EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Dr Meltem İneli Ciğer, Assistant Professor, Faculty of Law, Suleyman Demirel University.

Russian armed forces launched a large-scale invasion of Ukraine on 24 February 2022. Russia’s aggression in Ukraine intensified as the days went by and the number of displaced persons grew rapidly. The Council of Ministers for Justice and Home Affairs’ meeting on 27 February concluded that “The Commission proposed activating the mechanism provided for by the 2001 directive on temporary protection. There were expressions of broad support for this measure, which will be submitted to the JHA Council without delay.” The Council adopted a decision unanimously establishing the existence of a mass influx of displaced persons from Ukraine and activated the Temporary Protection Directive 2001/55/EC (TPD) on 4 March 2022. This was the first time the TPD was activated since its adoption in 2001 and one may wonder why.

A personal Account of the Temporary Protection Directive and its non-implementation

I started working on temporary protection in 2011 when I began my Ph.D. at the University of Bristol. Over the years, I have questioned why the Temporary Protection Directive has not been implemented to respond to mass displacements from Tunisia and Libya following the Arab Spring and when nearly one million asylum seekers and migrants arrived in the Greek shores mostly Syrians fleeing the civil war in 2015. I had the opportunity to work alongside many great experts when the Study on the Temporary Protection Directive upon the initiative of the European Commission was being prepared and get to learn first-hand what the Commission, the Parliament, UNHCR, asylum NGOs, and academics thought of the Directive. So when I published my monograph, which was a revised version of my Ph.D. thesis, ‘Temporary Protection in Law and Practice’ in 2018, I was confident that there were six reasons behind the non-implementation of the Directive:

• Mass influx was defined quite vaguely in the TPD and there were no clear objective indicators of a mass influx situation (this, in the end, proved not to be an issue since the Commission decided that a mass influx existed and proposed to activate the TPD a few days after the conflict in Ukraine began).
• The activation mechanism of the TPD required lengthy procedures and was quite complex (this, in the end, proved not to be an issue as well since the Council adopted the Commission’s proposal to activate the TPD in a few days on 4 March 2022)
• It was difficult to secure a qualified majority vote in the Council in the face of an influx situation, which only seriously affected a limited number of Member States (in other words, political unwillingness) (as of 5 March, most displaced persons fled to 4 MS: Poland (756,000), Hungary (157,000), Slovakia (101,000) and Romania (63,000) but this did not prevent the activation of the TPD)
• Many MS believed that activation of the TPD may create a ‘pull factor’ for migrants seeking entry to the EU
• The TPD included adequate and fair level of rights for the protection beneficiaries: according to the Study on the Temporary Protection Directive, some Member States found this level of rights high hence can be reluctant to activate the TPD
• Many MS believed that asylum systems of the Member States can handle the arrival of significant number of refugees and migrants with the support of the EU institutions without activating the TPD.

I thought these were the main reasons why the Temporary Protection Directive has never been implemented and owing to these reasons that it would remain obsolete. So, it was not a surprise when the Commission concluded in 2020 that “Council Directive 2001/55/EC no longer responds to  the  current  reality  of Member  States  and  needs  to  be  repealed”  and proposed as part of its New Pact on Migration to introduce ‘immediate protection’ in the Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum, instead. Once, I was nearly sure that the fate of the TPD was sealed. How wrong I was. The events of the last two weeks show one thing: the six reasons I came up with over the years (and listed above) all boiled down to one reasoning: the TPD was not implemented before 2022 because the Commission and the Council simply had no political will to activate it.

I argued previously that “The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations. Refugees and persons fleeing armed conflict, violence, and human rights violations can be protected within the Directive’s framework for up to three years. The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification.” For these reasons, I truly believe due to its flexible eligibility criteria and its broad personal scope, its fine harmonisation and formalisation of the protection standards to be offered to temporarily protected persons, as well as its voluntary-based burden-sharing mechanism, that the TPD is the right framework to respond to the mass displacements from Ukraine. But the question is not why the TPD is activated within the context of the displacement from Ukraine, but why the TPD was not activated before.

