Temporary Protection: Poland and Hungary Once Again Creating Their Own Rules in Breach of EU Law

[Karolína Babická is a legal adviser with the International Commission of Jurists.]

The EU, in a historical move, has for the first time decided to activate the Temporary Protection Directive (TPD), immediately after the Russian aggression in Ukraine started on 24 February.  By 2 March there was already a proposal by the European Commission to activate the Directive, and on 4 March, the Council decided on its activation.

The TPD provides that all eligible for the temporary protection should be provided immediate protection and entitlements, including residency rights, access to the labour market, access to housing and education, social welfare assistance, medical or other assistance, and means of subsistence.

The scope of the Council Decision is broad enough to cover not only Ukrainian nationals, but also stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection (recognized refugees) in Ukraine prior to the outbreak of the war, and their family members. 

In addition, the Decision covers also all categories of third country nationals including, “long-term residents, in particular those who can prove that were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit (…) and who are unable to return in safe and durable conditions to their country or region of origin“ (Article 2.2). For this last category, discretion is granted to EU Member States as to whether to apply the Temporary Protection Directive or other “adequate protection under national law.“ 

Poland and Hungary once seem to be contriving to avoid applying the TPD and once again breach EU law. 

On 8 March, Hungary adopted the Government Decree 86/2022 (III. 7.) that repealed the existing temporary protection scheme and established a new one, only for Ukrainian nationals. Hungary decided to apply its discretion in relation to non-Ukrainian nationals who were residents of Ukraine.  But rather than providing adequate protection – it provides those fleeing the conflict with protection “in accordance with the general rules“ in Hungary – which in practice means no protection at all.

Under the general rules currently in place in Hungary (Government Decree 233/2020, Government Decree 292/2020), nobody has the right to apply for asylum, unless they travel first to a Hungarian embassy in Belgrade or in currently war-torn Kyiv; submit a “statement of intent“, wait for two months for a decision, and only in case the decision  is positive , would they be able to travel to Hungary and ask for asylum followed by the asylum procedure. 

It also seems that in practice, only very few people have so far applied the temporary protection in Hungary, and this deficit is linked to lack of information being provided to people fleeing Ukraine and overall lack of political will to provide the temporary protection. 

For anyone other than Ukrainian nationals, Hungary has been continuing its policy of illegal pushbacks from before the conflict and is not even trying to hide these practices.

During the last UN Human Rights Council session, the Hungarian Minister of Foreign Affairs and Trade, speaking at the high-level segment on 23 March,  said that Hungary distinguishes between two kinds of refugees and migrants. The first were “illegal immigrants“ from far away, who were “aggressive”, not cooperative, and “did not show respect towards Hungarian regulations or culture”, and so had no right to enter Hungary. The second were “refugees“ from Ukraine, who “waited patiently in line for hours, entered legally, cooperated with the authorities and were grateful for the help they are receiving”. A similar arbitrary distinction between “migrants“ and “refugees“ has been articulated by the Hungarian President Viktor Orbán as well.

Hungary makes an unsubstantiated and openly racist and discriminatory distinction among refugees based on their nationality. This is in breach of the Geneva Refugee Conventions, the non-discrimination and equal protection obligations under international human rights law (Article 26 International Covenant on Civil and Political Rights), and the EU’s right to seek asylum under article 18 EU Charter on Fundamental Rights. The illegal pushbacks are in breach of the principle of non-refoulement (Article 33 Geneva Refugee Convention, Article 3 Convention against Torture, Article 4 EU Charter on Fundamental Rights).

In addition, Hungary still keeps in force legislation criminalizing any help or support to refugees and migrants, even though such legislation has been condemned as breaching EU law by the Court of Justice of the European Union on 16 November 2021. In the judgement, the CJEU found that Hungary violated both the Procedures and Reception Directives of the EU, by allowing applications for asylum of those arriving in Hungary through ”safe transit country” to be rejected as inadmissible. The Court also found that Hungary had unlawfully criminalized the activities of those who provide assistance to asylum-seekers. 

In Poland, on 7 March 2022 a “Special Law“ was adopted which legalises the stay of Ukrainian citizens (and spouses of Ukrainian citizens) in Poland, who entered from Ukraine on or after 24 February 2022, in connection with military operations on the territory of that country. Here, stateless persons and beneficiaries of international protection, and their family members are completely omitted from the protective scope of the legislation, again in breach of the Council Decision on Temporary Protection, Article 2.1. 

At the same time, it does not seem that Poland has reversed the practices of ill-treatment and pushbacks of migrants at the Polish-Belarus border. In August 2021 the European Court of Human Rights indicated interim measures in respect of Iraqi and Afghan nationals at Belarussian border with Latvia and Poland. The Court said that the Polish and Latvian authorities should provide all the applicants with food, water, clothing, adequate medical care and, if possible, temporary shelter. This decision was ignored by Poland and in explaining their non-compliance with this order, the Polish authorities alluded to Poland’s supposed role as the “defender of Christian Europe”.

So in Poland, as well, the obligations stemming from international refugee and human rights law and EU law are not respected when it comes to the implementation of the Temporary Protection rules, while discriminatory double standards are reinforced. 

While Hungary and Poland keep breaching EU law, on top of its breach of the Common European Asylum system rules and a number of human rights treaties, they are now also failing to respect the Council Decision on Temporary Protection, by refusing to provide adequate protection to beneficiaries of international protection and third country nationals from Ukraine. 

Although the numbers of persons so far suffering exemption from such protection may at this stage not be that high, as a question of principle the Poland and Hungary seem prepared to flout their legal obligations, court rulings and humanitarian imperatives in order to preserve a policy of discrimination. Legislation clearly aimed providing protection only to Ukrainian nationals and no one else fits with the more general discriminatory approach and rhetoric by Poland and Hungary. 

The world gets to see these days the atrocities and injustices autocratic governments like the one in Russia can cause. The EU should ensure that its values, such as democracy and rule of law are protected more than ever within its territory. The EU must insist on respect of EU law, including the Temporary Protection rules by Hungary and Poland and start an infringement procedure as necessary.