral-statement-by-the-home-secretary-on-syrian-refugees [last accessed 31 March 2015]; Written Statement to Parliament on Vulnerable Persons Relocation Scheme by Immigration and Security Minister, 25 March 2014, in: https://www.gov.uk/government/speeches/vulnerable-persons-relocation-scheme-for-syrian-nationals [last accessed 31 March 2015]. 32 Equality Act 2010 – Paragraph 17(4) of Schedule 3 to the Equality Act 2010, Ministerial Authorization of 13 March 2014. 33 House of Commons, Syrian Refugees and the UK, Briefing Paper No. 06805, 3 December 2015 (Melanie Gower). Temporary Protection Directive 2001/55/EC Art. 1 Part D II Skordas 1061 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:12 3B2 9.1.580; Page size: 160.00mm 240.00mm 17 In the German practice, which is more closely linked to the Temporary Protection Directive, protection was granted to up to 20,000 Syrian refugees for the duration of the armed conflict by three consecutive decisions (Anordnungen) by the Federal Ministry of Interior of 30 May 2013 (5,000 persons),34 23 December 2013 (5,000 persons),35 and 18 July 2014 (10,000 persons).36 These decisions were further specified and implemented by the La¨nder. The protected persons are given a residence permit for an initial period of two years that can be extended. Three sets of criteria were introduced by the above decisions, which are broader in scope than those adopted by the UK: (i) family relations or other links to Germany, (ii) humanitarian criteria (children, women, medical needs, persecuted religious minorities), and (iii) capacity or skills of the protected individuals to contribute to the reconstruction of their country. 18 The three orders were based on Section 23(2) and (3) in connection with Section 24 of the Residence Act (Aufenthaltsgesetz).37 Under Section 23(2), foreigners may be admitted in the country ‘to safeguard special political interests of the Federal Republic’, whilst under Section 23 (3), Section 24 applies mutatis mutandis. Section 24 regulates the granting of residence for temporary protection on the basis of a resolution of the EU Council according to the Temporary Protection Directive. Paradoxically, the Temporary Protection Directive was among the legal bases of the acts that established the German system of protection of Syrian refugees, even though it was not applied by the EU Council in the above crisis. 19 In 2014, the Commission announced that ‘in order to enhance the preparedness of the Union to handle mass influxes, the existing framework on temporary protection should be evaluated, and if necessary, amended to make it a more practical and flexible instrument’.38 Article 2 For the purposes of this Directive: (a) “temporary protection” means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection; (b) “Geneva Convention” means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967; (c) “displaced persons” means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in 34 https://www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/MigrationIntegration/AsylZuwanderung/aufnahmeanordnung.pdf?__blob=publicationFile [last accessed 31 March 2015]. 35 http://www.uno-fluechtlingshilfe.de/fileadmin/redaktion/PDF/23._Dezember.pdf [last accessed 31 March 2015]. 36 http://www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/MigrationIntegration/AsylZuwanderung/aufnahmeanordnung-3.pdf?__blob=publicationFile [last accessed 31 March 2015]. 37 Gesetz u¨ber den Aufenthalt, die Erwerbsta¨tigkeit und die Integration von Ausla¨ndern im Bundesgebiet i.d.F der Bekanntmachung vom of 25 February 2008 (BGBl I S. 162), gea¨ndert durch Article 1 des Gesetzes vom 28. Oktober 2015 (BGBl I S. 1802). 38 Commission Communication, COM(2014) 154/7. AsylumPart D II Art. 2 1062 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:12 3B2 9.1.580; Page size: 160.00mm 240.00mm safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights; (d) “mass influx” means arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme; (e) “refugees” means third-country nationals or stateless persons within the meaning of Article 1A of the Geneva Convention; (f) “unaccompanied minors” means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States; (g) “residence permit” means any permit or authorisation issued by the authorities of a Member State and taking the form provided for in that State’s legislation, allowing a third country national or a stateless person to reside on its territory; (h) “sponsor” means a third-country national enjoying temporary protection in a Member State in accordance with a decision taken under Article 5 and who wants to be joined by members of his or her family. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Temporary protection (Article 2(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Geneva Convention (Article 2(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Displaced persons (Article 2(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. Mass influx (Article 2(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 5. Refugees and stateless persons (Article 2(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 6. Unaccompanied minors (Article 2(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 7. Residence permit (Article 2(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 8. Sponsor (Article 2 (h)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 I. General remarks 1Article 2 contains definitions of the most important terms of the Directive. It aims to ensure that these terms are interpreted in a harmonised manner by the national legislations and thus helps to apply the Directive consistently in the European legislator’s sense. II. Definitions 1. Temporary protection (Article 2(a)) 2According to the Commission’s proposal, temporary protection was to be activated in case of an actual mass influx, but not in anticipation thereof.39 During the Council’s 39 The initial formulation was the following: ‘temporary protection in the event of a mass influx’ means exceptional measures to provide, in the event of a mass influx of displaced persons from third countries (…)’, COM(2000) 303, p. 29. Temporary Protection Directive 2001/55/EC Art. 2 Part D II Skordas 1063 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:13 3B2 9.1.580; Page size: 160.00mm 240.00mm deliberations, Italy and the Netherlands proposed to add ‘a threat of mass influx’,40 while Germany put forward the term ‘imminent’ mass influx,41 which was accepted by the Member States.42 The mass influx is ‘imminent’ when there is a strong probability that a large number of displaced persons will arrive, but not when there is only a mere possibility, or speculation that this could happen.43 The ‘imminence’ criterion is preferable to the less specific ‘threat’, and indicates the temporal proximity of the expected inflow of persons, enabling the Council to take an informed decision based on facts. 3 A second controversial point arose with regard to the question whether temporary protection should be provided only if there is a risk of malfunctioning of the asylum system of the Member States, or independently of that. Indeed, in case of mass influx the administrative capacities of the receiving country might come under considerable stress and face bottlenecks at least for some time. 4 The Commission’s proposal stipulated that temporary protection should be afforded ‘where there is a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection’.44 Some delegations opposed this concept and asked for this phrase to be deleted,45 while another delegation asked for the phrase to be maintained.46 Under the compromise formula of the final text (‘in particular if there is also a risk that the asylum system will be unable to process this influx’) the absence of pressures upon the asylum system is not an absolute bar to the activation of the temporary protection, but the existence of risk constitutes an additional factor to be taken into account by the European Union. If the system of individual examinations of asylum applications is suspended under circumstances of mass influx, and an accelerated system of refugee recognition is introduced not taking into account individual circumstances, this may be an indication that the asylum system of the Member States cannot properly process the influx. 5 Access to asylum procedures during the temporary protection, and the relationship between temporary protection and asylum seeker status, are dealt with in specific provisions of the Directive (Article 17–19 below). 6 Mass influx as a key element of temporary protection should be distinguished from the situation envisaged by Article 33 Dublin III Regulation (EU) No 604/2013 for the activation of the preventive mechanism of early warning, preparedness and crisis management. This mechanism is to be put in place, if the application of the Dublin system is ‘jeopardised due either to a substantiated risk of particular pressure being placed on a Member State’s asylum system and/or to problems in the functioning of the asylum system of a Member State’ (paragraph 1). The two systems (Dublin, Temporary Protection) are normatively distinct and operate independently from each other. 2. Geneva Convention (Article 2(b)) 7 The term ‘Geneva Convention’ is defined in reference to the Refugee Convention of 28 July 1951. Though temporary protection is not provided only to persons who fulfil the criteria of the Geneva Convention, but to a broader category of individuals, 40 Council doc. 6128/01, p. 3. 41 Council doc. 6914/01, p. 2. 42 Council doc. 7602/01, p. 2. 43 Arenas, EJML 7 (2005), p. 435, 442. 44 COM(2000) 303, p. 29. 45 Council docs. 10209/00, p. 6; 13958/00, p. 3; 6128/01, p. 3. 46 Council docs. 5191/01, p. 3; 6709/01, p. 3. AsylumPart D II Art. 2 1064 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:13 3B2 9.1.580; Page size: 160.00mm 240.00mm reference to the Convention and to the Protocol is necessary, because at least a class of persons eligible for temporary protection can be expected to be also refugees under the above legal instruments. 3. Displaced persons (Article 2(c)) 8‘Displaced persons’ is an inclusive term for all categories of persons who are eligible for international protection under the Directive. Displaced persons are ‘third country nationals’, that are citizens of states which are not EU Members, or stateless persons. 9Displaced persons have not left their country or region voluntarily or in search of a better socio-economic environment, but ‘had to leave’, thus, they were forced to abandon their home or place of residence as a consequence of politically relevant violence. This does not necessarily mean that violent state or non-state actors acted in view of displacement, but it is sufficient that the refugee flows were the indirect consequence of political violence, even if the proximate cause was criminal violence facilitated by the breakdown of order and law enforcement. The condition of ‘compulsory exodus’ is also fulfilled, if the persons concerned left their country or region in response to an appeal of international organisations, even if they were not personally and directly aware of the risks to their life. Similarly, individuals who had left their country or region voluntarily, and stay legally or illegally in the territory of the EU, should enjoy equal treatment with regard to temporary protection with those who fled the country of origin. 10The term ‘displaced persons’ does not only include those who had to leave their countries of citizenship or permanent residence, but it comprises also those individuals who had found provisional refuge in the region, but they had to move later to the territory of the European Union because of either the spill-over of the conflict, or the lack of reception capacity in the region. The Directive protects not only displaced persons coming from a region adjacent to the European Union, but also persons who arrive from more distant territories; in the formulation of the ESC, the Commission’s proposal was not a ‘Balkans Directive’.47 11Displaced persons are eligible for international protection if they are unable to return to their homes in safety. The term ‘safe and durable return’ is used in Article 6(2) in connection with the Council Decision that terminates the temporary protection, whilst Article 21(1) and Article 22 that deal with voluntary and forced return employ the term ‘respect for human dignity’. Though these terms are interconnected because they regulate the legality of return, they differ in that the former indicates the substantive conditions for the legal termination of the temporary protection regime, and the latter refers to the manner in which return is conducted.48 12Displaced persons eligible for international protection may be refugees under Article 1A of the Geneva Convention or under other international or national instruments granting international protection. International protection may be granted under the Asylum Qualification Directive 2011/95/EU, or afforded by national constitutional rules, for instance Article 16a of the Basic Law of Germany.49 The Temporary Protection Directive puts emphasis on two categories of displaced persons: persons who have fled areas of armed conflict or endemic violence, and persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights. 47 ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.2. 48 The relevant terms shall be commented under the respective provisions. 49 Basic Law for the Federal Republic of Germany (Grundgesetz fu¨r die Bundesrepublik Deutschland), 23 May 1949, BGBl., p. 1, as subsequently amended. Temporary Protection Directive 2001/55/EC Art. 2 Part D II Skordas 1065 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:13 3B2 9.1.580; Page size: 160.00mm 240.00mm 13 There hasn’t been any discussion on the meaning of these terms during the deliberations of the various organs of the European Union involved in the drafting of the Directive. This terminology is also different from the one adopted by Article 15 lit.c of the former Qualification Directives 2004/83/EC and the Asylum Qualification Directive 2011/95/EU, which define the beneficiary of subsidiary protection in terms of ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. 14 Despite the drafting history of the Asylum Qualification Directive drawing, at this particular point, on the Temporary Protection Directive, it looks as if the interpretation of the two Directives would be incongruent, not only because of the differences in their actual meaning,50 but also because temporary protection is linked to an emergency response in situations of mass influx, and subsidiary protection to individual international protection status. Nevertheless, following the Elgafaji Judgment of the European Court of Justice (ECJ) and the protection-friendly interpretation of the above Article 15(c),51 it seems that, to some extent, the distinction between the two Directives has been blurred. Moreover, even though their conditions of applicability differ, both Directives are applied on comparable factual situations, affording protection to similar categories of victims. 15 A major difference between the two Directives is that the Temporary Protection Directive is to be interpreted and implemented by the political organs of the European Union that enjoy broad discretionary powers, and the interpretation and application of the Asylum Qualification Directive 2011/95/EU by the Member States is under the judicial control of domestic courts and the ECJ. 16 Considering the meaning of the term ‘displaced persons’ as a concept of Community law, informed by international law but not tied to its definitions, the following principles could be used for the functional interpretation of Article 2(c)(i) and (ii): 17 The concepts of ‘armed conflict’ and ‘endemic violence’ are the two ends of a continuum determining the existence of violence that may induce people to flee an area, territory, or country en masse. International and non-international armed conflicts in the meaning of international humanitarian law always fulfil the condition of the Directive.52 The same happens with endemic violence, which is in a grey area, at the boundaries of armed conflict. Endemic violence exists if the lack of effective law enforcement mechanisms is an entrenched feature of a dysfunctional political system, or of collapsing authority in failed states, or if the legitimate authorities are not capable of exercising the monopoly of force. Endemic violence can be politically motivated, criminal, or hybrid, combining elements of both. Temporary disturbances of public order, including sporadic acts of violence, do not reach the threshold of endemic violence, in the meaning of the Directive, even though they may, under the circumstances, lead to temporary outflow of persons. 18 ‘Systematic’ violations of human rights are qualified by a recurring pattern and presume a sufficient degree of organization and planning. ‘Generalized’ violations have a quantitative and qualitative aspect: they are widespread, and constitute serious breaches of, and intrusions into, the protected sphere of the individuals concerned.53 50 Cf. the decision of the UK Asylum and Immigration Tribunal in the case KH (Article 15(c) Qualification Directive) Iraq v. Secretary of State for the Home Department, CG [2008] UKAIT 00023, 25 March 2008, paras. 65–68., 51 ECJ, Elgafaji, C-465/07, EU:C:2009:94. 52 Obviously under the assumption of the existence of mass influx attributable to the armed conflict. 53 Cf. also the formulation of Article 40 para. 2 of the articles of the International Law Commission (ILC) on State responsibility that the breach by a State of an obligation arising under a peremptory norm AsylumPart D II Art. 2 1066 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:13 3B2 9.1.580; Page size: 160.00mm 240.00mm 19So-called ‘environmental refugees’ are not in principle included in the scope of the Directive. Finland asked for persons who have fled as a result of natural disasters to be added into the definition of displaced persons, but Belgium and Spain objected with the argument that this category of persons were not comprised in the refugee definitions under international law.54 20It remains an open question though whether, depending on the context, the combination of adverse environmental factors with the failure of the state of origin to effectively protect the victims might reach the threshold of human rights violations. 