Selected issues of the institure of temporary protection im EU Council decision 382/2022 in Czech law

In the context of the war in Ukraine, it appears appropriate, after three months of on-going conflict, to clarify certain issues related to the institute of temporary protection which are raised by Act No. 65/2022 Coll. (“Lex Ukraine”) and Act No. 221/2003 Coll. An amendment to the “Lex Ukraine” is currently in the works.
Authors: Dr. Stephan Heidenhain, Filip Hradický

In the context of the current armed conflict in Ukraine triggered by the invasion of the troops of the Russian Federation and, as a result, the abundant migration of innocent Ukrainian citizens to the Czech Republic, in numbers currently estimated around 400,000 (as against an EU-wide number of Ukrainian refugees of 4 million in total), it appears appropriate to clarify certain issues related to the institute of temporary protection in Act No. 65/2022 Coll. (“Lex Ukraine”) and Act No. 221/2003 Coll. An amendment to Lex Ukraine is being planned, and we believe that our remarks could be taken into account in the legislative process.

The institution of temporary protection was introduced by EU Council Decision 382/2022 of 4 March 2022 (the “EU Decision”; see our article “https://bnt.eu/legal-news/the-rules-for-ukrainian-refugees-in-eu-countries/)” across all EU Member States – except Denmark – in reference to Directive 2001/55/EC. The latter established the possibilities mentioned herein as long as 20 years ago (but no use was made of this instrument even in 2015/2016, apparently because of lacking consensus and political will).

In the Czech Republic, the EU decision has been enacted by Acts No. 65/2022 Coll. (“Lex Ukraine”) and No. 66/2022 Coll. referring to still dormant Act No. 221/2003 Coll. Temporary protection can thus be considered a kind of new residency permit for the territory of the Czech Republic which is equivalent to permanent residency and which provides the holder with access to the labor market and to social rights in the Czech Republic. The primary purpose of temporary protection is to simplify and, in particular, to speed up the procedure for granting such residence status. An important plus is its significant departure from the excessive formalism of Czech bureaucracy. Thus, the Czech State guarantees that applicants for temporary protection will be granted assistance, provided that they meet the relatively undemanding conditions set out in the new Act No 65/2022 Coll., which are considerably simplified compared to the conditions imposed on applicants for other residence permits under the Aliens Act (Act No. 326/1999 Coll.).

However, after these first three months, several issues in the application of Lex Ukraine are still open (or at least not fully resolved):

Problematic applicant groups

People not covered by temporary protection according to Article 2(1) of the EU Decision have practically two options in the Czech Republic: to apply for a residence-tolerance visa or asylum.

Unfortunately, the Czech lawmaker did not extend the groups of applicants in § 3(1) Lex Ukraine, although this possibility is provided for by Article 2(2) of the EU Decision (e.g. for Ukrainian refugees who were already in the EU before 24 February 2022, when the invasion started).

Further, the exclusion of such third-country nationals from the EU Decision, i.e. non-Ukrainian citizens who did not have permanent but merely temporary residence in Ukraine before 24 February 2022, is in our view a rather restrictive and strict approach to dealing with the status of several groups of refugees from Ukraine. In particular, Lex Ukraine lacks a mechanism by which the Ministry of Interior could grant temporary protection on humanitarian grounds or in extreme cases – which it in fact grants in those cases: in our experience, we have already encountered such cases of refugees from Ukraine, e.g. a family of Belarusian citizens – parents with two underage children – who were staying in Kyiv on 24 February 2022 as political refugees from Belarus since 2020, but only with a temporary residence for two years, or two young Russian IT professionals from Siberia who stayed in Kharkiv as self-employed individuals with a temporary stay, also for two years as of 24 February 2022. Furthermore, it is difficult in these cases to decide under what conditions these persons would have to return to, for example, Belarus or the Russian Federation.

In addition to this, the procedure for granting a residence-tolerance visa or asylum follows the standard procedure – and is therefore highly impractical and risky for refugees given their urgent situation. The risk can be seen in particular in the uncertainty in relation to the outcome of the proceedings and, particularly in the case of asylum applications, in the duration and success of such proceedings.

Relocation of persons with temporary protection within EU Member States

In practice, a situation may arise where a person who has been granted temporary protection in another EU Member State finds that, for whatever reasons, it would be preferable for them to be granted temporary protection in the Czech Republic compared to another Member State that has already granted them temporary protection.

In situations where the relocation of the temporary protection is for family-related reasons, Act No. 221/2003 Coll., § 51 et seq. sets out clear conditions for the relocation within the Member States of the European Union. The conditions laid down for the purpose of family reunification by this law – i.e., not by the special Lex Ukraine, which considers such applications “inadmissible” – are, in particular, that the person applying for relocation of temporary protection to the Czech Republic must be a family member, i.e. a spouse or partner, an unmarried child under the age of 18, etc., provided that they were living together permanently as of 24 February 2022. If the person in question cannot be categorized as a family member, one could consider as a last resort the category of “person close to a foreigner under temporary protection in the Czech Republic”.

Unfortunately, however, one must conclude that Lex Ukraine does not allow for any other possibility of transferring persons with temporary protection among individual EU Member States (always except Denmark), even though Article 11 of the EU Directive allow for it when the consent of both EU Member States was provided. In contrast, the legislation in the Federal Republic of Germany, §§ 24, 29 of the Aufenthaltsgesetz (Law on the Residence of Foreigners in Germany) allow for this possibility when another Member State agrees to take such persons. This possibility is provided for in Article 26 of Directive 2001/55/EC. Furthermore, Article 25 of the Directive provides that “Member States shall admit persons entitled to claim temporary protection in a spirit of the Community’s solidarity.”

Direct contradiction of Lex Ukraine (§ 5(2) of Act No. 65/2022 Coll.) to § 17 of Law No. 221/2003 and Article 29 of Directive 2001/55/EC

Ruling out any judicial review for inadmissible applications, as referred to in § 5(2) of Lex Ukraine, is a clear contradiction of the rule of law. This contradiction can also be seen in connection to other stipulations, such as: § 17 of Law No. 221/2003 and Article 29 of Council Directive 2001/55/EC:
“Persons who are refused temporary protection or family reunification by a Member State are entitled to lodge an appeal in that Member State.”

Given the only very recent enforcement and effectiveness of the aforementioned regulation, it may be noted that there are no court decisions dealing with this contradiction yet. It is not clear whether this contradiction was created by error or by the will of the Czech lawmaker (i.e. to relieve the authorities from the obligation to decide on such applications, and to avoid any judicial review), but we do not think that this exclusion as formulated in § 5(2) of Lex Ukraine arose by mere chance. The legislature should quickly allow for the judicial review of these decisions and thus remove the contradiction between Czech Act No. 221/2003 and Lex Ukraine and the manifest conflict between Czech law and Article 29 of Directive 2001/55/EC.

The aforementioned contradictions between the Czech transposition and Directive 2001/55/EC (which may also apply to other Member States) stand out for everyone to see even today. It would be more than advisable for the Czech lawmaker to address this discrepancy immediately, as it could have fatal impact on thousands of refugees who may find themselves in a crisis of existential order.

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