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Max Planck Encyclopedia of Public International Law [MPEPIL]

Temporary Protection

Meltem Ineli-Ciger, Achilles Skordas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 February 2020

Subject(s):
Economic, social, and cultural rights — Asylum — Migrants, rights — Non-refoulement — Customary international law

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion

In a generic sense, temporary protection is a flexible tool of international protection, which offers sanctuary for a limited period of time to persons fleeing humanitarian crises.

B.  Evolution

The history of States offering refuge to civilians fleeing humanitarian emergencies at least on a temporary basis can be traced back to ancient times (see also Asylum, Territorial). Early examples of temporary protection practices are usually referred to as temporary refuge, which can be defined as ‘protection characterized by the principle of non-refoulement which is accorded to a person and which is temporary pending the obtaining of a durable solution’ (Coles 199). Britain and France granting temporary refuge to Republicans who fled the Spanish Civil War in the 1930s is cited as a classic example of temporary protection (Gibney 689). Other temporary protection practices in the second half of the 20th century include Austria granting temporary refuge to Hungarian and Czechoslovak refugees until their resettlement in other European States was arranged (following the Soviet interventions of 1956 and 1968 respectively), and India offering refuge to ten million persons from then–East Pakistan in 1971 (Perluss and Hartman 559, 564). One of the well-known temporary protection practices includes the Comprehensive Plan of Action (‘CPA’) arrangements under which thousands of people forcibly displaced from Indochina were granted temporary refuge in Indonesia, Hong Kong, the Philippines, Thailand, and Malaysia between 1989 and 1996 (Fitzpatrick 282). There have been many other temporary protection practices in Africa, Asia, Europe, the Middle East, and America throughout the 20th century (Perluss and Hartman 558–71).

The term ‘temporary protection’ replaced the term ‘temporary refuge’ in the 1990s. This change in the semantics meant that temporary protection began to denote a comprehensive framework that encompasses not just admission to the host States and non-return but also access to minimum standards of treatment (Edwards 600, 601). The dissolution of the Socialist Federal Republic of Yugoslavia (‘SFRY’) (Yugoslavia, Dissolution of) created the largest refugee crisis in Europe since World War II until the Syrian refugee crisis after 2011. Temporary protection in Europe, throughout the 1990s, was granted to those fleeing armed conflict and violence associated with the dissolution of the SFRY. European Union (‘EU’) Member States including Germany, Austria, and the Netherlands offered temporary protection to persons who were forced to flee their homes in Bosnia and Herzegovina and in Kosovo, in addition to other complementary protection statuses. Following the refugee crisis in Kosovo, the EU adopted Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection (‘Temporary Protection Directive’) in 2001. However, this Directive has never been implemented in practice (see section G below).

The Turkish practice offers a recent and significant example of temporary protection. Since 2011, the country has pursued an open-door policy based on a national temporary protection regime that protects more than 3.6 million Syrians who have fled civil war (UNHCR 2019). This legal regime includes the principle of non-refoulement, the right to education (Education, Right to, International Protection), and a limited right to work (Work, Right to, International Protection) as well as a number of core human rights (Ineli-Ciger [2017] 557–66). However, at the time of writing, it is still not clear when this temporary protection policy will come to an end and whether Syrians will be able to access individual status determination procedures for the conditional refugee and subsidiary protection statuses and durable solutions in Turkey. The intervention of Turkey in Syria in October 2019 and the creation of a safe zone in Northern Syria may lead to the return of a number of refugees to Syria, if the circumstances so permit in the future (Turkish Minister of Foreign Affairs Mevlut Cavusoglu), or may trigger more refugee flows, depending on the evolution of the conflict.

As is clear from the examples provided above, temporary protection is invoked as an emergency response to mass influx situations. There is no clear definition of a mass influx situation in international law. However, an analysis of the relevant literature and the practice of the United Nations High Commissioner for Refugees (‘UNHCR’) reveals the following indicators of mass influx: large-scale arrival of persons seeking refuge to host State(s), a rapid rate of arrivals, and inadequate reception and asylum-processing capacity of host State(s) (UNHCR ExCom Conclusion No 100 LV) (Refugees, United Nations High Commissioner for [UNHCR]). Mass influx situations usually create serious financial, social, and security-related challenges for host States and the vast number of persons seeking refuge usually overwhelms the asylum and reception capacities of host States. Temporary protection constitutes an interim regime for the management of mass influx situations for States that cannot cope with large-scale arrivals of asylum-seekers by implementing individual refugee status determination procedures.