4. Mass influx (Article 2(d)) 21The Commission defined the concept of ‘mass influx’ in terms of the combination of three phenomena. First, the influx should come from the same country or region, therefore ‘the cyclical and cumulative influx of asylum seekers from different countries does not constitute the mass influx triggering the temporary protection regime’. Second, the gradual arrival of displaced persons does not in principle activate the system of the Directive before the inflows increase so that the regular operation of the asylum system comes under stress. Third, the number of displaced persons must be ‘substantial’, but this cannot be quantified in advance.55 This is an assessment to be made by the Council and the Commission exercising their discretionary power.56 22This conceptualization of ‘mass influx’ should be partially revised following the final phrasing of the Directive, because the risk of dysfunctions in the asylum system is not determinative, but merely one of the indicators of the mass influx. Furthermore, the UNHCR contended that the ‘large number of displaced persons’ constituting the mass influx cannot be assessed in absolute numbers, but rather in relation to the resources of the receiving country.57 The inability of the asylum system of a Member State to operate properly for internal reasons, for instance as the result of a structural and longterm economic crisis, is not an indication for an influx in the sense of the Directive, even if there is an increase in the number of arrivals, as long as there is sufficient evidence that the applications could have been processed under a routinely functioning asylum system. Influx of applicants in a single Member State is also not an indicator for a Union-wide mass influx per se, unless this Member State is, due to geographic proximity, the main country of entry of applicants from a specific region. Mass influx of illegal immigrants motivated by a combination of factors involving poverty, instability, and instances of political violence in a variety of countries of the same region,58 is not sufficient to activate the temporary protection, unless some groups can be singled out as displaced persons satisfying the specific conditions of Article 2(c). 23As there is no actual practice on the application of the Temporary Protection Directive, there can only be an attempt of legal construction on how to determine the existence of a mass influx. It appears that the EU organs should take into account a matrix of factors enabling the quantification and qualification of the flows. Inter alia, they should consider the change in absolute numbers over a certain period of time (monthly, semi-annually, annually), the number of Member States affected by the of general international law ‘is serious, if it involves a gross or systematic failure by the responsible State to fulfil the obligation’, UN Doc. A/RES/56/83 of 28 January 2002. 54 See, for instance, Council doc. 6128/01, p. 4. 55 COM(2000) 303, p. 14. 56 Arenas, EJML 7 (2005), p. 435, 446, 449. 57 Council doc. 11620/00, p. 13. 58 Cf. the situation of the mixed migration flows by sea into Southern Europe, Parliamentary Assembly of the Council of Europe, Resolution 1637/2008. Temporary Protection Directive 2001/55/EC Art. 2 Part D II Skordas 1067 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:13 3B2 9.1.580; Page size: 160.00mm 240.00mm arrivals at their borders, the increase, stabilization, or decrease of the flows, and, potentially, the ratio between the number of arrivals, the population of the Member State(s) and their resources. Whilst the scale is a constituent element for the mass influx, the ‘suddenness’ is a main indicator, but not a ‘key ingredient’ of the concept.59 Arguably, the suddenness of the movement is a ‘regulator’ of the scale, as it may justify the existence of ‘mass influx’ in the sense of the Directive by a lower number of individuals seeking protection, compared to situations of slower development of the flows. Thus, the more ‘sudden’ the refugee flow is, the lower the scale of flows can be and, inversely, the slower the development of the flows is, the higher the scale that justifies the determination of mass influx. 24 ‘Arrival in the Community’ means that displaced persons have reached the territory of the Member States, including seaports, airports together with their transit areas, or have entered their territorial sea or contiguous zone. There is no ‘arrival in the Community’ if the displaced persons request territorial or diplomatic asylum in diplomatic representations, or seek temporary protection in military bases of Member States in their home country or region of origin.60 The reason is that the Directive does not deploy any general extraterritorial effect, apart from the specific case of evacuation, and does not grant temporary protection to displaced persons who are generally ‘under the jurisdiction’ of the Member States;61 it only employs the term ‘arrival’ to indicate its territorial scope of application. 25 The proposal of the Commission did not include arrival by evacuation, which was added later upon proposal by Germany and Italy.62 Evacuation has as a purpose to assist internally displaced persons, or persons trapped within the area, country, or region of conflict to arrive in the Union. It can be carried out by individual operators or Member States, or be implemented through coordinated action. 26 Here are some estimates on the scale of refugee flows and the number of persons who sought protection in the EU in the last twenty years, without prejudice to the legal basis of the protection, or to the status of the individuals. During the Bosnian crisis, about 580,000 individuals from the crisis region entered the EU; 90 % of them were admitted in Germany, Sweden and Austria (60 % of the total in Germany).63 As a consequence of the Kosovo crisis, an estimated 800,000 refugees entered Albania, Macedonia, and Montenegro, in 1999, and 90,000 were evacuated in third countries.64 An estimated 58,000 Kosovars were admitted in the EU.65 However, these numbers are burdened with considerable uncertainty.66 59 Contra Durieux/McAdam, IJRL 16 (2004), p. 4, 17. 60 Cf. the decision of the English Court of Appeal in the case The Queen on the Application of Nassar Al-Saadoon v. Secretary of State for Defence, (2009) EWCA Civ 7, in particular para 40 (Lord Justice Laws), according to which the UK did not have jurisdiction or powers to detain, or protect, Iraqi citizens in the military base of Basra, against the will of the government of Iraq, (see however ECtHR, Judgement of 2 March 2010, No. 61498/08, Al-Saadoon and Mufdhi v. the UK, confirming UK jurisdiction in the base). 61 Cf. the wording of Article 1 ECHR: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. This includes extraterritorial jurisdiction under the circumstances determined by the ECtHR. 62 See Council docs. 13958/00, p. 4 and 5191/01, p. 4. Greece and Spain objected on the basis that the Community did not have competence for organized evacuations under Title IV of the Treaty, Council doc. 6128/01, p. 4. 63 Koser/Walsh/Black, IJRL 10 (1998), p. 444, 447. 64 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/1999/779, 12 July 1999, paras. 8–9. 65 Kerber, Georgetown Immigration Law Journal 14 (1999), p. 35, 48. 66 For instance, a table included in Kerber, id., shows that Greece received 5,500 Kosovars during the 1999 crisis, whilst actually this Member State received none: see Council doc. 11808/99 of 21 October AsylumPart D II Art. 2 1068 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:14 3B2 9.1.580; Page size: 160.00mm 240.00mm 27Refugee flows triggered by the armed conflict in Iraq (in particular during the 2006– 2008 period) peaked by the second half of 2007, when the total number of refugees and displaced persons reached 4.2 million, with displacement rates rising to 60,000 persons a month.67 Among them, 2.4 million were displaced within Iraq, whilst 1.5–2 million sought refuge in Jordan and Syria.68 In total, about 196,000 Iraqis applied for asylum in the EU between 2003-August 2013.69 28As a consequence of the insurgencies across North Africa, about 48,000 persons arrived in Italy between January-July 2011,70 under circumstances fulfilling the condition of ‘suddenness’, but not necessarily all the other conditions of the Directive. Between January-July 2014, 87,000 persons arrived in Italy coming mainly from Eritrea and Syria.71 The number of Syrian asylum-seekers in the EU increased dramatically in the period 2012–2014: there were about 24,000 applications in 2012, 50,000 applications in 2013, and 125,000 applications in 2014.72 However, these numbers are limited compared to the extent of the exodus from Syria towards neighbouring states, which reached 3.8 million at the beginning of 2015. More specifically, there were about 1,161,000 refugees in Lebanon, 1,552,000 in Turkey, and 622,000 in Jordan.73 According to EASO ‘Asylum Trends’ for October 2015, the number of asylum applications in the EU reached the one million mark in the first ten months of 2015. Despite the clear case for the existence of mass influx under these circumstances, the Temporary Protection Directive was not activated. 5. Refugees and stateless persons (Article 2(e)) 29The Directive adopts the refugee definition of Article 1(A) of the Geneva Convention and includes also stateless persons. Furthermore, the provision excludes EU nationals from the scope of refugee definition and protection.74 6. Unaccompanied minors (Article 2(f)) 30The concept of the unaccompanied minors was drawn from Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries.75 7. Residence permit (Article 2(g)) 31Concerning the term ‘residence permit’, the Commission’s Explanatory Memorandum reads as follows: 1999, p. 9; similarly UNHCR Kosovo Crisis Update, 5 July 1999, available at: http://reliefweb.int/report/ albania/unhcr-kosovo-crisis-update-5-july-1999 [last accessed 31 March 2015]. 67 Report of the Secretary-General pursuant to paragraph 6 of resolution 1770 (2007), S/2007/608, 15 October 2007, paras. 40–41. 68 Report of the United Nations High Commissioner for Refugees to the UN General Assembly, UN Doc A/63/12, Suppl. No. 12, para. 12. 69 Fandrich, A Comparative Study, p. 4. 70 Nascimbene/Di Pascale, EJML 13 (2011), p. 341, 343, note 5. 71 UNHCR Global Appeal 2015 Update, p. 132. 72 EASO, Latest asylum trends and main countries of origin, December 2014, in: http://easo.europa.eu/ wp-content/uploads/Latest-Asylum-Trends-December-2014.pdf [last accessed 31 March 2015]; Eurostat Asylum Statistics, in: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Countries_of_origin_of_(non-EU)_asylum_seekers_in_the_EU-28_Member_States,_2012_and_2013_YB15.png [last accessed 31 March 2015]. 73 Syrian Refugees – Inter-Agency Regional Update, 18 February 2015, in: http://www.refworld.org/ docid/54e5e8b74.html [last accessed 31 March 2015]. See also Ineli-Ciger, Oxford Monitor of Forced Migration Vol. 4, issue 2 (2014), p. 28–36 on the new Turkish legislation applicable on Syrian refugees. 74 See the Protocol on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam. 75 OJ 1997 C 221/23; see also COM(2000) 303, p. 15. Temporary Protection Directive 2001/55/EC Art. 2 Part D II Skordas 1069 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:14 3B2 9.1.580; Page size: 160.00mm 240.00mm ‘Residence permit is defined in the broadest sense and includes all types of residence permits issued by the Member States, without distinction as to the reason for their issue or the form they take. They must, however, be clear authorisations to reside and not merely documents tolerating the holder’s presence on the country’s territory.’76 8. Sponsor (Article 2 (h)) 32 The concept of the ‘sponsor’ is defined in Article 2 lit. h), and is further employed in Article 15 on family reunification. Article 3 1. Temporary protection shall not prejudge recognition of refugee status under the Geneva Convention. 2. Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement. 3. The establishment, implementation and termination of temporary protection shall be the subject of regular consultations with the Office of the United Nations High Commissioner for Refugees (UNHCR) and other relevant international organisations. 4. This Directive shall not apply to persons who have been accepted under temporary protection schemes prior to its entry into force. 5. This Directive shall not affect the prerogative of the Member States to adopt or retain more favourable conditions for persons covered by temporary protection. Content I. Relationship to refugee status (Article 3(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Respect for human rights, fundamental freedoms and obligations regarding non-refoulement (Article 3(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Consultations with UNHCR and other international organisations (Article 3(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IV. Principle of non-retroactivity (Article 3(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 V. ‘More favourable conditions’ clause (Article 3(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. Relationship to refugee status (Article 3(1)) 1 According to Article 3(1), ‘temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.’ The meaning of the provision is that the temporary protection shall not constitute a derogation from the Geneva Convention.77 Furthermore, the granting or termination of temporary protection shall not be a factor per se with regard to the substantive assessment, whether an individual fulfils the conditions of a refugee under the Geneva Convention. Evidently, if the examination of the application for refugee status is made during the period of validity of the temporary protection, the ongoing conflict in the country of origin may justify a higher ratio of recognition, compared to the ratio following the restoration of peace and the end of temporary protection. 76 COM(2000) 303, p. 15. 77 Id. AsylumPart D II Art. 3 1070 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:14 3B2 9.1.580; Page size: 160.00mm 240.00mm II. Respect for human rights, fundamental freedoms and obligations regarding non-refoulement (Article 3(2)) 2Concerning Article 3(2),the original proposal of the Commission mentioned only the protection of human rights as guaranteed by the ECHR.78 Some delegations disagreed contending either that there were other relevant international instruments as well, such as the Torture Convention and the International Covenant on Civil and Political Rights, or that any such instruments could be included in the preamble.79 The UNHCR and the EP asked for the principles of admission and non-rejection at the border to be mentioned in the Directive,80 but these proposals were not accepted by the Council. After repeated changes to the formulation,81 the final wording was agreed upon.82 III. Consultations with UNHCR and other international organisations (Article 3(3)) 3International organisations, in particular the UNHCR, shall be consulted regularly with regard to the establishment, implementation and termination of temporary protection. ‘Regular consultations’ are more than mere ‘exchange of information’, which was suggested as an alternative formulation by France.83 The preamble of the Directive84 explicitly refers to Declaration 17 of the Final Act of the Treaty of Amsterdam on Article 73k that reads: ‘Consultations shall be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy.’ 4Other ‘relevant international organisations’ with whom the European Union should consult in emergencies include the United Nations, the OSCE, the International Organization for Migration (IOM), and the ICRC. IV. Principle of non-retroactivity (Article 3(4)) 5Article 3(4) refers to the previous protection schemes for Bosnian and Kosovan refugees, and expresses the principle of non-retroactivity of the Directive.85 V. ‘More favourable conditions’ clause (Article 3(5)) 6The ‘more favourable conditions’ clause of Article 3(5) is intimately linked to the ‘minimum standards’ character of the Directive,86 and to the partial and ‘open’ character of the harmonization. Since one of the main objectives of the Directive is ‘to avert the risk of secondary movements’,87 Member States may introduce more favour- 78 Ibid., p. 30. 79 Council docs. 10209/00, p. 8 and 13958/00, p. 6. 80 Council doc. 11620/00, p. 11–13; EP Report A5-0077/2001, OJ 2001 C 343/82, Amendment 9. 81 Council docs. 5191/01, p. 6; 6552/01, p. 4; 6914/01, p. 4. 82 Council doc. 7602/01, p. 4. 83 Council doc. 5191/01, p. 7. 84 See Preamble, recital 11. 85 See also below, Article 5(3)(b). 86 Preamble, recital 12. 87 Preamble, recital 9. Temporary Protection Directive 2001/55/EC Art. 3 Part D II Skordas 1071 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:14 3B2 9.1.580; Page size: 160.00mm 240.00mm able standards under the condition that they do not undermine this objective, and are not inconsistent with any other provision of the Directive.88 The ESC defined the risk of secondary movements as ‘risk of distorting the spontaneous choice of host country’.89 CHAPTER II Duration and implementation of temporary protection Article 4 1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year. 2. Where reasons for temporary protection persist, the Council may decide by 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, to extend that temporary protection by up to one year. Content I. Duration and automatic extension of temporary protection (Article 4(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Extension by decision of the Council (Article 4(2)) . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Duration and automatic extension of temporary protection (Article 4(1)) 1 The duration of the temporary regime has been a matter of controversy among the Member States. In its 1998 proposal, the Commission had suggested five years as the maximum duration of the regime.90 In the 2000 proposal, the Commission reduced the maximum duration of the protection to two years.91 Germany and the ESC asked for a longer time frame, but the Netherlands and Austria wanted a duration not exceeding eighteen months; Ireland and Finland suggested less than a year.92 The compromise solution, as mirrored in the wording of Article 4, was based on a proposal by the Presidency.93 2 Under the terms of Article 4(1), the duration of the temporary protection is one year. If no further action is taken by the Council, that is if it is not terminated under the terms of Article 6(1)(b), it is extended by six-monthly periods for a maximum of one year. The extension is automatic. II. Extension by decision of the Council (Article 4(2)) 3 Extension beyond the two years is only possible if the reasons for the protection persist and there is no fundamental change to the circumstances upon which the initial 88 Cf. the considerations of the Legal Service with regard to the Proposal for the Qualification Directive, Council doc. 14348/02. 89 ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 1.3. 90 COM(1998) 372/2, p. 15. 91 Draft Article 4, COM(2000) 303, p. 31. 92 Council doc. 5191/01, p. 8, 10; ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.13. 93 Council doc. 6709/01, p. 3, 5; cf. also Council doc. 6303/01, p. 1–2. AsylumPart D II Art. 4 1072 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:15 3B2 9.1.580; Page size: 160.00mm 240.00mm decision to introduce temporary protection was based. The extension takes place by further decision of the Council, taken by qualified majority on proposal by the Commission. The Commission cannot ignore the request of a Member State regarding the extension of the protection, and is obliged to examine it. This final extension shall be ‘up to a year’, thus the Council may decide to extend the protection by less, but no more, than one year. Article 5 1. The existence of a mass influx of displaced persons shall be established 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. 