The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes the Commission proposal for a draft Directive on temporary protection in the event of a mass influx as a comprehensive proposal that provides a sound basis for establishing a European approach to temporary protection. UNHCR considers the provisions of the Commission proposal as being largely in accordance with internationally agreed principles embodied in the Conclusions of the Executive Committee of UNHCR (EXCOM) as well as other standards advocated in various UNHCR documents .

UNHCR’s detailed commentary on the Commission proposal is annexed. The purpose of this summary note is to highlight those elements of the Commission proposal which UNHCR considers fundamental and to summarise its proposals for amendment.

UNHCR welcomes the emphasis in the Commission proposal to approach temporary protection as an exceptional measure and a pragmatic tool to address particular situations of large-scale influx where national asylum systems may be overwhelmed. As the Commission emphasises in its proposal, temporary protection must not be used as an instrument to circumvent States’ obligations pursuant to the 1951 Convention.

UNHCR supports the proposed inclusion of a burden-sharing mechanism in any future European approach to temporary protection. Were such a mechanism — whether financial only or also including a physical distribution of persons — not to be established, the absorption and reception capacities of Member States most affected by the influx are likely to come under undue pressure. This, in turn, could jeopardise the fair and effective functioning of any future co-ordination for the provision of temporary protection at the level of the European Union.

UNHCR appreciates that the Commission has chosen the Directive as the most appropriate legal instrument, which allows it to lay down minimum standards while leaving to the national authorities the choice of the most appropriate form and methods for their implementation. This can include the adoption of more favourable standards and provisions (Article 3 (5) ) and leaves unaffected national temporary protection schemes adopted prior to the establishment of a European regime (Article 3 (4) ).

UNHCR welcomes the various references to the need to consult and inform the Office at the inception, implementation and termination of temporary protection, as well as the establishment of a burden-sharing mechanism.

Among the elements in the Commission proposal which UNHCR considers fundamental to any Directive to be adopted in Council are the following:

• a reaffirmation of the primacy of the 1951 Convention and its 1967 Protocol as the basic instruments for the treatment of refugees, and an acknowledgement of the fact that many beneficiaries of temporary protection qualify as refugees under the 1951 Convention;

• the establishment of a clear link with the protection regime under the 1951 Convention: according to Article 3 (1) , temporary protection does not prejudge recognition of refugee status under the 1951 Convention and according to Article 16, beneficiaries of temporary protection shall be guaranteed access to the asylum procedure, no later than at the end of the period set for the temporary protection regime

• a comprehensive set of standards of treatment for beneficiaries of temporary protection: Articles 8 — 15 establish State obligations towards beneficiaries, including family reunion, respect for basic social, economic and cultural rights, such as the right to employment, with particular attention to persons with special needs, especially of separated children. The level of obligations is based on the correct understanding that many beneficiaries may qualify for refugee status and, hence, that their rights and benefits should closely resemble those of refugees recognised under the 1951 Convention;

• a limited duration of the temporary protection regime: according to Article 4, the period shall be one year, with a maximum extension of two times six months, thus two years in aggregate. The proposed short duration allows for an individual examination of the asylum application within a reasonable time limit and preserves the temporary nature of the regime;

• solidarity and burden-sharing: Articles 24-26 acknowledge the link between temporary protection and solidarity, a link which has been recognised in various EXCOM resolutions. They also stipulate that any transfer of beneficiaries under a burden-sharing regime should take place with the consent of the persons concerned;

• return and measures after lifting of the temporary protection regime: Articles 19 — 23 emphasise a preference for voluntary return, allow for exploratory visits, the extension of temporary protection for humanitarian cases and the provision of permanent asylum for specific categories of persons who cannot return, including through resettlement to third countries;

• UNHCR’s consultative role: according to Article 3 (3), the Commission recognises a need for regular consultations with UNHCR concerning the establishment, implementation and termination of a European temporary protection regime. Article 5 (2) calls for seeking UNHCR’s assessment whether a situation of influx should result in the inception of a temporary protection regime, and Article 25 and 26 for notification of UNHCR regarding States’ reception capacities in view of establishing a burden-sharing mechanism.

Notwithstanding its generally positive assessment of the Commission proposal, UNHCR recommends the following amendments:

• the proposal would benefit from an explicit reference to the principle to admit those arriving in a large-scale influx in the country where they first seek refuge, and the obligation of States to scrupulously observe the principle of non-refoulement, including rejection at the border. These principles have been recognised as core elements of any temporary protection regime. While this omission is undoubtedly linked to the specific scope of the draft Directive (aiming at setting minimum standards of treatment after admission and promoting a balance in State efforts) it would be desirable that these principles be explicitly recalled in the text.