1. Ukrainians are Europeans but Syrians, Afghans, Tunisians, Libyans, Iraqis were not

In 2011, the violence and conflicts which followed the fall of former President Zine el-Abidine Ben Ali compelled many Tunisians to flee. The fall of the Qaddafi regime in Libya and the NATO intervention also increased the number of asylum-seekers arriving at European shores; according to the Commission, 650,000 persons had fled Libya due to armed conflict and violence. Alarmed at the number of persons arriving in Italy, MEPs called on the Commission to propose activating the TPD in 2011, but the requests made by the Italian and Maltese governments were rejected in the Justice and Home Affairs Council meeting on the basis that the conditions for activation were not met.

In 2015, nearly one million refugees and migrants arrived irregularly in Europe by sea whereas according to UNHCR more than 4,000 people have lost their lives while trying to reach the European shores.  In 2015, MP Elisabetta Gardini asked the Commission whether it agreed that the legal conditions for triggering the Temporary Protection Directive had been met in view of the Syrian conflict and ensuing crisis in the Mediterranean and, hence, a proposal to the Council had to be submitted.  However, once again, the Directive was not implemented.

Europe’s double standard for the treatment of asylum seekers and refugees depending on where they come from is well-documented. (see here and here) The different treatment of Ukrainians and persons from other nationalities at the Polish Border last week is a recent example showing how the treatment of persons seeking refuge at the European borders is discriminative. In the words of Lorenzo Tondo, a journalist reporting on the Ukraine Border:“I look on as the soldiers help Ukrainian women and children with their heavy luggage. I watch as they play with the children and caress their faces. As the scene unfolds, I can’t help but think that this is the same border force which, for months, a short distance north, along the same eastern border, has been violently pushing back asylum seekers from Syria, Iraq and Afghanistan who attempt to cross the frontier from Belarus. It is the same border force which, instead of offering a caring touch and a comforting smile, brutally beat the refugees from Aleppo, who are also victims of Vladimir Putin’s bombardments. In Przemyśl, the Ukrainians are served hot drinks. At the Belarusian border, at least 19 migrants have died in the frigid forests.”

Not very different from views expressed by Amnesty International, Global Detention Project, and Peers, I suggest here that the TPD is activated unanimously this week because Ukraine is acknowledged as a European country and the Ukrainians are white Christian Europeans. This is unfortunately also reflected, to an extent, in the Council Implementing Decision 2022/382 . According to this Decision (para 11 of the Preamble), the following categories will receive temporary protection in the EU:

• Ukrainian nationals residing in Ukraine who have been displaced on or after 24 February 2022 as a result of the military invasion by Russian armed forces
• Nationals of third countries other than Ukraine, who have been displaced from Ukraine on or after 24 February 2022, and who were benefiting in Ukraine from refugee status or equivalent protection before 24 February 2022.
• Family members of those persons, where their families were already in, and residing in, Ukraine at the time of 24 February 2022.

Granting Ukrainian nationals and refugees residing in Ukraine temporary protection is the right move however, asylum seekers, stateless persons and TCNs staying legally in Ukraine such as students are missing from the scope of temporary protection. Although the Member States are encouraged to expand temporary protection to stateless persons, asylum seekers, and other TCNs residing legally in Ukraine who are unable to return in safe and durable conditions to their country or region of origin, there is no obligation to do so. This decision also, to an extent, reflects the double standards which were at play during the non-implementation of the TPD.