2. The Commission proposal shall include at least: (a) a description of the specific groups of persons to whom the temporary protection will apply; (b) the date on which the temporary protection will take effect; (c) an estimation of the scale of the movements of displaced persons. 3. The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least: (a) a description of the specific groups of persons to whom the temporary protection applies; (b) the date on which the temporary protection will take effect; (c) information received from Member States on their reception capacity; (d) information from the Commission, UNHCR and other relevant international organisations. 4. The Council Decision shall be based on: (a) an examination of the situation and the scale of the movements of displaced persons; (b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures; (c) information received from the Member States, the Commission, UNHCR and other relevant international organisations. 5. The European Parliament shall be informed of the Council Decision. Content I. Decision on the existence of a mass influx (Article 5(1) and (2)). . . . . . . . . 1 II. Effect and content of the Council Decision (Article 5(3)) . . . . . . . . . . . . . . . . . . 5 III. Basis for the Council Decision (Article 5(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 IV. Information of the European Parliament (Article 5(5)). . . . . . . . . . . . . . . . . . . . . 17 I. Decision on the existence of a mass influx (Article 5(1) and (2)) 1The existence of a mass influx is legally established by a Council Decision on the basis of a Commission proposal. The adoption of the Decision is an act of political will and the Council possesses here broad discretionary powers. Nevertheless, the failure of the Union to act, when protection ‘cannot be sufficiently attained by the Member Temporary Protection Directive 2001/55/EC Art. 5 Part D II Skordas 1073 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:15 3B2 9.1.580; Page size: 160.00mm 240.00mm States’,94 might lead to violations of international refugee law and human rights law by the Member States. 2 Due to the margin of appreciation the EU organs enjoy, there is no place for a subjective right that temporary protection should be introduced or afforded. This question should be distinguished from the issue of judicial remedies in cases of exclusion of persons from protection, once the existence of the mass influx has been established under Union law.95 3 The Decision of the Council is taken by qualified majority. France, Portugal, Spain and Finland favoured unanimity, inter alia because of the foreign policy implications of the Decision.96 These objections were countered by the Presidency on the ground that the Decision on temporary protection would be taken under time pressure and that, according to the Legal Service of the Council, qualified majority was allowed by the Treaty.97 4 According to Article 5(2)(c), the proposal of the Commission should make a general assessment of the scale of the movements, considering the potential cascade effect due to the activation of the temporary protection.98 II. Effect and content of the Council Decision (Article 5(3)) 5 Even though the Council Decision is ‘binding in its entirety’ on the Member States,99 and has direct effect (‘shall have the effect of introducing…’), the Odysseus study concluded that ‘sole reliance on the direct effect of a Council Decision triggering a Union-wide temporary protection scheme in domestic law is counterproductive’ and suggested that ‘a diligent activation of temporary protection on the domestic level is of outmost importance to avert the risk of secondary movements’.100 6 Article 5(3) determines the content that the Council Decision should include. According to Article 5(3)(a), the Decision shall comprehend a description of the specific groups of persons to whom the temporary protection applies. The Directive introduces here the principle of selectivity, in the sense that the Council shall determine the protected groups in terms of identity, including, under the circumstances, ethnicity, religion, or language. It can be expected that the Council would make this determination on the basis of actual or emerging patterns of persecution (see Article 2(c)(ii)). For persons displaced as a consequence of endemic violence or armed conflict, the determination would not be necessarily made with reference to persecution, though this depends on the circumstances of the crisis.101 From the moment the Decision takes effect, deportation proceedings against members of the protected groups towards the country or region of origin of the mass influx shall be suspended. Though this is not included in the Directive, it is the logical consequence of extending protection to specific groups of displaced persons. 7 The original proposal of the Commission included draft Article 15 (subsequently renumbered as draft Article 7A) stating that the Member States should implement their obligations without discrimination between persons enjoying temporary protection. 94 See recital 23, principle of subsidiarity. 95 See also MN 9 in this article, and Article 29, below. 96 Council docs. 10209/00, p. 3; 13958/00, p. 9 and 6128/01, p. 9. 97 Council doc. 6303/01, p. 2. 98 For the interpretation of Article 5(2)(a) and (b), cf. the similar concepts of Article 5(3)(a) and (b) respectively, below, II. 99 See Article 249 TEC (now Article 288 TFEU). 100 Noll/Gunneflo, Odysseus Synthesis Report, p. 16. 101 See Article 2(c)(i). AsylumPart D II Art. 5 1074 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:15 3B2 9.1.580; Page size: 160.00mm 240.00mm This provision faced strong objections by the majority of the Member States with three main arguments: first, that human rights principles were invoked in other provisions of the draft, second, that the principle of non-discrimination could be placed in the preamble, and third, that the legal consequences of a provision with that content were unknown.102 Finally, non-discrimination was placed in recital 16. 8The UNHCR underscored the risk of discrimination between those displaced persons arriving spontaneously at the borders of the European Union and those admitted under evacuation schemes.103 Similarly, the Committee of the Regions (CoR) sharply criticized the selection practices of the Member States in Macedonia during the Kosovo crisis.104 Such objections are unjustified, if it is considered that temporary protection in the Union can be expected to cover only a fraction of the persons in need, thus selection criteria may be necessary. The UK and German practice on the protection of Syrian refugees clearly demonstrates that these criteria depend on the domestic values and legitimate objectives of the host state (see above Article 1). 9The UK argued that Member States should be able to deny temporary protection to persons who inaccurately claim that they belong to the protected group. The Commission responded that this topic was relevant to the exclusion clause,105 but it overlooked the fundamental difference between checking whether a displaced person falls within the scope of the Council Decision, and excluding a person belonging to the group for the specific reasons of the exclusion clause. Germany later proposed a further subparagraph on ‘modalities concerning border crossings, transit and identification of the displaced persons to be admitted’.106 Although neither proposal was accepted, Member States should have the inherent power to check and identify the persons who enter into their territories, as well as their membership to the protected groups (see also below Article 28), unless there is a situation of force majeure which does not enable the orderly admission of displaced persons in the host country. 10According to Article 5(3)(b), the Decision shall also determine the date on which the temporary protection will take effect. The date will signify the activation of the obligations of the Member States vis-a`-vis the Union, even if individual Member States would have already provided temporary protection. It introduces the principle of nonretroactivity of the Decision. 11The Decision shall further include the information received from the Member States on their reception capacity, cf. Article 5(3)(c). The 1995 Council Resolution ‘on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’ provided that burden-sharing should be assessed taking into account the contribution of each Member State to the prevention or resolution of the crisis, its participation in the UN and OSCE missions, its supply of military resources and humanitarian assistance, and all other political, social and economic factors affecting the capacity of the Member State.107 The system of temporary protection under the Directive does not take any of these factors into consideration, but is based on the reception capacity of the Member States, as communicated to the Council.108 12The EP proposed to include ‘the criteria to be applied for the purposes of a balanced allocation between Member States of persons enjoying temporary protection’ in the 102 Council docs. 13958/00, p. 19; 5191/01, p. 19; 6128/01, p. 12; 6914/01, p. 8 and 7602/01, p. 8. 103 Council doc. 11620/00, p. 5. 104 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 21.2. 105 Council doc. 13958/00, p. 9. 106 Council doc. 6914/01, p. 6. 107 OJ 1995 C 262/1, at 4. 108 See Article 24, MN 2, and Article 25, below. Temporary Protection Directive 2001/55/EC Art. 5 Part D II Skordas 1075 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:16 3B2 9.1.580; Page size: 160.00mm 240.00mm Council Decision under Article 5.109 This was not accepted, and no specific numbers of displaced persons are allocated in each Member State by the Decision.110 13 Information from the Commission, UNHCR and other relevant international organisations shall be included in the Council Decision pursuant to Article 5(3)(d). The obligation to hold regular consultations with the UNHCR and other relevant international organizations under Article 3(3) should be distinguished from the use of information from the UNHCR under Article 5(3) as an element of the Decision of the Council. III. Basis for the Council Decision (Article 5(4)) 14 Article 5(4)(a) determines that the Council Decision is to be based on ‘an examination of the situation and the scale of the movement of displaced persons’. This is a factual assessment of the situation regarding the magnitude of the population movements, including the exodus from the country or region of origin and the mass influx in the EU. 15 The Council Decision shall further make an assessment of the advisability of establishing temporary protection, cf. Article 5(4)(b). The advisability circumscribes the appropriateness of the action, considering in particular the alternative of providing aid in the country or region of origin, or its inadequacy. The EP suggested inserting also the element of ‘necessity’,111 but this was not approved by the Member States that dispelled any notion that they might incur an obligation to establish temporary protection under any circumstances. 16 According to Article 5(4)(c), the Council shall also take into account information received from the Member States, the Commission and international organisations, in particular UNHCR. IV. Information of the European Parliament (Article 5(5)) 17 According to Article 5(5), the EP shall be informed, but shall not be otherwise involved in the adoption or implementation of the Council Decision. Article 6 1. Temporary protection shall come to an end: (a) when the maximum duration has been reached; or (b) at any time, by 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. 2. The Council Decision shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament shall be informed of the Council Decision. 109 EP A5-0077/2001, OJ 2001 C 343/82, Amendment 11. 110 So also Kerber, EJML 4 (2002), p. 193, 199. 111 EP A5-0077/2001, OJ 2001 C 343/82 Amendment 12. AsylumPart D II Art. 6 1076 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:16 3B2 9.1.580; Page size: 160.00mm 240.00mm Content I. End of temporary protection (Article 6(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Basis for the Council Decision (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. End of temporary protection (Article 6(1)) 1Pursuant to Article 6(1)(a) and b), temporary protection shall end, when the maximum duration has been reached, or at any time by a Council Decision. The maximum duration is reached when the two- or three-year period has come to an end, according to Article 4(1) or Article 4(2) respectively. The Council Decision, terminating the temporary protection, can be taken at any time before the initial two year-period has been completed. It can also be taken at any time during the period of validity of the Council Decision prolonging the duration of the temporary protection regime for up to a year. The Council Decision, bringing temporary protection to an end, shall be adopted by qualified majority, cf. Article 6(1)(b). Portugal had asked for the Council Decision to be also adopted by unanimity,112 but the proposal was not accepted. A Member State cannot declare the end of temporary protection as long as the EU protection system is still in force. Furthermore, it cannot maintain the EU protection system after it has been terminated, because this would create secondary movements. Member States may authorize some displaced persons to remain in their territory (see below Article 22), or resettle them, after the EU system has come to an end, or apply any other national temporary protection scheme. II. Basis for the Council Decision (Article 6(2)) 2According to Article 6(2), the Council Decision shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament shall be informed of the Council Decision, but shall not be otherwise involved in the deliberations of the Council. 3The proposal of the Commission used the terms ‘long-term, safe and dignified return’, and mentioned Article 33 of the Geneva Convention and the ECHR.113 The term ‘dignified’ was criticized as unclear, and the inclusion of Article 33 was considered as potentially foreshadowing the interference of the judiciary in a political decision.114 4Despite the change of the wording, the Explanatory Memorandum of the Commission is useful for the interpretation of the ‘safe and durable return’ concept. The Commission stressed that displaced persons ‘must be able to return in safety and dignity in a stable context and in conditions where their life or freedom would not be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion and where they would not be subjected to torture or to inhumane or degrading treatment or punishment.’ Further, the Memorandum highlighted the role of the peace and reconstruction process, and of conditions that guarantee respect for human rights and fundamental freedoms.115 112 See for instance, Council doc. 6128/01, p. 10. 113 Draft Article 6, COM(2000) 303, p. 32. 114 Council doc. 5191/01, p. 11. 115 COM(2000) 303, p. 16. Temporary Protection Directive 2001/55/EC Art. 6 Part D II Skordas 1077 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:16 3B2 9.1.580; Page size: 160.00mm 240.00mm 5 The UNHCR emphasized that, by the termination of the temporary protection, the European Union should assess whether sufficient guarantees for the physical safety, legal security and respect for basic rights exist in practice.116 Article 7 1. Member States may extend temporary protection as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and the Commission immediately. 2. The provisions of Articles 24, 25 and 26 shall not apply to the use of the possibility referred to in paragraph 1, with the exception of the structural support included in the European Refugee Fund set up by Decision 2000/596/EC(9), under the conditions laid down in that Decision. Content I. Extension of temporary protection ratione personae by the Member States (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Non-application of solidarity rules (Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Extension of temporary protection ratione personae by the Member States (Article 7(1)) 1 According to Article 7(1), Member States may extend temporary protection as provided for in the Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies. This is a genuine ‘may’ clause and mirrors the ‘minimum standards’ nature of the Directive. 2 Extension of the temporary protection, which has been introduced by Council Decision, on additional categories of displaced persons, is possible, but only if they are displaced for the same reasons and from the same country or region of origin. As the Odysseus study stressed, if temporary protection under the Directive was extended unilaterally beyond its scope ratione personae, and outside the limits of Article 7, it would be inconsistent with the above provision and would risk creating secondary movements, in particular in view of the family reunification provisions.117 II. Non-application of solidarity rules (Article 7(2)) 3 The solidarity provisions of Article 24, 25 and 26 are not applicable to the use of the possibility referred to in Article 7(1), with the exception of the structural support included in the European Refugee Fund set up by Decision 2000/596/EC. 4 Some delegations opposed solidarity in Article 7 situations, and asked for the related issues to be regulated exclusively by domestic law,118 so that the Member State concerned 116 UNHCR, Annotated Comments on Council Directive 2001/55/EC, 19 May 2003, p. 9, available at: http://www.unhcr.org/refworld/docid/3ecdeebc4.html [last accessed 31 March 2015]. (9) OJ 2000 L 252, p. 12. 117 Noll/Gunneflo, Odysseus Synthesis Report, p. 27. Cf. also the standpoints of some delegations, Council doc. 13958/00, p. 11. 118 See, for instance, Council doc. 5191/01, p. 11. AsylumPart D II Art. 7 1078 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:16 3B2 9.1.580; Page size: 160.00mm 240.00mm bears the burden of the extension of temporary protection. Indeed, the solidarity provisions of Chapter VI of the Directive (Article 24–26) are not applicable in the extended protection of Article 7(1), with the exception of structural support included in the ERF, and no relocation of these persons in other Member States is possible. CHAPTER III Obligations of the Member States towards persons enjoying temporary protection Article 8 1. The Member States shall adopt the necessary measures to provide persons enjoying temporary protection with residence permits for the entire duration of the protection. Documents or other equivalent evidence shall be issued for that purpose. 2. Whatever the period of validity of the residence permits referred to in paragraph 1, the treatment granted by the Member States to persons enjoying temporary protection may not be less favourable than that set out in Articles 9 to 16. 