Not all temporary protection regimes are established as a response to mass influx situations: other than the outlined examples, temporary protection sometimes refers to national protection statuses, which grant a time-limited protection for humanitarian purposes. The United States (‘US’) Temporary Protected Status (‘TPS’) is an example of this (Section 244 US Immigration and Nationality Act). TPS can be defined as a humanitarian protection status which grants relief from deportation for nationals of countries experiencing non-international armed conflict, natural disasters, or other extraordinary circumstances that pose a serious threat to personal safety, who are already present in the US at a certain date. For instance, TPS was designated for Hondurans and Nicaraguans in 1999 because of Hurricane Mitch, for Haitians because of an earthquake in 2010, for Syrians because of non-international armed conflict in 2012, and for Nepalese nationals because of an earthquake in 2014. The authority to determine the nationals of which countries will be eligible for TPS formerly rested with the US Attorney General, and now rests with the Secretary of the Department of Homeland Security (‘SDHS’). A different form of temporary protection exists in Australia: Subclass 785 Temporary Protection Visas (‘TPVs’) provide 3-year temporary resident permits to successful asylum-seekers who have arrived in Australia irregularly, but this is obviously not a policy tool for the management of mass influx situations.

C.  Structural Elements of Temporary Protection

The diversity of the national temporary protection regimes and the lack of any relevant instrument of universal application complicate the task of defining the main structural elements of temporary protection. Nonetheless, despite their differences temporary protection schemes share a number of common characteristics.

Despite their differences, all temporary protection regimes have at least one thing in common: providing protection on a temporary basis (Akram and Rempel 6). For instance, while according to the Temporary Protection Directive, temporary protection should continue for a maximum of three years, in the US TPS is granted for six to 18 months, but this can be further extended if the situation in the country of origin does not change (Section 244.1 (b) (2) and (3) US Immigration and Nationality Act). However, it should also be noted that TPS, in some cases, has been extended for decades by the SDHS; for example, some TPS holders including nationals of Honduras and Nicaragua have been holding this status for more than 20 years (USCIS [2019]). Ideally, repatriation should follow the termination of a temporary protection regime; as long as this is not possible (eg because the armed conflict continues), the persons concerned should be permitted to remain on the basis of refugee status, subsidiary status, or any form of tolerated status, or their stay should be regularized in terms of immigration law. Nevertheless, although there is no uniform State practice, temporariness can be identified as the first characteristic of temporary protection regimes.

Second, temporary protection applies not only to refugees as defined under Art. 1 A (2) Convention relating to the Status of Refugees (‘Refugee Convention’) but to a broader category of forced migrants (Fitzpatrick 291). The host State cannot ‘know’ whether the protected persons are refugees, as long as the procedure of individual recognition has been suspended or has not been finalized. Temporary protection beneficiaries usually include persons who are forced to flee their homes due to armed conflict, violence, gross and systematic human rights violations, external aggression, occupation (Occupation, Belligerent), foreign domination, or events seriously disturbing public order in either part of or the whole of the country of origin (Armed Conflict, International; Armed Conflict, Non-International).

10  Third, temporary protection usually offers group-based protection and therefore does not require individual status determination (Thorburn 465).

11  Fourth, temporary protection regimes customarily protect forced migrants who have reached or crossed the maritime or land borders of host States from refoulement (Coles 199).

12  Fifth, temporary protection schemes offer beneficiaries a basic minimum treatment but not all the rights of refugees as secured under the Refugee Convention (Fitzpatrick 280, 291; Yakoob 260). This basic minimum treatment usually consists of emergency accommodation and medical care as well as means of subsistence.

13  In view of the outlined five characteristics, temporary protection can be defined as an umbrella concept that describes a range of policies providing forced migrants protection from refoulement and at least basic minimum treatment until durable solutions are available.

