Introduction to the Temporary Protection Directive

Following the recent Taliban takeover of Afghanistan and the consequent influx of asylum seekers in Europe stemming from that region, asylum law reform is again, hugely topical in EU policy reform. This is not the first time the resolve of Member States has been tested, in such times of crisis.  

Following the wars across former Yugoslavia throughout the 1990s and the subsequent mass displacement of people across EU countries, it became clear that special measures would be necessary for the future, to manage any similar events. As a result, the Temporary Protection Directive (“the Directive”) was drawn up in 2001.  

The Directive is to be used in the event that there are so many people seeking protection that the normal asylum procedure is unable to meet the demand. It contains minimum standards that EU Member States must adhere to and makes provision for asylum seekers to be fairly spread out across Europe. In this way, rights of asylum seekers are harmonised across the EU, and no single Member State can be overburdened with processing the majority of asylum seekers. However, despite various events over the last ten years, including the European migrant crisis of 2015, this Directive has never been put into force.  

In a letter to the European Commission dated 30 August 2021, Amnesty International urged the EU to activate the Directive, to effectively co-ordinate resettlement programmes and to avoid any disparity among EU countries. Greater protection can be offered to a greater number of Afghan asylum seekers, if the EU adopts a harmonious approach to the crisis. This could potentially make it easier for Afghans to seek family reunions for extended family members who find themselves in other parts of the EU. Amnesty International also suggests that organising in this way would better contribute to the global response to Afghanistan, rather than having a fragmented approach, where each Member State follows its existing asylum procedure. 

In January 2016, the Commission ordered a study into whether the Directive was fit for purpose. The study highlighted the strengths and weaknesses of the Directive and noted that: 

  • One of its main strengths was its flexibility and ability to apply to a wide variety of “mass influxes”.  
  • However, the flexibility in defining “mass influx” also compounds one of the main drawbacks of the Directive - the cumbersome process of triggering it. The study noted that the process to activate the Directive could only be started by the Commission upon request from a Member State or acting independently, and that there is no detailed guidance on what factors the Commission should consider when deciding whether to approve a request or not.  
  • The study suggested that the absence of detailed guidance would lead to political arguments at every stage of the procedure, slowing down what is supposed to be a fast-acting mechanism. 

At the height of the European migrant crisis of 2015, the European Parliament called for the Directive to be triggered, in its April 2015 Resolution. The Commission decided against doing so.  

Comment

It remains to be seen if the European Commission or European Parliament will propose triggering the Directive. Last year, the European Commission proposed a further review of the current Common European Asylum System. Perhaps the current pressures will be a much-needed impetus for change, but in the meantime, it may be beneficial to all Member States to respond to Afghanistan through the Directive – a system with its downsides, but one which is uniform and familiar to Member States and EU institutions. 

October 2021