3. The Member States shall, if necessary, provide persons to be admitted to their territory for the purposes of temporary protection with every facility for obtaining the necessary visas, including transit visas. Formalities must be reduced to a minimum because of the urgency of the situation. Visas should be free of charge or their cost reduced to a minimum. Content I. Residence permits (Article 8(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Visas (Article 8(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. Residence permits (Article 8(1) and (2)) 1Pursuant to Article 8(1), Member States are obliged to issue residence permits for persons under a temporary protection scheme. For the definition of the residence permits, see above, Article 2(g). 2The Directive does not determine the precise period of validity of the residence permits, and it is up to the Member States to adopt the relevant rules.119 The provision makes clear that whatever the period of validity, displaced persons enjoying temporary protection in any Member State should be granted at least the treatment provided for in Articles 9–16. 3These provisions introduce obligations of the Member States, but they do not correspond necessarily to subjective rights under the Directive, with the exception of the Article 29 cases, and of the ‘right’ to a voluntary return in Article 21(3). 4Other than in the Asylum Reception Conditions Directive 2013/33/EU, the Temporary Protection Directive does not include any provisions on confinement or detention of displaced persons. Nevertheless, other than the above Directive, it does not contain any provision on the freedom of movement in the host Member State, either, and was criticized by the UNHCR for this omission.120 The EP suggested an amendment permitting in principle the free movement in the Union, which was not accepted by the Council.121 119 COM(2000) 303, p. 8. 120 UNHCR, Annotated Comments on Council Directive 2001/55/EC, p. 9. 121 EP A5-0077/2001, O.J. C 343/82 (2001), Amendment 37. Temporary Protection Directive 2001/55/EC Art. 8 Part D II Skordas 1079 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:17 3B2 9.1.580; Page size: 160.00mm 240.00mm 5 It is noteworthy that the issue of the freedom of movement in situations of mass influx of displaced persons, or of persons fleeing as a consequence of a natural catastrophe, had been raised during the travaux pre´paratoires of the Geneva Convention. A general understanding had been reached that the freedom of movement was not applicable in these situations, and restrictions could be applied, at least for reasons of health.122 6 As a matter of principle, practices disproportionally restricting the freedom of movement of displaced persons in the host country are incompatible with contemporary human rights standards. II. Visas (Article 8(3)) 7 There was no disagreement among the Member States with regard to visa facilitation. The main controversial issue was whether visas would be given to persons eligible for international protection free of charge or not. While the proposal of the Commission had adopted the first alternative,123 and was supported by Germany,124 France disagreed, arguing that under her domestic law visas were free only for poverty-related, but not for urgency-related reasons.125 Furthermore, the UNHCR and the EP were in favour of abolishing visa requirements altogether, and against the application of carrier sanctions in the circumstances of the Directive.126 The final sentence of Article 8(3) reflects the compromise between the Member State, which gives each State the discretion either to impose a minimum fee or to grant visas free of charge. Article 9 The Member States shall provide persons enjoying temporary protection with a document, in a language likely to be understood by them, in which the provisions relating to temporary protection and which are relevant to them are clearly set out. 1 Articles 9–16 specify the treatment persons enjoying temporary protection in any Member State should be granted. Article 9 determines that Member States must inform persons enjoying temporary protection about the provisions relating to temporary protection. 2 The initial proposal of the Commission, which required a translation in the official languages of the country of origin and of the host country, was amended, upon proposal of France: the document shall be written in a language likely to be understood by the persons enjoying temporary protection, which may be different from the official language of their home country.127 Article 10 To enable the effective application of the Council Decision referred to in Article 5, Member States shall register the personal data referred to in Annex II, point (a), with respect to the persons enjoying temporary protection on their territory. 122 Ad hoc Committee on Refugees and Stateless Persons, Second Session, E/AC.32/SR.42, p. 35–36. 123 Second sentence of draft Article 8(3) COM(2000) 303, p. 32. 124 Council doc. 6914/01, p. 9. 125 Council doc. 13958/00, p. 12. 126 Council doc. 11620/00, p. 12–13; EP A5-0077/2001, OJ 2001 C 343/82, Amendment 20. 127 Draft Article 9, COM(2000) 303, p. 32; Council doc. 13958, p. 13. AsylumPart D II Art. 10 1080 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:17 3B2 9.1.580; Page size: 160.00mm 240.00mm 1The issues laid down in Article 10 were not addressed in the initial proposal of the Commission, and the provision on the registration of the beneficiaries of temporary protection and the creation of a database was added later upon proposal of Germany.128 At the same time, Germany and the Netherlands wanted to make sure that the data protection rules of Community law129 would not complicate the implementation of the present Directive. Reference to the protection of personal data was finally made in the preamble.130 In a statement entered into its minutes, the Council requested the Commission ‘to undertake a study as to the need for the adoption of additional common measures on the processing of personal data referred to in this Directive (…)’.131 Article 11 A Member State shall take back a person enjoying temporary protection on its territory, if the said person remains on, or, seeks to enter without authorisation onto, the territory of another Member State during the period covered by the Council Decision referred to in Article 5. Member States may, on the basis of a bilateral agreement, decide that this Article should not apply. 1The Commission’s proposal did not contain any provision on readmission, but stipulated that existing rules would apply until the question of free movement of third country nationals in the European Union would be regulated.132 When current Article 11 was inserted in the draft, Italy objected considering readmission to be a matter of cooperation between Member States and not a matter of legal obligation.133 If a beneficiary of temporary protection seeks to enter into, or finds him- or herself illegally in another Member State, the Member State which has given temporary protection has a legal obligation to readmit the person concerned, unless there is a bilateral agreement between the two Member States to disapply the above provision. Article 12 The Member States shall authorise, for a period not exceeding that of temporary protection, persons enjoying temporary protection to engage in employed or selfemployed activities, subject to rules applicable to the profession, as well as in activities such as educational opportunities for adults, vocational training and practical workplace experience. For reasons of labour market policies, Member States may give priority to EU citizens and citizens of States bound by the Agreement on the European Economic Area and also to legally resident third-country nationals who receive unemployment benefit. The general law in force in the Member States applicable to remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment shall apply. 128 Council docs. 13958/00, p. 13; 5191/01, p. 13. 129 Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281/31); Council doc. 7964/01, p. 4. 130 Recital 17. 131 Council doc. 9540/01 ADD 1, p. 1. 132 COM(2000) 303, p. 9. 133 Council docs. 6128/01, p. 22 and 7602/01, p. 9. Temporary Protection Directive 2001/55/EC Art. 12 Part D II Skordas 1081 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:17 3B2 9.1.580; Page size: 160.00mm 240.00mm Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Legal basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Drafting history 1 The initial proposal of the Commission was rather generous to persons enjoying temporary protection and granted them equal treatment with refugees with regard to employed or self-employed activities, remuneration, social security and other conditions of employment.134 The CoR and certain Member States objected and recommended instead either equal treatment with aliens (France, the Netherlands, Portugal, Finland), or with asylum seekers (Belgium, Greece, Luxembourg and the Netherlands, changing its previous position), including authorization of work on a case-by-case basis (Austria, which also supported equal treatment with asylum seekers). Spain considered work as ‘impractical’ given the temporary nature of the protection, but was open to access to the labour market for displaced persons who had arrived by organized evacuations.135 The Netherlands proposed access to work after an initial six-month stay in the Union.136 II. Legal basis 2 The Legal Service created another major obstacle by concluding that the Community lacked competence to regulate access to, and conditions of, employment under Article 63 TEC (now Article 78 TFEU), and advised the Commission to present a separate proposal under Article 137 TEC (now Article 153 TFEU).137 However, the Council rejected the Opinion and proceeded with the adoption of the Directive. Germany and Austria made a statement that entered the Council minutes that the two countries ‘agree to Article 12 on condition that the EC has regulatory jurisdiction over the access of persons enjoying temporary protection to the labour market’.138 III. Discretion 3 Overruling the objections of the Commission,139 the Council created a rather restrictive system that discriminates against persons enjoying temporary protection in favour of EU and EEA nationals, certain third country nationals, and refugees.140 This system finds a certain justification in the limited time the beneficiaries are expected to stay in the European Union under the rules of the Directive. Though Article 12 formally introduces an obligation for the Member States to authorize employed or self-employed activities (‘shall’), it gives states wide discretion to limit access to the labour market in favour of EU and EEA citizens and to legally resident third-country nationals who receive unemployment benefits. Persons who enjoy temporary protection and engage in 134 Draft Article 10 and Explanatory Memorandum, COM(2000) 303, p. 17, 33. 135 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 14.2, Council docs. 13958/00, p. 13 and 5191/01, p. 13. 136 Council doc. 6128/01, p. 14. 137 Council docs. 6736/01 and COR 1–3. 138 Council doc. 9540/01 ADD 1, p. 1. 139 Council doc. 8964/01, p. 13. 140 Cf. UNHCR, Annotated Comments on Council Directive 2001/55/EC, p. 11. AsylumPart D II Art. 12 1082 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:18 3B2 9.1.580; Page size: 160.00mm 240.00mm the above activities have to comply with the rules of domestic law that regulate the exercise of the profession. For remuneration, access to social security systems relating to the employment, and other conditions of employment, the ‘general law’ in force applies, which should be interpreted to mean ‘national treatment’. Article 13 1. The Member States shall ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing. 2. The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care. Without prejudice to paragraph 4, the assistance necessary for medical care shall include at least emergency care and essential treatment of illness. 3. Where persons enjoying temporary protection are engaged in employed or selfemployed activities, account shall be taken, when fixing the proposed level of aid, of their ability to meet their own needs. 4. The Member States shall provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence. Content I. Access to accommodation (Article 13(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Social welfare and medical care (Article 13(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Fixing the level of aid (Article 13(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 IV. Assistance for persons with special needs (Article 13(4)) . . . . . . . . . . . . . . . . . . 5 I. Access to accommodation (Article 13(1)) 1Member States are expected either to afford accommodation directly to persons enjoying temporary protection, or offer them the financial means to obtain housing. ‘Suitable accommodation’ may take the form of accommodation centres, or other collective structures, or flats.141 II. Social welfare and medical care (Article 13(2)) 2The standard of ‘suitability’ cannot be determined in abstract and Member States enjoy a broad, but not unlimited, discretion.142 The implementation of the provision depends on the size of the families, the age and gender of the persons concerned. 3The ‘necessary’ assistance is financial or is offered in kind; it is provided to persons enjoying temporary protection if they do not have sufficient resources. The term ‘financial support necessary for medical care’ of the Commission’s proposal143 was replaced by the term ‘assistance necessary for medical care’. 141 COM(2000) 303, p. 18. 142 Cf. the suggestion of Ireland, considering that the matter ‘should be left to the discretion of the national authorities’, Council doc. 13958/00, p. 14. 143 Draft Article 11(2), COM(2000) 303, p. 33. Temporary Protection Directive 2001/55/EC Art. 13 Part D II Skordas 1083 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:18 3B2 9.1.580; Page size: 160.00mm 240.00mm III. Fixing the level of aid (Article 13(3)) 4 The meaning of the third paragraph is that when national authorities fix the level of aid to persons enjoying temporary protection, they should consider their income from employed or self-employed activities. Therefore, aid should not be fixed on the same level for all, but should depend on the needs of the individuals concerned. IV. Assistance for persons with special needs (Article 13(4)) 5 Article 13(4) provides for differentiated treatment of vulnerable groups. To mention is that the original formulation of ‘appropriate’ medical or other assistance was replaced with ‘necessary’. Article 14 1. The Member States shall grant to persons under 18 years of age enjoying temporary protection access to the education system under the same conditions as nationals of the host Member State The Member States may stipulate that such access must be confined to the state education system. 2. The Member States may allow adults enjoying temporary protection access to the general education system. Content I. Access to education for minors (Article 14(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Access to education for adults (Article 14(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Access to education for minors (Article 14(1)) 1 Article 14(1) introduces a mandatory rule on the national treatment of this category of protected persons with regard to access to education. The Commission’s proposal did not harmonize the meaning of ‘minority’, which depended on the domestic law of each Member State,144 but was subsequently amended as above. ‘Access to the education system’ includes primary, secondary and higher education, as long as the age limit permits. Member States have the discretion to restrict the benefit to the state education system. II. Access to education for adults (Article 14(2)) 2 Initially, Article 14(2) was also mandatory, but it was subsequently amended into optional. The original proposal encompassed, besides general education, also ‘vocational training, further training and retraining’,145 which were later removed as related to employment and integrated in Article 12.146 144 Draft Article 12(1), ibid. 145 Draft Article 12(2), ibid. 146 Cf. the proposal of Austria using the term ‘apprenticeship’, Council doc. 13958/00, p. 15. AsylumPart D II Art. 14 1084 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:18 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 15 1. For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx, the following persons shall be considered to be part of a family: (a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted; (b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time. 2. In cases where the separate family members enjoy temporary protection in different Member States, Member States shall reunite family members where they are satisfied that the family members fall under the description of paragraph 1(a), taking into account the wish of the said family members. Member States may reunite family members where they are satisfied that the family members fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship they would face if the reunification did not take place. 3. Where the sponsor enjoys temporary protection in one Member State and one or some family members are not yet in a Member State, the Member State where the sponsor enjoys temporary protection shall reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(a). The Member State may reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place. 4. When applying this Article, the Member States shall taken into consideration the best interests of the child. 5. The Member States concerned shall decide, taking account of Articles 25 and 26, in which Member State the reunification shall take place. 6. Reunited family members shall be granted residence permits under temporary protection. Documents or other equivalent evidence shall be issued for that purpose. Transfers of family members onto the territory of another Member State for the purposes of reunification under paragraph 2, shall result in the withdrawal of the residence permits issued, and the termination of the obligations towards the persons concerned relating to temporary protection, in the Member State of departure. 7. The practical implementation of this Article may involve cooperation with the international organisations concerned. 8. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person receiving temporary protection which is needed to process a matter under this Article. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Definition of family (Article 15(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. General conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Temporary Protection Directive 2001/55/EC Art. 15 Part D II Skordas 1085 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:19 3B2 9.1.580; Page size: 160.00mm 240.00mm 2. Nuclear family (Article 15(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. Extended family (Article 15(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. Separate family members in different Member States (Article 15(2)). . . . 9 IV. Family members outside the EU territory (Article 15(3)) . . . . . . . . . . . . . . . . . 