D.  Temporary Protection and the Refugee Convention

14  There is a complex relationship between temporary protection and the Refugee Convention. In principle, it is difficult to accept that the Refugee Convention obliges States to grant temporary protection generally in instances of mass influx. Whilst formal protection must be granted if the groups concerned are persecuted during armed conflict for the reasons referred to in the Convention, a different approach via complementary protection (temporary or subsidiary protection) should be followed if this is not the case. Persons or groups that are not persecuted on account of Convention grounds, but flee as the result of indiscriminate attacks of an armed conflict are not refugees in the technical sense of the term (Indiscriminate Attack). In practice, it is difficult or impossible to make a generalized assessment due to the complexity of mixed migration movements. It is therefore possible that some individuals from a non-persecuted group are refugees and host States are obliged to protect them, if they reach their territories. Thus, the question is how to deal with the eventuality that there may be persecuted individuals in any situation of mass influx. The social necessity to extend protection to further groups in flight has led to proliferation of refugee or refugee-like regimes, as provided for indirectly in Art. 5 Refugee Convention (Skordas [2011] 16–32).

15  There is no denying that among the temporarily protected persons there are Convention refugees and for this reason temporary protection is a trade-off (Fitzpatrick 280): while States implementing temporary protection regimes keep their borders open to large numbers of persons seeking refuge from humanitarian emergencies such as those created by armed conflicts and respect the principle of non-refoulement, in return they suspend individual refugee status procedures and grant persons seeking refuge only the basic minimum treatment instead of the full set of rights of refugees secured under the Refugee Convention. When parties to the Refugee Convention implement temporary protection as a response to a mass influx situation, they usually suspend individual refugee status determination (‘RSD’) and Convention refugees who form part of large-scale influxes receive only temporary protection that offers them access to basic minimum treatment. Some scholars argue that this practice undermines the Refugee Convention (Fitzpatrick 280, 289; Akram and Rempel 14).

16  One key question, which should be addressed to determine whether temporary protection indeed undermines the Refugee Convention, can be identified as follows: Is derogation from the Refugee Convention permissible in mass influx situations? The Refugee Convention does not have a clear derogation clause though some consider its Art. 9 to contain one (Davy 783). The provision reads:

Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.

17  An analysis of Art. 9 Refugee Convention in view of interpretation rules contained in Arts 31 and 32 Vienna Convention on the Law of Treaties (1969) yields the following conclusions: the ordinary meaning of the text of Art. 9 does not clarify when provisional measures may be invoked, or whether a mass influx situation may justify derogation from or suspension of the application of the Refugee Convention (Edwards 622). An examination of the drafting process of the Refugee Convention reveals that, despite the UK’s proposal and insistence, the drafters rejected introducing a general derogation clause that would be applicable in mass influx situations during wartime or other crisis (Statement of Sir Leslie Brass of the United Kingdom [2 February 1950] UN Doc E/AC.32/SR.21; Grahl-Madsen 28; Hathaway 261). Therefore, a review of the Convention’s drafting works does not provide whether Art. 9 was intended to allow derogation from the Convention in mass influx situations (Weis 272).

18  Academic literature on this issue also reveals different views (Hathaway and Neve 159, 160; Durieux and McAdam 4–14; Goodwin-Gill and McAdam 448–50; Edwards 620–22; Ineli-Ciger [2018] 97–106). The Executive Committee of the High Commissioner’s Programme (‘ExCom’) and Durieux reject the view that derogation from the Refugee Convention is possible in mass influx situations (see ExCom Conclusions No 19, 22, and 100; Durieux [2014] 247, 248). McAdam and Durieux also oppose the view that derogation from the Refugee Convention is possible in mass influx situations; however they note that differentiation between the rights of ‘refugees lawfully present’, ‘refugees physically present’, and ‘all refugees regardless of their stay’ and in the Convention gives States a certain amount of discretion in mass influx situations not to grant some of the rights contained therein (Durieux and McAdam 14, 15). While Grahl-Madsen notes that provisional measures under Art. 9 should be restricted to individuals and should not include large-scale measures against groups of refugees, Davy opposes this argument noting that neither the language of Art. 9 nor the intention of the drafters supports Grahl-Madsen’s view (Grahl-Madsen 28; Davy 800). On the other hand, Edwards contends that Art. 9, when read in conjunction with Art. 8 Refugee Convention, allows States to suspend their obligations towards groups, though she adds that the rights enshrined in Arts 3, 4, and 33 Refugee Convention are exceptions to this (Edwards 623, 624). Taking a different perspective, Hathaway argues that States can justify the suspension of the application of the Refugee Convention in mass influx situations only if this general suspension is essential in response to an extremely compelling threat to national security (Hathaway 267). Because there is no mention of mass influx situations in Art. 9 Refugee Convention and it is not clear from the text what the provisional measures mentioned in Art. 9 are, and because different views were expressed in the drafting works of the Convention, the possibility that mass influx situations may justify derogation under Art. 9 Refugee Convention cannot be disregarded (Ineli-Ciger [2016] 292).