• the proposal could suggest that States should not impose any measures, such as visa requirements or sanctions on carriers transporting improperly documented persons, which may prevent refugees from gaining access to temporary protection.. Where such measures are already in place, their temporary suspension as part of a common European policy should be considered;

• the proposal would benefit from the inclusion of a provision to ensure that a temporary protection system, once declared, is applicable to all those fleeing the same country of origin for the same or similar reason, in order to ensure non-discriminatory treatment between those arriving spontaneously and those who may be admitted under any potential evacuation programme;

• although the standards of treatment proposed are to be applied with due respect for human rights as guaranteed by the European Convention on Human Rights (Article 3 (2)), the proposal could spell out in detail, as it does with a number of other rights and benefits, the right to freedom of movement, stipulating that beneficiaries of temporary protection should not be subjected to restrictions on their movements within a given Member State, other than those which are necessary in the interest of public health and public order;

• as regards the handling of asylum applications once temporary protection has been terminated, rather than maintaining criteria and mechanisms to determine responsibility for considering the asylum application, as set out at present under the Dublin Convention, the proposal should stipulate that, for humanitarian and practical reasons, the State which has been providing protection under temporary protection also bears responsibility for subsequently determining the asylum claim. Article 17 should be amended accordingly;

• in addition to the provisions referring to the need for continued protection where temporary protection has come to an end, including the recognition of compelling humanitarian reasons which militate against return (Article 20), it should be acknowledged that among these can be reasons arising out of past experience, including past persecution. Where this is the case, a long-term solution — such as the provision of a refugee status - should be sought rather than a mere extension of temporary protection;

• as regards the scope of the proposed Directive, nothing contained in the Directive should be construed as impairing the right of nationals of EU Member States to seek and enjoy protection — in conformity with relevant international instruments for the protection of refugees and for the protection of human rights.

UNHCR notes a few specific issues in the Commission proposal which have caused some controversy in the context of discussions with Member States related to previous Commission initiatives and on which the Office would clarify its position.

As any temporary protection regime should be considered as an exceptional measure of a truly temporary nature - resulting in suspension of access to the asylum procedure for a limited period of time — Member States must not avoid their international obligations to examine, at some point, the needs for protection in an individual determination procedure. It is generally understood that many of the beneficiaries of temporary protection qualify for refugee status under the 1951 Convention, and any asylum claim should be determined as soon as possible, but no later than the moment the temporary protection regime is lifted. UNHCR is opposed to practices previously adopted by some States offering those arriving in large-scale influxes a one-time choice of lodging an application for asylum or benefiting from a temporary protection regime. In the view of UNHCR, as also proposed by the Commission, access to the asylum procedure must always be guaranteed.

UNHCR strongly supports the proposal to provide beneficiaries of temporary protection with standards of treatment which approximate to the rights and benefits of recognised refugees, on the understanding that many beneficiaries may qualify for refugee status. Such an approach is all the more justified where the need for protection continues to exist over an appreciable period of time.

UNHCR, as stated above, recommends that the draft Directive expressly provide for the right to freedom of movement — save for those legitimate restrictions set out in international and regional human rights instruments — within each Member State.

As regards the right to employment, UNHCR has regularly appealed to States to provide beneficiaries of temporary protection with this right, since early access to the labour market may help to diminish dependency on social assistance and also facilitate the reintegration upon eventual return to the country of origin. UNHCR supports the Commission proposal in this regard (Article 10) as well as the need to apply equal treatment of beneficiaries of temporary protection and recognised refugees as regards remuneration, social security, and other conditions of employment.

UNHCR welcomes the Commission’s intention to harmonise the varying States practice on family unity in regard to temporary protected persons. The Commission’s proposal to authorise family reunion for at least spouses and minor children benefiting from temporary protection reflects a trend in many Member States. UNHCR encourages Member States to adopt the Commission’s proposal to extend the concept of the family to unmarried partners, children of unmarried couples and adult family members who are objectively unable to meet their own needs or are in a particularly vulnerable situation and hence dependent on other members of the family.

UNHCR supports the Commission’s proposal for allowing, if necessary, financial assistance to States most affected by an influx, as well as physical distribution of persons, provided the beneficiaries of temporary protection and the host country agree with such re-location. Any burden-sharing arrangements for the redistribution of persons must respect the protection needs of the individuals concerned, as well as basic protection principles, such as family unity or humanitarian concerns. The existence of such arrangements must not be made a pre-condition for extending protection, just as they should not result in what would be in effect burden-shifting.

UNHCR would agree with the Commission proposal that following the lifting of temporary protection and in the absence of compelling humanitarian reasons, beneficiaries should be asked to return to their home country, provided that they do not lodge an application for asylum. Such returns should preferably be voluntary and must be implemented in safe and dignified conditions. UNHCR welcomes the references in the Commission proposal to the need to provide accurate information concerning the conditions in which beneficiaries will return, and the possibility of organising exploratory visits.

UNHCR believes that the proposed approach to return is both principled and sufficiently flexible to be applied in a fair and non-discriminatory manner. UNHCR also supports the proposed extension of temporary protection in specific cases where voluntary return cannot be organised immediately following the lifting of the regime, or prolonged stay in the host country is warranted for medical reasons or because children are to complete education.

In deciding upon the termination of a temporary protection regime, UNHCR urges Member States and the Commission to verify whether the conditions in the country of origin are conducive to return, by assessing whether guarantees related to the physical safety, legal security and respect for basic rights of potential returnees are fulfilled. In the absence of such guarantees, beneficiaries of temporary protection should be offered a long-term solution such as permanent asylum or resettlement.

15 September 2000