Temporary protection of non-Ukrainian nationals: instructions for use and recourse to the judge

Decisions are rare in terms of temporary protection: this system launched in response to the war in Ukraine is very recent and unprecedented. The firm obtained a favorable order in summary proceedings from the Administrative Court of Montreuil which illustrates the conditions to be fulfilled and the role of the judge.

1. The conditions to be met for a non-Ukrainian to benefit from temporary protection.

As a reminder, Council Directive 2001/55/EC of July 20, 2001 defines the framework for the application throughout the territory of the European Union of special protection granted in the event of a massive influx of displaced persons.

This status aims to ensure uniform protection on the territory of all the Member States in the event of the hasty and massive arrival of third-country nationals. This protection, of conventional origin, has long been integrated into national law, today hui in Articles L. 581-1 et seq. of the CESEDA. It opens the right to the issue of a temporary residence permit, which allows in particular to exercise a professional activity in France. To be applicable, this protection must be subject of a decision of the Council of the European Union (article 5 of the directive). For the first time, this device was activated following the invasion of Ukraine by the Russian Federation. March 4, 2022 , the Council of the European Union noted the existence of a massive influx of displaced persons from Ukraine and introduced temporary protection (Council Implementing Decision (EU) 2022/382 of 4 March 2022) This decision also defines the categories of persons likely to benefit from temporary protection:

Ukrainian nationals present in Ukraine on February 24, 2022 (date of the start of the war) or having their habitual residence in Ukraine on this date; Their family members who fled with them; And third-country nationals Ukraine on the double condition that:

They were legally residing in Ukraine on February 24, 2022 under cover of a "valid permanent residence permit"; And that they could not return to their country of origin "under safe and lasting conditions"

It should first be noted that this last condition was not initially provided for by the European Commission, which had suggested that the mere possession of a permanent residence permit could be sufficient to benefit from temporary protection.The Council of the Union European Union wished to add this condition. However, it refrained from giving a precise definition. The same applies to the interministerial instruction of March 10, 2022, which merely indicates to the prefects that "for the application of these provisions, you will invite the person concerned to an interview during which you will carry out the examination of his individual situation “It is ultimately the European Commission which provides the most precise framework for analyzing this condition. In its guidelines of March 21, 2022, it first notes “that it is a sui generis concept" (Communication from the Commission on operational guidelines for the implementation of Council Implementing Decision 2022/382 noting the existence of a mass influx of displaced persons from Ukraine, within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection - 2022/C 126 I/01).

She then considers that:

The “safe” nature of a return is assessed with regard to “situations of armed conflict or endemic violence” and the “serious risk of systematic or generalized violation of human rights in the country of origin”. must also be analyzed with regard to “an obvious risk to the safety of the person concerned” or “documented risks of persecution or other inhuman or degrading treatment or punishment”.

The "durable" nature is assessed with regard to the possibility for the person concerned to "enjoy in his country or region of origin active rights offering him the prospect of having his basic needs satisfied in this country or region as well as the possibility of being reintegrated into society. In this respect, the commission invites the Member States to "take into account the question of whether the person concerned still has a significant link with his country of origin, taking into consideration, for example, the time spent in Ukraine or the existence of a family in its country of origin »

Finally, the European Commission considers that these two conditions must be analyzed both with regard to “the general situation in the country or region of origin” and the individual elements provided by the applicant.

2. An example of the judge's assessment during an appeal against a refusal of temporary protection.

The firm obtained a favorable interim suspension order from the Administrative Court of Montreuil for a Bangladeshi national, who had been living in Kiev for many years and who fled 2 days after the start of the war. Three lessons can be drawn from this decision:1️⃣ The judge recalls that temporary protection does not only concern Ukrainian nationals, but also third-country nationals who cannot return to their country of origin under "safe and durable" conditions.2️⃣The judge's analysis in terms of temporary protection is interesting: it is similar to the office of the asylum judge. And it requires significant probationary work, with personal elements on the risks incurred by the applicant.3️⃣The assessment of urgency is more classic, but it is based on the "very exceptional circumstances" of arrival in France for fleeing the war and on the guarantees attached to the temporary protection of which the applicant was deprived.

In conclusion: the rejection of an application for temporary protection can be challenged before the Tribunal. For non-Ukrainian nationals, it is necessary to gather concrete evidence justifying the risk incurred in the event of return to the country of origin. For any questions, contact us:

Alexandre DELAVAY

E-mail : alexandre.delavay@delavay-avocat.fr

Such. : 33 66060939326