19  If it is accepted that derogation is not permissible and there is no possibility for signatories to the Refugee Convention to suspend any of their obligations, this creates an unfair burden to those States facing a mass influx situation, in particular States that are closest to the country of origin and those that do not implement non-entrée policies. When it is accepted that derogation is permissible and signatories to the Refugee Convention can suspend their obligations under this Convention, it becomes necessary to clarify when derogation can be justified, which State obligations can be suspended, and until when. Since the answers to these questions remain unclear, one should examine each and every aspect of the temporary protection regime including eligibility for temporary protection, rights and entitlements of the temporarily protected persons, duration of temporary protection, and termination of temporary protection in view of obligations of each host State before determining whether the specific temporary protection regime undermines the Refugee Convention.

E.  Temporary Protection and Customary International Law

20  The legal grounding of temporary protection in customary international law (‘CIL’) remains largely undefined or unsettled (UNHCR Roundtable on Temporary Protection). The principle of non-refoulement is generally accepted as the core principle that temporary protection is built upon (Coles 199; Thorburn 477) though for some authors the principle of temporary refuge constitutes the legal foundation for formalized temporary protection regimes (Goodwin-Gill and McAdam 290). Thus, the relationship between temporary protection and CIL involves two questions: first, the distinction between temporary protection and temporary refuge, and second, the function of the principle of non-refoulement within the temporary protection.

21  Temporary refuge is not equal to temporary protection. Temporary refuge can be accepted as one of the principles that temporary protection regimes are built upon. Different from temporary refuge, temporary protection includes not just admission and non-return but also minimum standard of treatment as well as a limited set of rights for the temporarily protected persons (Edwards 601).

22  There is no clear definition of temporary refuge. Perluss and Hartman defined temporary refuge in 1986 as a principle that ‘prohibits a State from forcibly repatriating foreign nationals who find themselves in its territory after having fled generalized violence and other threats to their lives and security caused by internal armed conflict within their own State’ (Perluss and Hartman 554). According to Perluss and Hartman, temporary refuge that comes into play when there is a mass influx of civilians fleeing an armed conflict has become a customary norm (Perluss and Hartman 557). In a similar vein, Goodwin-Gill argued that temporary refuge, which incorporated a duty to admit and not to return, has become a part of customary international law (Goodwin-Gill 458). By examining the responses of Turkey, Lebanon, and Jordan to the Syrian influx, Lambert asserted that temporary refuge, which obliges all States to admit and not to return anyone to a situation where there is a risk to life, is customary law (Lambert 25). For these authors it is clear that temporary refuge is required by CIL. However, despite these endorsements, it might still be early to conclude that temporary refuge has become a customary norm. This is because although there is general, sufficiently widespread, and representative State practice on not returning persons to the situations of armed conflict where they would face immediate harm to their life and bodily integrity, it is less clear whether there is a general, sufficiently widespread, and representative State practice and opinio iuris on the duty of States to admit persons arriving to their territories in mass influx situations (Ineli-Ciger [2018] 87). For this reason, more evidence of State practice and opinio iuris is necessary, if the obligation to admit forced migrants, in particular persons fleeing armed conflict in mass influx situations, is to become part of CIL. Similar to temporary refuge’s status in international law, it might be too early to conclude that temporary protection is explicitly required by CIL.