13 V. Consideration of child interests (Article 15(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VI. Place of reunification (Article 15(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 VII. Residence permits of family members (Article 15(6)) . . . . . . . . . . . . . . . . . . . . . . 18 I. Drafting history 1 The Member States and the Commission had difficulties in defining both the protected unit (nuclear or extended family), as well as themain coordinates of family reunification under the particular conditions of temporary protection. The Commission had proposed a liberal system based on a broad and ‘functional’ conceptualization of family, tailored to the situation of displacement, while most Member States preferred a more limited scope of protection, with discretion of the Member States in cases of more distant relatives.147 Family reunification is a right that can give rise to legal challenge under Article 29. II. Definition of family (Article 15(1)) 1. General conditions 2 Families having the right of reunification are only those that existed in the country of origin before the displacement. Families established after the persons concerned had crossed the borders of the home state are not protected under the Directive. Furthermore, there should be a causal link between the physical separation and the circumstances surrounding the mass influx. These circumstances are not limited to the displacement itself, but extend also to the armed conflict, endemic violence, or human rights violations at a time in which the members of the family had not yet left the country. If the spouses or unmarried partners had already separated for personal reasons in the home country, there should be in principle no case for reunification. The concept of family in this Directive is distinct from the definitions in the Family Reunification Directive 2003/86/EC and Asylum Qualification Directive 2011/95/EU.148 2. Nuclear family (Article 15(1)(a)) 3 This provision gives the definition of the nuclear family. With regard to children, the Commission’s proposal did not refer to the minor unmarried children, but to the unmarried and dependent children, without regard to their age. The Commission’s definition was broader than the one adopted by the Council.149 4 Unmarried couples can invoke the right to reunification only if aliens law or practice in the Member State treats married and unmarried couples in a comparable manner. Therefore, differences in the treatment between Member States still remain in this area, which was not harmonized by the Directive. Minor children are protected without regard to whether they have been born in or out of wedlock, or adopted. 147 See draft Article 13, COM(2000) 303, p. 33–34, and Council docs. 10209/00, p. 4; 13958/00, p. 16; 5191/01, p. 16–17; 6128/01, p. 17–18; 7602/01, p. 11–12. 148 Family Reunification Directive 2003/86/EC, Article 2(f), p. 9–12; Asylum Qualification Directive 2004/83/EC, Article 2(h), 23. 149 Draft Article 13(1)(b), COM(2000) 303, p. 34. The term ‘dependent’ in the Commission’s proposal covered apparently all unmarried minors; if the children were not minors, but unmarried, only those who were ‘objectively unable to meet their own needs or because of their state of health’, ibid., p. 19. AsylumPart D II Art. 15 1086 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:19 3B2 9.1.580; Page size: 160.00mm 240.00mm 5For the concept of the ‘sponsor’, see Article 2(h). 3. Extended family (Article 15(1)(b)) 6The Directive takes a different approach in respect to the extended family in comparison to the Family Reunification Directive 2003/86/EC, giving the preference to a more functional approach in the definition of the protected persons instead of their precise enumeration. The protected persons are ‘other close relatives’ distinct from the core family under lit. a). The concept of ‘close relatives’ obviously excludes third persons, for example servants, who cohabit with the members of the family, even if they have developed a strong personal bond with them. 7Close relatives must have ‘lived together as part of the family unit’ in order to be within the scope of the provision. The terms ‘lived together’ and ‘unit’ describes family not as an exclusively legal institution, but also as the social institution of ‘household’ with potentially fluid external boundaries. The close relatives should have been individually dependant on the sponsor at the time of the existence of the family unit. Thus, close relatives who had settled on the same land or shared the same building structure but, in fact, lived independently from each other, cannot invoke family reunification. 8The family unit should have existed not merely at the time of the displacement, but at the time of the events ‘leading to’ the mass influx; therefore, the ‘unit’ should not have been created under the pressure of the displacement itself. III. Separate family members in different Member States (Article 15(2)) 9Article 14(2) regulates issues relevant to family reunification if the family members find themselves in different Member States, while Article 15(3) deals with situations in which the sponsor enjoys protection in the Union, but other members of the family have not arrived in a Member State yet. The first sentence of Article 15(2) introduces a right to reunification of nuclear family, and the second sentence establishes the discretion of the Member State for the reunification of members of the extended family. In the Commission’s proposal, in both cases the Member States had the obligation to reunite families, without distinction between nuclear and extended family.150 10The Member States act in view of the family reunification ‘where they are satisfied’ that the conditions of Article 15(1)(a) or (b) are fulfilled. The Commission’s proposal clarified that the absence of documentation was not an obstacle in itself and underscored that Member States should take account of facts, circumstances, evidence, and credibility of statements submitted.151 Unfortunately, these brief guidelines were removed from the final text, with the consequence that Member States can evaluate the existing evidence without any common ‘minimum standards’. 11Member States should decide on the reunification of the nuclear family ‘taking into account the wish of the said family members’. The need to verify the clear consent of the other members of the family, as was formulated in the Commission’s proposal,152 was thus substantially watered down, and appears as one factor among others. Nonetheless, reunification of family members, in particular of women, against their will would violate basic human rights standards. 150 Draft Article 13(1), COM(2000) 303, p. 33–34. 151 Draft Article 13(4), ibid., p. 34. 152 ‘The Member States shall establish that the various members of the family agree to this reunification’, second sentence of the second paragraph draft Article 13(5), ibid. Temporary Protection Directive 2001/55/EC Art. 15 Part D II Skordas 1087 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:19 3B2 9.1.580; Page size: 160.00mm 240.00mm 12 Reunification of members of the extended family is discretionary, but the Member States should take into account situations of ‘extreme hardship’. IV. Family members outside the EU territory (Article 15(3)) 13 In paragraph 3, the sponsor enjoys temporary protection in a Member State, but the other family members are either in the State of origin or in a third State, which is not an EU member. The obligation of the Member State to proceed with the reunification of nuclear family is linked here to the ‘need of protection’ of the family members who are not yet in the European Union. Close relatives who live in safety in another part of their home country, or who have found temporary protection in a third country, or in safe refugee camps with UNHCR presence in that third-country, or do not belong to the threatened groups enumerated in the Council Decision under Article 5(3)(a) are not eligible for family reunification. The discretion to reunite members of the extended family is even larger than under paragraph 2, because the responsibility of the host Member State is activated only if the said persons are both in need of protection, and would be in extreme hardship, if the reunification would not take place. V. Consideration of child interests (Article 15(4)) 14 The Directive does not mention the UN Convention on the Rights of the Child (CRC), but, as all 27 Member States of the EU have ratified this Convention, it is obvious that they should take full account of it by the transposition and implementation of the Directive.153 VI. Place of reunification (Article 15(5)) 15 According to the Commission’s proposal, the members of the family would ‘be reunited in the host Member State of their choice’.154 The CoR criticized this alternative because it might upset the burden-sharing among the Member States and create secondary movements.155 Austria asked for a revision in situations in which the reception capacity of a Member State was reached.156 Thereupon the provision was amended and took its final form, over the objections of the Commission that this system will considerably delay and complicate the reunification process.157 16 The decision, in which Member State the family will be reunited, shall be taken by the Member States concerned, that is by the Member States of residence of the separated family members, taking into account Article 25 and 26 on solidarity. However, the consent of the protected persons is a main element of the system of Chapter VI, and it should be also an important factor by the family reunification. The structure of paragraph 5 implies that the will of the family members should be in principle respected, unless serious reasons advocate for the opposite. Because of the ‘minimum 153 UNTS, Vol. 1577, p. 3. Cf. also Committee on the Rights of the Child, General Comment No. 5 (2003) on General Measures of Implementation of the Convention on the Rights of the Child, CRC/GC/ 2003/5, 27 November 2003. Amendment 25 of the EP proposed unsuccessfully the mentioning of the CRC in what became Article 16 of the Directive, A5-0077/2001, OJ 2001 C 343/82. 154 First sentence of the draft Article 13(5), COM(2000) 303, p. 34. 155 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 16.2. 156 Council doc. 6128/01, p. 18. 157 Council doc. 7964/01, p. 6. AsylumPart D II Art. 15 1088 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:20 3B2 9.1.580; Page size: 160.00mm 240.00mm standards’ character of the provision, Member States may decide by the transposition of the Directive to respect the will of the family members under any circumstances, as long as they decide to reunite in their own territory. 17No deadline is foreseen within which a final decision on the application for reunification should be reached, and this is a major weakness of the system.158 VII. Residence permits of family members (Article 15(6)) 18Paragraph 6 was necessary because beneficiaries of temporary protection enjoy no mobility in the EU. Residence permits issued for the family members who are reunited in another Member State are withdrawn, and new ones are issued by the Member State where the reunification takes place. Furthermore, the protection obligation of the Member State of the previous residence expires and is transferred to the Member State of the new residence. Article 16 1. The Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors enjoying temporary protection by legal guardianship, or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. 2. During the period of temporary protection Member States shall provide for unaccompanied minors to be placed: (a) with adult relatives; (b) with a foster-family; (c) in reception centres with special provisions for minors, or in other accommodation suitable for minors; (d) with the person who looked after the child when fleeing. The Member States shall take the necessary steps to enable the placement. Agreement by the adult person or persons concerned shall be established by the Member States. The views of the child shall be taken into account in accordance with the age and maturity of the child. Content I. Representation (Article 16(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Placement (Article 16(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Representation (Article 16(1)) 1This provision introduces measures for the representation and placement of unaccompanied minors, taking account of the vulnerability of this category of persons and the risks associated with trafficking.159 2The Commission’s proposal employed the phrase ‘necessary measures…to ensure the representation’,160 and was later amended into ‘necessary measures…to ensure the 158 Cf. EP A5-0077/2001, OJ 2001 C 343/82, Amendment 23. 159 ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.8. 160 Draft Article 14(1), COM(2000) 303, p. 34. Temporary Protection Directive 2001/55/EC Art. 16 Part D II Skordas 1089 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:21 3B2 9.1.580; Page size: 160.00mm 240.00mm appropriate representation’,161 to be finalized into ‘measures to ensure the necessary representation’. The meaning is that minors are to be legally represented as far as this is necessary under the circumstances of displacement.162 No time limit is foreseen for the taking of the decision on representation,163 and the more flexible formula of ‘as soon as possible’ was given the preference. II. Placement (Article 16(2)) 3 Representation or legal guardianship as above should be distinguished from placement, which indicates the actual assignment of the unaccompanied minor to the responsibility of an adult person or a foster family. ‘Adult relatives’ in the meaning of the provision are apparently persons belonging to the extended family of the minor (a), while ‘the person who looked after the child when fleeing’ is a third person, probably enjoying temporary protection as well (d). A foster family can be a family in the host country, or a family among the persons enjoying temporary protection, given that the Directive does not make any distinction (b). The minor does not give his or her consent, but their views should be taken into account, depending on the factors referred to by the provision. CHAPTER IV Access to the asylum procedure in the context of temporary protection Article 17 1. Persons enjoying temporary protection must be able to lodge an application for asylum at any time. 2. The examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Access to asylum procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Drafting history 1 Draft Article 16 of the proposal of the Commission looks similar to Article 17 of the Directive, as far as it guaranteed access to the procedure for the determination of refugee status. It differed from Article 17 by directly enabling Member States to suspend both the lodging of applications, and the further processing of those already lodged. The system proposed by the Commission guaranteed access to the procedures ‘no later than the end of the temporary protection’.164 This was an acceptable solution for the UNHCR,165 but not for some Member States that expressed strong reservations with regard to the implications of the suspension and the compatibility of this system with 161 Council doc. 6552/01, p. 10. 162 Cf. the suggestion of Germany and Finland (‘where necessary’), Council doc. 5191/01, p. 18. 163 As proposed by Greece, Council doc. 13958/00, p. 18. 164 COM(2000) 303, p. 21, 35. 165 Council doc. 11620/00, p. 7, 16. AsylumPart D II Art. 17 1090 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:21 3B2 9.1.580; Page size: 160.00mm 240.00mm the Geneva Convention, though the majority was in favour of the possibility of suspension.166 II. Access to asylum procedures 2In the compromise reached by the Member States,167 persons enjoying temporary protection must be able to lodge an application at any time; thus, suspension of access to the procedure is not permitted (para. 1). The provision acknowledges the possibility that asylum applications may not have been processed before the end of the period of temporary protection (para. 2), but without directly resolving the question, whether this may be due only to the factual overburdening of the asylum systems of the Member States, or also to a formal suspension of the processing of procedures. 3The overall course of the deliberations on this issue implies that suspension of the processing of applications was not excluded,168 and indeed certain Member States have made use of that possibility by the transposition of the Directive.169 Article 18 The criteria and mechanisms for deciding which Member State is responsible for considering an asylum application shall apply. In particular, the Member State responsible for examining an asylum application submitted by a person enjoying temporary protection pursuant to this Directive, shall be the Member State which has accepted his transfer onto its territory. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Responsibility for considering asylum applications. . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Drafting history 1The proposal of the Commission provided that the responsibility for considering asylum applications would be determined according to the Dublin system.170 In contrast, the UNHCR and the EP suggested that the host state should be responsible for the applications.171 Commenting on the Commission’s proposal, Italy asked, which Member State would be responsible in case of redistribution of beneficiaries of temporary protection across the EU.172 166 Council docs. 6303/01, p. 2–3 and 6709/01, p. 3–4. Spain, France, Belgium, Greece, and Portugal were among the countries opposing suspension. Significantly, Greece was concerned with the implications of the late submission of asylum applications that would prolong the presence of the applicants in the country. Austria, Germany, Ireland, Italy, Luxembourg, the Netherlands, Finland, Sweden and the UK favoured suspension. See Council docs. 11650/00, p. 2 and 6128/01, p. 21. 167 Agreement was gradually reached, see Council docs. 6914/01, p. 14; 7602/01, p. 15 and 7964/01, p. 20. 168 So Kerber, EJML 4 (2002), p. 193, 207. 169 Noll/Gunneflo, Odysseus Synthesis Report, p. 49–50. 170 COM(2000) 303, p. 21. 171 Council doc. 11620/00, p. 6; EP A5-0077/2001, OJ C 343/82, Amendment 26. 172 Council doc. 13958/00, p. 21. Cf. also the amendment proposed by Italy, Council doc. 6128/01, p. 22. Temporary Protection Directive 2001/55/EC Art. 18 Part D II Skordas 1091 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:21 3B2 9.1.580; Page size: 160.00mm 240.00mm II. Responsibility for considering asylum applications 2 Article 18 gives expression to two principles. The first is that the existing rules for the responsibility for considering the asylum applications should apply (first sentence). The second is that if a State has accepted the transfer of a displaced person onto its territory, it is also responsible for considering the application (second sentence). ‘Transfer’ is deemed to exist in family reunification, and in reallocation of displaced persons among Member States in application of the solidarity principle (Article 26(1)). Article 19 1. The Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration. 