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The Temporary Protection Directive for the People Fleeing the Armed Conflict in Ukraine : An examination of the state obligation to provide adequate housing standards

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The Temporary Protection Directive for the People Fleeing the Armed Conflict in Ukraine : An examination of the state obligation to provide adequate housing standards

Since the beginning of the Russian military invasion of Ukraine on the 24th of February 2022, millions of people have been forced to leave their country, causing a record-high number of displaced persons seeking protection in the EU. To ensure the capability of the EU Member States to process the high number of expected asylum applications, the Council of the European Union activated the Temporary Protection Directive (TPD) for the first time in history on the 4th of March 2022. Temporary protection schemes are emergency tools for offering immediate protection to those fleeing a humanitarian crisis. Persons eligible for protection are provided with instant rights, with only a few formalities and without individual status determination. Whereas the core of refugee protection, the Geneva Convention Relating to the Status of Refugees (1951 Convention), requires individual status determination and has thus been characterised as slow and incapable of answering the problems contemporary migration causes. However, the TPD has faced criticism for leaving those protected under it outside the refugee protection of the 1951 Convention and hence offering low protection standards and insufficient human rights protection. Currently, several Member States are facing severe problems establishing suitable housing conditions for those protected by the TPD. However, the present mass influx of displaced persons is not a new phenomenon. During 2014 and 2015, a high volume of persons sought refuge in the EU, resulting in the overburdening of the national asylum systems, negatively impacting the rights of the asylum seekers. Numerous countries struggled to provide adequate or humane living conditions, leading to violations of Article 3 on the prohibition of inhumane or degrading treatment in the European Convention of Human Rights (ECHR). Nevertheless, EU Member States are obliged to provide refugees and asylum seekers with minimum standards on housing under the Reception Conditions Directive (RCD) and to ensure human rights protection by the conventions they ratified. Even with the activation of the TPD, Member States must provide human rights protection under international human rights conventions. Yet, the question arises of what obligations the EU Member States have in applying suitable housing conditions for the persons protected by the TPD under applicable EU law and international human rights law. To define this, an examination of the EU legal framework is essential. The thesis begins by analysing the protection of fundamental rights in the EU by clarifying the essential relationship between the EU and ECHR and how it affects EU law. The analysis is followed by an interpretation of the rights granted in the CFR. As the thesis shows, the Court of Justice of the European Union (CJEU) has established significant case law on housing standards, highlighting the notion of human dignity. Lastly, a comparison between the RCD and the TPD is conducted to identify the content of housing standards. Nevertheless, the RCD is not directly applicable to those seeking protection under the TPD, but it provides essential insights into the substance of the right. As noted, the ECHR has an essential role in the human rights protection of the EU. Hence, the third chapter devotes to the case law established by the European Court of Human Rights (ECtHR) on housing conditions. The case law emphasises the absolute right to be free from ill-treatment and, more restrictively, on Article 8 of the ECHR on the right to respect for private and family life. The paper seeks to clarify what conditions constitute a violation of the prohibition of ill-treatment and what conditions fall under the scope of Article 8. The discussion is further advanced by analysing the provisions of the right to adequate housing, guaranteed in Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in Article 31 of the Revised Social Charter (RESC). The two Articles provide several positive obligations for the state parties. These positive obligations are analysed together with the General Comments by the Committee on Economic, Social, and Cultural Rights (CESCR) and by the case law of the European Committee of Social Rights (ECSR). Although to realise the right, states may only have to provide some positive obligations. The relationship between minimum standards and positive obligations is complex, yet they provide essential content on the obligations of Member States under Article 13 (1) of the TPD.

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