23  Yet this is not the case for the principle of non-refoulement, which can be accepted as an intrinsic part of temporary protection. The principle of non-refoulement, which is one of the most important safeguards that the Refugee Convention offers to refugees, is enshrined in Art. 33 Refugee Convention. The provision provides that refugees are not to be returned to the territories of another State where their life or freedom would be threatened on account of their race, religion, nationality, or membership of a particular social group or political opinion. When refugee status determination procedures are suspended for various reasons including mass influx situations, Art. 33 should protect all asylum-seekers from refoulement until RSD processing is resumed and a final decision regarding their refugee status is reached. This means that the Contracting Parties to the Refugee Convention are obliged not to return persons seeking refuge at their borders to the country of origin or any other State where they would be at risk of persecution until their asylum applications are processed and a final decision is rendered (Kälin Caroni and Heim 1359, 1360). Today, prevailing scholarly opinion holds that the principle of non-refoulement has become a customary norm (Kälin Caroni and Heim 1344; Lauterpacht and Bethlehem 149; Goodwin-Gill and McAdam 347, 354).

F.  Temporary Protection and UNHCR

24  UNHCR plays an instrumental role in coordinating responses to mass influx situations, and temporary protection has usually been a crucial part of these responses. UNHCR regards temporary protection as a pragmatic tool of international protection, reflected in States’ commitment and practice of offering sanctuary to those fleeing humanitarian crises (UNHCR Guidelines on Temporary Protection para. 3). According to UNHCR, temporary protection complements the international refugee protection regime and is being used to fill gaps in that regime as well as in national response systems and capacity, especially in non-Convention States (UNHCR Guidelines on Temporary Protection para. 3).

25  A number of ExCom Conclusions including Conclusion No 19 and Conclusion No 22 focused on temporary protection and called on States to at least provide temporary refuge to persons seeking protection in large-scale influx situations. Due to the increasing relevance of temporary protection in responding to recent forced migratory movements in Africa and the Middle East, UNHCR gave priority to its work on temporary protection: in 2012 and 2013, UNHCR organized two Roundtables on Temporary Protection, which aimed to identify the scope and minimum standards of temporary protection, and published its ‘Guidelines on Temporary Protection or Stay Arrangements’ in 2014.

26  UNHCR’s Guidelines on Temporary Protection of 2014 provide important guidance to States on entry and reception, minimum standards of treatment, and termination of temporary protection as well as cooperation in mass influx situations. The Guidelines prescribe documented permission to stay and nondiscriminatory, humane, and dignified treatment including guarantees of shelter/housing, education, and access to health and other basic services among minimum treatment of temporary protection beneficiaries (paras 12–18) (Housing, Right to, International Protection; Health, Right to, International Protection; Human Dignity, International Protection). Moreover, the Guidelines recommend that States grant temporarily protected persons the freedom of movement and pay special care and attention to unaccompanied children and persons with special needs (para. 16) (Movement, Freedom of, International Protection; Children, International Protection). Though the UNHCR Guidelines do not foresee a maximum time limit for temporary protection, they encourage States to identify and implement durable solutions as early as possible (para. 19). Finally, the Guidelines emphasize that international cooperation is an essential component of temporary protection policies (para. 23). Nevertheless, the UNHCR Guidelines do not call for the formalization or harmonization of temporary protection practices on the regional or international level (Unification and Harmonization of Laws).

27  The Guidelines, despite possessing the outlined positive traits, have a number of shortcomings with regard to their capacity to advance normative developments (Ineli-Ciger [2018] 202). First, they are general: they provide guidance not just on how to deal with large-scale influxes of asylum-seekers or other similar humanitarian crises, but also with complex or mixed cross-border population movements including boat arrivals and rescue-at-sea scenarios. These are quite different instances, which are usually subject to different legal regimes and therefore require distinctive action; addressing these under one guideline can be problematic. Second, the UNHCR Guidelines do not specify whether, and how, the proposed system is in line with the Refugee Convention. Third, the UNHCR Guidelines do not explain the legal grounds of the proposed provisions or provide the rationale for the specific proposed provisions. Fourth, the UNHCR Guidelines do not prescribe a maximum time limit for temporary protection practices whilst this is quite crucial and relevant for the protection of millions of people receiving temporary protection around the world. A final shortcoming can be identified as the fact that the Guidelines do not recommend that the temporary protection regimes be terminated in light of the cessation clauses provided in the Refugee Convention. The pragmatic character of the Guidelines constitutes an impediment for their potential value as triggers of custom.