2. Where, after an asylum application has been examined, refugee status or, where applicable, other kind of protection is not granted to a person eligible for or enjoying temporary protection, the Member States shall, without prejudice to Article 28, provide for that person to enjoy or to continue to enjoy temporary protection for the remainder of the period of protection. Content I. Temporary protection and asylum seeker status (Article 19(1)) . . . . . . . . . . 1 II. Temporary protection, refugee status, subsidiary status (Article 19(2)) . 2 I. Temporary protection and asylum seeker status (Article 19(1)) 1 As long as the consideration of asylum applications is suspended under Article 17(2), this provision finds no application. If there is no suspension, the Member States have the option to provide that the applicant shall only enjoy the legal status of asylumseeker,173 but not temporary protection. The majority of the Member States have chosen to enable the persons concerned to enjoy the status of asylum seeker concurrently with temporary protection.174 II. Temporary protection, refugee status, subsidiary status (Article 19(2)) 2 If asylum or subsidiary protection status is granted to the applicant,175 he shall not enjoy temporary protection any more. If the application is rejected, and the applicant is either eligible, or enjoys temporary protection, the Member States shall provide for him to enjoy, or continue to enjoy, temporary protection. If the applicant’s residence permit under Article 8 had been revoked or suspended, and replaced with a document certifying the status of asylum-seeker under Article 6 para. 1 Asylum Reception Conditions Directive 2013/33/EU, the Member State shall re-issue, or restore the validity of, the former, as a matter of formality. 173 See former Asylum Reception Directive 2003/9/EC. 174 Noll/Gunneflo, Odysseus Synthesis Report, p. 51–52. 175 Former Asylum Qualification Directive 2004/83/EC. AsylumPart D II Art. 19 1092 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:22 3B2 9.1.580; Page size: 160.00mm 240.00mm 3If the asylum application has been rejected on the basis of exclusion grounds under Article 12 or 17 Asylum Qualification Directive 2011/95/EU, temporary protection may be refused, as well. In this case, exclusion under this Directive must be determined by a separate act taken under Article 28 (see below Article 28 MN 2). CHAPTER V Return and measures after temporary protection has ended Article 20 When the temporary protection ends, the general laws on protection and on aliens in the Member States shall apply, without prejudice to Articles 21, 22 and 23. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Status when the temporary protection ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Refugee status or subsidiary protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Immigration status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. New arrivals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. General remarks 1When the temporary protection ends, the persons that had enjoyed protection do not find themselves in a legal limbo, but cross-over to a provisional or permanent legal status. The Directive introduces the principle that, without prejudice to voluntary or enforced return, or extension of stay under Article 21–23, the general laws on protection and aliens shall apply. Here are some alternatives: II. Status when the temporary protection ends 1. Refugee status or subsidiary protection 2Persons who had already lodged an asylum application that had not been processed until the end of the temporary protection according to Article 17(2)2, enjoy the status of asylum-seekers. If they are recognized as refugees or as beneficiaries of subsidiary protection, they are entitled to stay in the host country under the respective status. Persons who apply for refugee or subsidiary status after the end of temporary protection can stay provisionally in the host country as asylum-seekers. If the applicants request constitutional asylum, their status will be decided according to the rules of the domestic law of the Member State. 2. Immigration status 3The legal status of persons who have not asked for protection, or whose application was rejected, but wish to stay in the host country shall be decided under the ordinary immigration law. The Member State may issue an authorization for residence and a related work permit, granting the applicants the status of legal immigrants. 4Deportation proceedings which had been suspended when the Decision under Article 5 took effect (see above Article 5 MN 6) can resume. Temporary Protection Directive 2001/55/EC Art. 20 Part D II Skordas 1093 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:22 3B2 9.1.580; Page size: 160.00mm 240.00mm III. New arrivals 5 If displaced persons still arrive after the end of temporary protection, the ordinary law of protection or of entry of non-citizens in the country shall apply. New arrivals from the area or region of conflict shall be considered either as asylum-seekers, or legal or illegal immigrants, depending on their individual circumstances.176 Article 21 1. The Member States shall take the measures necessary to make possible the voluntary return of persons enjoying temporary protection or whose temporary protection has ended. The Member States shall ensure that the provisions governing voluntary return of persons enjoying temporary protection facilitate their return with respect for human dignity. The Member State shall ensure that the decision of those persons to return is taken in full knowledge of the facts. The Member States may provide for exploratory visits. 2. For such time as the temporary protection has not ended, the Member States shall, on the basis of the circumstances prevailing in the country of origin, give favourable consideration to requests for return to the host Member State from persons who have enjoyed temporary protection and exercised their right to a voluntary return. 3. At the end of the temporary protection, the Member States may provide for the obligations laid down in CHAPTER III to be extended individually to persons who have been covered by temporary protection and are benefiting from a voluntary return programme. The extension shall have effect until the date of return. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Human dignity and voluntary return (Article 21(1)). . . . . . . . . . . . . . . . . . . . . . . 2 III. Voluntary return during temporary protection (Article 21(2)) . . . . . . . . . . . 5 IV. Voluntary return at the end of temporary protection (Article 21(3)). . . . 6 I. Drafting history 1 This provision regulates the voluntary return of persons either during the period of temporary protection, or after temporary protection ends. Germany, supported by the Netherlands, had proposed to add that ‘voluntary return shall take precedence over enforced expulsion’, but this proposal was not accepted. The second part of the proposal, adding the terms ‘with human dignity’,177 which did not exist in the Commission’s proposal, was integrated in Article 21(1). II. Human dignity and voluntary return (Article 21(1)) 2 The formulation of the second sentence of Article 21(1) creates the impression that ‘respect for human dignity’ refers only to those individuals who exercise the right of 176 COM(2000) 303, at 5.8, p. 10. 177 Council doc. 5191/01, p. 23. AsylumPart D II Art. 21 1094 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:22 3B2 9.1.580; Page size: 160.00mm 240.00mm voluntary return during the time of temporary protection, but not to those whose temporary protection has ended. The clause should be interpreted to cover both cases, because there is no apparent reason to differentiate. 3Human dignity refers to the manner in which return is conducted, but its significance in voluntary return is more limited than in Article 22(1) on enforced return. As long as the decision is not taken by the persons concerned ‘in full knowledge of the facts’, or without exploratory visits, if they were necessary, the return cannot be considered as ‘voluntary’. The same happens if there is any measure of compulsion or interference on the side of the authorities. At the heart of Article 21(1) lies therefore the voluntary character of the decision, not the dignity component. 4Exploratory visits presume that the protected persons may return to the host Member State without any further administrative obstacles. III. Voluntary return during temporary protection (Article 21(2)) 5Displaced persons who have exercised their right to voluntary return during the period of temporary protection may face serious challenges in the country of origin and may ask to return to the host country. Although it is not mandatory for the host Member State to re-admit these persons it ‘shall … give favourable consideration’ to these requests, and it is expected to allow them to return, unless there are serious reasons not to do so. IV. Voluntary return at the end of temporary protection (Article 21(3)) 6Persons covered by voluntary return programmes may benefit from an extension of the benefits of the temporary protection system, but this is optional for the Member States. Under this provision, these persons will not have to stay in the host Member State under the general immigration rules of provisional stay until their return to the country of origin, but may enjoy the benefits of Articles 9–16, even if the period of temporary protection has ended. Article 22 1. The Member States shall take the measures necessary to ensure that the enforced return of persons whose temporary protection has ended and who are not eligible for admission is conducted with due respect for human dignity. 2. In cases of enforced return, Member States shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases. Content I. Enforced return (Article 22(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Humanitarian exception (Article 22(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Enforced return (Article 22(1)) 1In the initial proposal of the Commission, there was no provision on enforced return, which was merely implicit in draft Article 20.178 This provision was later amended and became Article 22(2).179 178 COM(2000) 303, p. 22, 36. 179 Article 22 took its final form (almost) in Council doc. 7602/01, p. 17. Temporary Protection Directive 2001/55/EC Art. 22 Part D II Skordas 1095 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:23 3B2 9.1.580; Page size: 160.00mm 240.00mm 2 ‘Enforced return’ means return against the will of the person, following a decision on expulsion or deportation. The Member State can take this decision if three conditions are fulfilled: a) the temporary protection has ended, b) the person is not eligible to be legally admitted to the country for some other reason and c) the situation in the country of origin permits the safe and durable return. This last condition is the basis for the Council Decision that ends the period of temporary protection, under Article 6(2), but it should be applied by analogy also to enforced returns, if the maximum duration has been reached and the temporary protection was terminated without any Council Decision. The CoR even put forward the idea of a Council Decision under Article 6(1)(a) settling the question whether the conditions in the country of origin enable the return of displaced persons.180 3 The enforced return is to be conducted with ‘due respect for human dignity’, which means return with due respect to the rights of the individuals concerned, without harassment, arbitrary detention, physical threats, intimidation or discrimination, as well as without risk of injury or death.181 If constraining measures have to be employed, they should be proportionate to the objective, and limited to the necessary minimum for the implementation of deportation. II. Humanitarian exception (Article 22(2)) 4 The Commission’s Explanatory Memorandum on draft Article 20 listed certain compelling humanitarian reasons, such as granting a subsidiary form of protection, or showing a degree of tolerance pending expulsion or offering a lasting solution such as resettlement or a permanent or long-term residence permit when the armed conflict or persistent violation of human rights make the prospects of return unrealistic.182 In some of these cases protection can now be claimed under the Asylum Qualification Directive 2011/95/EU, while humanitarian cases related to health or education for children are dealt with in Article 23. Certain delegations had indeed argued that the draft article was superfluous,183 because it could be covered by the application of the general law on protection and on aliens (Article 20). 5 Despite these objections, the practical significance of Article 22(2) is not negligible, because it requests Member States to examine whether a long-term or permanent solution through resettlement might be preferable in individual cases, including age or vulnerability. The decision of the Council not to include draft Article 23 on resettlement programs in the Directive (see above Article 1) is not incompatible with a provision that asks Member States to consider the possibility of resettlement in individual ‘hardship’ cases. 6 The initial phrasing of draft Article 20 (‘impossible or unrealistic’)184 was amended into ‘impossible or unreasonable’.185 180 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 17.3. 181 See Ka¨lin, German Yearbook of International Law (44) 2001, p. 202, 229 et seqq., Noll/Gunneflo, Odysseus Synthesis Report, p. 56–57. 182 COM(2000) 303, p. 22. 183 Council doc. 6128/01, p. 24. 184 COM(2000) 303, p. 36. 185 Following the formulation of Recommendation R (2000) 9 on Temporary Protection of the Committee of Ministers of the Council of Europe, para 14, see Council doc. 6128/01, p. 24. AsylumPart D II Art. 22 1096 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:23 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 23 1. The Member States shall take the necessary measures concerning the conditions of residence of persons who have enjoyed temporary protection and who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted. They shall not be expelled so long as that situation continues. 2. The Member States may allow families whose children are minors and attend school in a Member State to benefit from residence conditions allowing the children concerned to complete the current school period. 1Article 23(1) introduces a mandatory humanitarian exception for reasons of health. The initial text of the Commission referred to persons ‘with special needs such as medical and psychological treatment’.186 Upon proposal of the Netherlands, the term ‘state of health’ was inserted,187 which seems to include both components. These persons can stay in the host country not only as long as they are not expected to travel, but also as long as the interruption of their treatment might cause negative effects to their health. 2The humanitarian exception of Article 23(2) enabling the prolongation of the stay until the end of the current school period is optional for the Member States. CHAPTER VI Solidarity Preliminary comments on Chapter VI (Articles 24–26) 1There have been extensive and vigorous debates in the Council on Articles 24–26 regarding solidarity, due to the objections certain Member States had put forward. At a relatively advanced stage of the deliberations (April 2001), Austria even submitted a reservation for the entire Chapter asking for enhanced solidarity in favour of States facing strong pressure in situations of mass influx.188 After political agreement was reached, the Austrian delegation made the longest statement that entered the Council’s minutes.189 Community solidarity has two components, financial solidarity (Article 24) and reception solidarity (Articles 25–26).190 2France suggested that by assessing the contribution of the Member States other types of action should be taken into account, including the military contribution to the restoration of peace, participation in civil protection units, or aid to NGOs in the specific crisis,191 but no consensus was reached on this proposal. 3The ‘double voluntary action’ is another principle linked to solidarity, but it was conceived differently by the Commission and by France. For the Commission, it meant that the host Member States determine their reception capacity, and the displaced persons express their will to be received by a certain Member State.192 For France, 186 Draft Article 22(1), COM(2000) 303, p. 36. 187 Council doc. 6128/01, p. 26. 188 Council docs. 7602/01, p. 18; 8964/01, p. 4. 189 Council doc. 9540/01 ADD 1, p. 2. 190 Recital 20. See also Article 80 TFEU. 191 Council docs. 8510/00, p. 5; 11650, p. 7. 192 COM(2000) 303, p. 23. Temporary Protection Directive 2001/55/EC Art. 23 Part D II Skordas 1097 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:23 3B2 9.1.580; Page size: 160.00mm 240.00mm followed by Portugal, it was about displaced persons deciding to arrive, or be transferred, to a Member State, and for the Member State to decide whether it would admit them, taking into consideration public order and national security.193 Article 25 follows the version of the Commission, but the exclusion clause of Article 28 took the concerns on security and order into account. Article 24 The measures provided for in this Directive shall benefit from the European Refugee Fund set up by Decision 2000/596/EC, under the terms laid down in that Decision. 1 Article 24 formulates the principle of financial solidarity between Member States.194 Financing of temporary protection by the ERF alone was insufficient for Austria, and in its statement that entered the Council’s minutes it asked for additional funding for Member States which might be ‘particularly severely affected’ by the mass influx.195 Article 25 1. The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity. They shall indicate – in figures or in general terms – their capacity to receive such persons. This information shall be set out in the Council Decision referred to in Article 5. After that Decision has been adopted, the Member States may indicate additional reception capacity by notifying the Council and the Commission. This information shall be passed on swiftly to UNHCR. 2. The Member States concerned, acting in cooperation with the competent international organisations, shall ensure that the eligible persons defined in the Council Decision referred to in Article 5, who have not yet arrived in the Community have expressed their will to be received onto their territory. 3. When the number of those who are eligible for temporary protection following a sudden and massive influx exceeds the reception capacity referred to in paragraph 1, the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected. Content I. Reception capacity (Article 25 (1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. The ‘will to be received’ (Article 25(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. Exceeding the reception capacity (Article 25(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Reception capacity (Article 25 (1)) 1 Article 25 articulates the meaning of reception solidarity, as Member States indicate their capacity to receive displaced persons. The capacity can be indicated either in specific figures or in general terms. Information on the reception capacity of each Member State shall be included in the Council Decision according to Article 5(3)(c). 193 Council docs. 8510/00, p. 3; 6128/01, p. 28. 194 Council doc. 8964/01, p. 4. 195 Council doc. 9540/01 ADD 1, p. 2. AsylumPart D II Art. 25 1098 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:23 3B2 9.1.580; Page size: 160.00mm 240.00mm 2In a statement entered into the minutes, the Council declared that by announcing its reception capacity, a Member State ‘may take into account the number of third country nationals who have already sought international protection or who have otherwise recently arrived on its territory’.196 3In its statement that also entered the Council’s minutes, Austria interpreted solidarity ‘as meaning an equal sharing of the burden between all Member States in the event of mass influx’. According to the statement, the main criterion for determining the country’s reception capacity would be ‘the number of displaced persons to be received in proportion to the total population of Austria’, as compared to that of the other Member States.197 II. The ‘will to be received’ (Article 25(2)) 4This is an aspect of the double voluntary action – eligible persons cannot be forced to be received in a certain Member State. Article 26(1) uses the term ‘consent’ instead of ‘will’, but there is no substantive difference between the two terms. The normative context may be different: according to an author, Article 25(2) intends to make sure that the Directive does not offer incentives to authoritarian regimes to expel their own people,198 while, obviously this question does not arise in Article 26. It is doubtful, however, whether this reasoning makes much sense, taking into account that mass displacement is by definition forcible population movement, even if it appears as an ongoing ‘voluntary exodus’ of the persecuted groups. III. Exceeding the reception capacity (Article 25(3)) 5If the mass influx exceeds suddenly the capacity of the European Union and the Member States, the Council shall (a) examine the situation and (b) take appropriate action. It is not clear, what kind of action the Council would take in these circumstances. Germany suggested a specific procedure to be followed modelled on Article 5, with a proposal of the Commission followed by a Decision of the Council, and obviously, a second pledging procedure by the Member States, but no consensus could be reached.199 6Moreover, it is not clear whether the ‘appropriate action’ and ‘additional support’ entail additional financial support exclusively, or they additionally address the reallocation of displaced persons across the Union. It seems that either alternative is possible. Transferral of displaced persons to other Member States can be established on the legal basis of Article 25(3) and 26. ‘Additional support’ should be integrated into a recommendatory act of the Council, but not into a binding Decision. Article 26 1. For the duration of the temporary protection, the Member States shall cooperate with each other with regard to transferral of the residence of persons enjoying temporary protection from one Member State to another, subject to the consent of the persons concerned to such transferral. 196 Council doc. 9540/01 ADD 1, p. 2. 197 Ibid. 198 Kerber, EJML 4 (2002), p. 193, 212. 199 Council doc. 6914/01, p. 17; cf. also 6709/01, p. 4. Temporary Protection Directive 2001/55/EC Art. 26 Part D II Skordas 1099 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:24 3B2 9.1.580; Page size: 160.00mm 240.00mm 2. A Member State shall communicate requests for transfers to the other Member States and notify the Commission and UNHCR. The Member States shall inform the requesting Member State of their capacity for receiving transferees. 3. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person enjoying temporary protection which is needed to process a matter under this Article. 4. Where a transfer is made from one Member State to another, the residence permit in the Member State of departure shall expire and the obligations towards the persons concerned relating to temporary protection in the Member State of departure shall come to an end. The new host Member State shall grant temporary protection to the persons concerned. 5. The Member States shall use the model pass set out in Annex I for transfers between Member States of persons enjoying temporary protection. 1 This article is also an expression of the principle of reception solidarity, if some Member States feel strong pressures due to mass influx, as well as of the principle of voluntary action.200 Transferral of the residence of protected persons should take place with their consent. As no free movement of beneficiaries of temporary protection between Member States is foreseen, the residence permit in the Member State of departure shall expire, and a new residence permit should be issued by the new host Member State. Annex I model pass is a transfer-only travel document. CHAPTER VII Administrative cooperation Article 27 1. For the purposes of the administrative cooperation required to implement temporary protection, the Member States shall each appoint a national contact point, whose address they shall communicate to each other and to the Commission. The Member States shall, in liaison with the Commission, take all the appropriate measures to establish direct cooperation and an exchange of information between the competent authorities. 2. The Member States shall, regularly and as quickly as possible, communicate data concerning the number of persons enjoying temporary protection and full information on the national laws, regulations and administrative provisions relating to the implementation of temporary protection. CHAPTER VIII Special provisions Article 28 1. The Member States may exclude a person from temporary protection if: (a) there are serious reasons for considering that: (i) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; 200 COM(2000) 303, p. 23–24. AsylumPart D II Art. 28 1100 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:24 3B2 9.1.580; Page size: 160.00mm 240.00mm (ii) he or she has committed a serious non-political crime outside the Member State of reception prior to his or her admission to that Member State as a person enjoying temporary protection. The severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected. Particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes. This applies both to the participants in the crime and to its instigators; (iii) he or she has been guilty of acts contrary to the purposes and principles of the United Nations; (b) there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State. 2. The grounds for exclusion referred to in paragraph 1 shall be based solely on the personal conduct of the person concerned. Exclusion decisions or measures shall be based on the principle of proportionality. Content I. Exclusion – General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Exclusion grounds (Article 28(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Exclusion – General remarks 1Exclusion is discretionary (‘may-clause’), and is limited to the reasons referred to in this article. Additional grounds of exclusion, linked, for instance, to false information or misrepresentation of facts by the displaced persons, or to inflows of persons exceeding the declared reception capacity under Article 5, is not permissible.201 Member States have the legal authority to deny admission to persons who do not belong to the protected groups, but this is rather an exercise of inherent powers related to the scope of the Directive and to the application of Article 5, than exclusion in the meaning of Article 28.202 2The decision to exclude an individual from temporary protection is an administrative act of the competent authority of the Member State concerned. The decision must be reasoned and enable a meaningful judicial review under Article 29. II. Exclusion grounds (Article 28(1)) 3The exclusion ground in (a)(i) corresponds to Article 1F(a) of the Geneva Convention. The first sentence of (a)(ii) corresponds to Article 1F(b) of the Geneva Convention, and sentences 2–4 were taken from the 1996 Joint Position of the Council on the harmonized application of the definition of the term ‘refugee’.203 The second sentence requests the Member States to engage in a balancing exercise between the severity of the offense and risk and severity of persecution. A decision should be taken according to the principle of proportionality, pursuant Article 28(2). The third and fourth sentences 201 Noll/Gunneflo, Odysseus Synthesis Report, p. 65. 202 See Article 5, above. 203 Article 13.2 of the Joint Position, OJ 1996 L 63/2. Temporary Protection Directive 2001/55/EC Art. 28 Part D II Skordas 1101 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:24 3B2 9.1.580; Page size: 160.00mm 240.00mm describe an exclusion of terrorists or suspected terrorists from temporary protection. Alternatively, it would have been possible to subsume this category of persons under case (iii), as terrorism is contrary to the purposes and principles of the United Nations. The exclusion ground in (a)(iii) corresponds to Article 1F(c) of the Geneva Convention. Finally, the exclusion ground in (b) corresponds to the exception from the principle of non-refoulement under Article 33(2) of the Geneva Convention. III. Assessment 4 As the Directive was adopted pre- 9/11, Article 28 was formulated as a ‘may’ clause. The former Asylum Qualification Directive 2004/83/EC and the Asylum Qualification Directive 2011/95/EU adopted a different pattern by emphasizing that ‘a third country national or a stateless person is excluded’ (Article 17(1)). The ‘may’ clause in the Temporary Protection Directive should be now interpreted as a ‘shall’ clause, taking into account the obligations arising from UN Security Council resolutions 1373/2001 and 2178/2014, both adopted under Chapter VII of the UN Charter.204 5 In 2005, the Summit Meeting of the UN Security Council called upon states ‘to prohibit by law incitement to commit a terrorist act or acts, prevent such conduct, and deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct’.205 The Asylum Qualification Directive 2011/95/EU followed the resolution and amended Article 17(2), so that the exclusion clause applies ‘to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein’. As the above resolution 1624/2005 was not explicitly adopted under Chapter VII, it has a recommendatory character, and therefore, despite its political significance, does not create a direct legal obligation to amend Article 28(1)(a)(ii) and (iii). However, in a future amendment, the Temporary Protection Directive should be harmonized at this point with the Asylum Qualification Directive 2011/95/EU. 6 Notwithstanding the need of an amendment, the meaning of ‘participants’ and ‘instigators’ should be interpreted taking into account UN Security Council resolutions 1373/2001, 2161/2014, and 2178/2014. CHAPTER IX Final provisions Article 29 Persons who have been excluded from the benefit of temporary protection or family reunification by a Member State shall be entitled to mount a legal challenge in the Member State concerned. Content I. Legal challenge – drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Exclusion from temporary protection and from family reunification. . . . 2 III. Other benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 204 See in particular operative paragraph 8 of UN Security Council resolution 2178/2014. 205 UNSC Res. 1624/2005, paragraph 1 of the preamble, and operative paragraph 1. AsylumPart D II Art. 29 1102 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:24 3B2 9.1.580; Page size: 160.00mm 240.00mm I. Legal challenge – drafting history 1The proposal of the Commission provided for the possibility of ‘legal challenge’ in cases of family reunification, and of ‘redress in the courts’ against decisions on exclusion.206 In the final text, both provisions merged into a separate article. A legal challenge includes administrative and judicial remedies. II. Exclusion from temporary protection and from family reunification 2Exclusion from temporary protection has a broader meaning than in Article 28, and encompasses also individuals who were denied temporary protection for any reason. If judicial protection against exclusion was limited to Article 28 cases, then the Member States could bypass the limits of that provision by excluding individuals on other grounds.207 Judicial protection can also be sought for exclusion from family reunification, but the absence of a deadline for the decisions of Article 15 may empty the right of its substance, if the Member State concerned does not outright deny reunification, but delays taking any decision on the matter. Furthermore, to the extent that reunification of the extended family is optional under Article 15, judicial control cannot be sought, unless a case of ‘extreme hardship’ exists, or the provision has been transposed by the Member State in mandatory terms. 3In a statement that entered into the minutes, the Council agreed that Article 29 did not restrict the right of the Member States to select, at their discretion, the persons who are admitted by way of a humanitarian evacuation programme. Furthermore, the Council agreed that the legal remedies against refusal of family reunification were available ‘only if a family member afforded temporary protection is already present in the Member State’.208 III. Other benefits 4There is no redress under the Directive for refusal of other benefits granted to persons enjoying temporary protection under the Directive. Therefore, these benefits should be considered as obligations of the Member States not corresponding to ‘subjective rights’ under EU law. 5Due to the minimum standards nature of the benefits of the Directive, Member States may recognize wider rights of judicial protection, according to their constitutional systems. Acts and decisions relevant to the provisions of the Directive and affecting the fundamental rights of the persons concerned may be challenged before the appropriate municipal courts. Article 30 The Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. 206 Draft Article 13(6) and 29(2) respectively, COM(2000) 303, p. 34, 38. 207 Cf. also Noll/Gunneflo, Odysseus Synthesis Report, p. 68. 208 Council doc. 9540/01, p. 3. Temporary Protection Directive 2001/55/EC Art. 30 Part D II Skordas 1103 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:25 3B2 9.1.580; Page size: 160.00mm 240.00mm 1 ‘National provisions’ are those that have been adopted by the Member States pursuant to the Directive. Objective of the penalties, which should be determined by the Member States, and not by the European Union,209 is to ensure that the respective national provisions on the Directive are implemented. In the Commission’s view, penalties are necessary, for instance, ‘in cases where beneficiaries of temporary protection are illegally expelled from accommodation centres or where a required medical centre refuses access to emergency care’.210 2 Despite its clear meaning, some Member States transposed the provision by introducing penalties against the protected persons for violations of the Directive. This approach is plainly wrong and incompatible with the letter and purpose of Article 30.211 Article 31 1. Not later than two years after the date specified in Article 32, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. The Member States shall send the Commission all the information that is appropriate for drawing up this report. 2. After presenting the report referred to at paragraph 1, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States at least every five years. 1 No reports have been submitted, because the Directive has not been applied yet.212 Article 32 1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002 at the latest. They shall forthwith inform the Commission thereof. 2. When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States. 1 The territorial scope of the application of the Directive includes 26 from the 27 Member States, as Denmark opted out, in accordance with Article 1 and 2 of the Protocol on the position of Denmark annexed to the Treaties.213 The UK opted in,214 while Ireland initially did not participate in the adoption of the Directive, but subsequently (2003) opted in.215 The Directive has been transposed into domestic law, but the 2007 Odysseus study identified serious problems in a number of Member States, including Austria, Lithuania, the Netherlands, and Italy.216 209 So the Commission, in Council doc. 11650/00, p. 11. 210 COM(2000) 303, p. 25. 211 Noll/Gunneflo, Odysseus Synthesis Report, p. 69. 212 Commission Communication, SEC(2009) 765, p. 15. 213 Preamble of the Directive, recital 26. 214 Ibid., recital 24. 215 Ibid., recital 25, and Commission Decision 2003/690/EC. 216 Noll/Gunneflo, Odysseus Synthesis Report, passim, in particular p. 14–15. AsylumPart D II Art. 32 1104 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:25 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 33 This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities. 1The Directive was published in the Official Journal on 7 August 2001 and entered into force on the same day. Article 34 This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Temporary Protection Directive 2001/55/EC Art. 34 Part D II Skordas 1105 Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:25 3B2 9.1.580; Page size: 160.00mm 240.00mm ANNEX I AsylumPart D II Annex I 1106 Skordas Reemers Publishing Services GmbH O:/Beck/Hailbronner_Thym_EUIm/3d/27 SKORDAS temporary protection.3d from 02.03.2016 07:36:30 3B2 9.1.580; Page size: 160.00mm 240.00mm ANNEX II The information referred to in Articles 10, 15 and 26 of the Directive includes to the extent necessary one or more of the following documents or data: (a) personal data on the person concerned (name, nationality, date and place of birth, marital status, family relationship); (b) identity documents and travel documents of the person concerned; (c) documents concerning evidence of family ties (marriage certificate, birth certificate, certificate of adoption); (d) other information essential to establish the person’s identity or family relationship; (e) residence permits, visas or residence permit refusal decisions issued to the person concerned by the Member State, and documents forming the basis of decisions; (f) residence permit and visa applications lodged by the person concerned and pending in the Member State, and the stage reached in the processing of these. The providing Member State shall notify any corrected information to the requesting Member State. Temporary Protection Directive 2001/55/EC Annex II Part D II Skordas 1107