G.  The 2001 Temporary Protection Directive and Relocation Decisions in EU Law

28  Following the wars in Yugoslavia in the 1990s, and in particular after the war in Kosovo, the EU adopted Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection (‘Temporary Protection Directive’). The Directive pursued two main objectives: ‘to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons’ and ‘to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons’ (Art. 1). In line with these objectives, the Temporary Protection Directive established minimum standards for giving temporary protection in the event of a mass influx of displaced persons and formalized temporary protection on a supranational level. The Directive provides for the granting of protection in situations of mass influx to specific groups that are displaced from non-EU countries and are unable to return to their country of origin. The protected persons have fled areas of armed conflict or endemic violence, or have been the victims of systematic or generalized violations of their human rights. The existence of a mass influx is determined by the Council with a qualified majority, and the protection can last for a maximum of three years (see Skordas [2016] 1061).

29  The Directive has never been implemented, but, instead, a variety of new instruments were used for the ad hoc management of the mass inflow of migrants and refugees to Europe via the Southern Mediterranean and the Balkan route in 2015. As Greece and Italy were the two countries that were particularly affected by the inflows, the Council adopted two Decisions on provisional measures in September 2015 providing for the relocation of 160,000 persons in need of international protection to the other Member States. Following applications from Slovakia and Hungary against the Council of the EU, the Court of Justice of the European Union decided that the acts adopted by the Council were justified as measures of emergency governance (Joined Cases C-643/15 and C-647/15). Overall, and in view of the threats in its geopolitical environment, the EU and the Court adopted a ‘realist approach’ in the management of migration inflows (Skordas [2018] 408–13, 424–35).

H.  The Future of Temporary Protection and the ‘Managerial Turn’

30  In 2016, the United Nations General Assembly (United Nations, General Assembly) initiated a process for the better management of migration flows and the protection of refugees (UNGA ‘New York Declaration for Refugees and Migrants of 19 September 2016’) that led to the adoption of the ‘Global Compact for Safe, Orderly and Regular Migration’ (2019) and the ‘Global Compact on Refugees’ (2018). These texts appear to marginalize temporary protection, as the term appears only once in the New York Declaration and in the Global Compact on Refugees. However, what appears to be a marginalization or absence of temporary protection from policy texts is actually an expression of its informality. Indeed, the centre of gravity of the United Nations (UN) action has now shifted from classical individual protection towards the management of migration and refugee flows, and therefore temporary protection has implicitly become a major tool for the implementation of such policies.

31  The Global Compact on Refugees talks about ‘protracted refugee situations’, ‘large refugee movement’, refugee situations which are ‘increased in scope, scale and complexity’, ‘predictable and equitable burden- and responsibility-sharing’, and ‘context-specific support for refugees and concerned host States and communities’. Taken together with the UNHCR Guidelines on Temporary Protection of 2014, these terms indicate a ‘managerial turn’ in refugee protection, with temporary protection as one of its pillars. The response to the mixed migration flows cannot be limited to the application of the rules and principles of the Refugee Convention and to the recognition of individual refugee status under the jurisdiction of the first State of arrival. Other measures are necessary as well, including relocation or resettlement in third countries that are willing to participate in such efforts. Therefore, for asylum-seekers, the first country of arrival may only offer temporary protection awaiting a permanent solution. The principles of burden-sharing and solidarity require that the State of first arrival should not be the only State responsible to host all successful asylum-seekers. What is expected of the State of first arrival is to host asylum-seekers and refugees temporarily until an appropriate solution for their relocation or resettlement is found. The centre of gravity of international protection shifts from individual protection under the territoriality principle towards the management of migrant flows in terms of distribution of those in need of protection among States willing to share the burden and responsibility. In this new ‘state of affairs’, temporary protection at the initial stage is a constituent element of the system.

32  This is a core feature of the current State of refugee protection: the larger the inflow of migrants and refugees, and the more the rationale of management enters into the foreground, the more States have to rely on informal measures of temporary protection, at least initially. These developments have opened a new era of normatively softer and more flexible forms of protection and migration management, but it remains to be seen whether these developments will be adopted more broadly. The Memorandum of Understanding between the UNHCR, the African Union (AU), and Rwanda for the evacuation of migrants from Libya and their temporary protection in Rwanda is a measure in this direction (UNHCR ‘Joint Statement’ [2019]).

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