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References

Abstract

National rules on immigration and asylum have been transformed in recent years. EU Directives and Regulations, including the relevant case law of the European Court of Justice, become ever more important – both for those working in ministries, immigration authorities, national courts, academia, non-governmental organizations and as practicing lawyers. They may benefit from the fundamentally revised and amended second edition, which focuses on core legislation, incl. the

<li>Asylum Qualification Directive

<li>Asylum Procedure and Reception Directives

<li>Dublin III Regulation

<li>Border Code, Visa and Frontex Regulations

<li>Family Reunion Directive

<li>Blue Card Directive

<li>Long Term Residents’ Directive

<li>Return Directive

Zusammenfassung

Da wesentliche Teile des Ausländer- und Asylrechts in die Kompetenz der EU übergegangen sind, werden die auf der Grundlage des EG-Vertrags erlassenen Verordnungen und Richtlinien von immer größerer Bedeutung für die Praxis der Ausländerbehörden und Verwaltungsgerichte. Allein in Deutschland sind mehr als fünf Vorlagen zur Auslegung von Richtlinien, insbesondere im Bereich der sog. Qualifikationsrichtlinie (Kriterien der Anerkennung als Flüchtling) von deutschen Gerichten beim Europäischen Gerichtshof anhängig gemacht worden.

Auch die Ausländerbehörden sind verpflichtet, Verordnungen und Richtlinien zur Auslegung des nationalen Rechts bzw. zur Korrektur des nationalen Rechts anzuwenden. Nicht nur in Deutschland, sondern auch in anderen EU-Mitgliedstaaten finden sich daher zahlreiche Gerichtsentscheidungen, die sich mit der Auslegung von EU-Richtlinien und Verordnungen im Bereich des Ausländer- und Asylrechts beschäftigen. Das englischsprachige Werk dient der Darstellung der wichtigsten Richtlinien in den Bereichen:

<li>Qualifizierung als Flüchtling (Qualifikationsrichtlinie),

<li>Asylverfahren (Verfahrensrichtlinie),

<li>Rechtsstellung von Studierenden (Studentenrichtlinie),

<li>Forscher (Forscherrichtlinie),

<li>Familiennachzug von Drittstaats-angehörigen (Familiennachzugsrichtlinie),

<li>Einwanderung von Arbeitnehmern zum Zweck der Arbeitsaufnahme (Blue Card-Richtlinie),

<li>Rechtsstellung von sich länger im EU-Gebiet aufhaltenden Drittstaatsangehörigen (Rechtsstellung der Drittstaatsangehörigen),

<li>Zuständigkeit zur Prüfung von Asylgesuchen (sog. Dublin-Verordnung).

<b>Vorteile auf einen Blick</b>

<li>durch Migrationsdruck auf Europa in erheblichem Maße praxisrelevant

<li>Übertragung der deutschen Tradition kommentierter Gesetze auf den angelsächsischen Sprachraum

<li>Hilfestellung bei der Auslegung dieser Richtlinien, insbesondere für die Praxis

<li>Fokus auf EU-Entscheidungen und Entscheidungen nationaler Gerichte