2. Ukrainian displacement is a result of Russia’s unjustified aggression

The TPD was not activated when large number of displaced persons from North Africa following the Arab Spring fled to Italy and Malta. The Directive was also not activated when thousands have fled the civil war in Syria and sought refuge in the Union by risking their lives. The mass displacement from Ukraine is a result of Russia’s unjustified aggression. Russia’s invasion has harmed civilians, women, and children and displaced more than a million Ukrainians in less than two weeks and violated Art. 2(4) of the UN Charter. Russia invaded Ukraine due to “Ukraine’s move towards the European Union and the West’s defensive military alliance, NATO”.  Thus, the EU has a direct interest in this conflict and sympathy for the Ukrainians and their fight against the aggressor.

In the Commission Proposal, one of the reasons given to prove that temporary protection is the appropriate instrument to respond to the Ukrainian displacement was the extraordinary and exceptional nature of the military invasion of Ukraine by Russia. Similar statements can be found in the Council Implementing Decision 2022/382  (Preamble para 3 and 4) which notes: “Following the invasion, which seeks to undermine European and global security and stability, the European Council, condemned Russia’s unprovoked and unjustified military aggression against Ukraine in the strongest possible terms, underlining the gross violation of international law and the principles of the United Nations Charter. The Union has shown, and will continue to show, its resolute support for Ukraine and its citizens, faced with an unprecedented act of aggression by the Russian Federation. This Decision forms part of the Union’s response to the migratory pressure resulting from the Russian military invasion of Ukraine.” These references imply that activating the TPD was a response to the Russian military invasion of Ukraine. If the aggressor was a state other than Russia, it is doubtful whether the EU would have activated the TPD.

3. The speed and scale of large-scale arrivals justified activation of the TPD

Article 2 (d) of the TPD defines mass influx means “arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme”. There is no clear indication in this article or in the TPD of what constitutes a mass influx. A number of indicators have been put forward. For instance, Skordas argued that the change in the absolute number of arrivals over a certain time period, the number of Member States affected by the arrivals as well as the ratio between the number of arrivals, the population, and resources of the Member States were among these indicators. Similarly, the Study on the Temporary Protection Directive proposed the following indicators to be taken into account: an absolute number of asylum applicants arriving per day/week/month; increase in arrival as opposed to previous periods; the number of applications to be processed vs the number of case workers in function; the occupancy rate of reception facilities in the Member States as well as population, GDP, and the unemployment rate of the Member States receiving the arrivals.

In the context of displacement from Northern Africa in 2011, UNHCR declared the number of refugees and migrants who had arrived in Lampedusa by sea between 29 January and 21 September 2011 as 55,298 (27,315 from Tunisia and 27,983 from Libya). Although at the time, Italy’s asylum and reception capacity was clearly overwhelmed, perhaps the number of arrivals in 2011 did not warrant activation of the TPD. In 2015, the number of asylum seekers and migrants crossing the Mediterranean increased steadily from around 5,500 in January to reach a monthly peak in October of over 221,000. One million persons have fled to the EU irregularly by sea that year whereas, according to EASO, in 2015, EU+ countries registered 369 871 applications lodged by Syrians, 190,013 applications lodged by Afghans, 125 529 applications lodged by Iraqi citizens. These figures suggest that the TPD could be easily activated for the protection of Syrians. However, there is no denying that compared to the arrival of Syrians to the EU in 2015, displacement from Ukraine is much more rapid and the number of displaced persons is expected to be significantly higher.

Russia’s invasion of Ukraine began on 24 February and by the beginning of March, more than 650 000 displaced persons arrived in the Union through Poland, Slovakia, Hungary, and Romania. According to UNHCR more than 1,2 million people have left Ukraine to seek refuge in other countries since 24 February 2022. These figures show that more than a million persons have fled Ukraine to seek refuge over a 10-day period. The speed and scale of arrivals have been indeed significant. Although the Council Implementing Decision 2022/382 does not exactly provide clearly which were decisive elements for identifying the mass influx situation, when one reads along the lines, especially para 1-10 of this Decision, the following elements can be identified as decisive in determining the existence of the mass influx situation:

• arrival of more than 650 000 displaced persons in the Union from Ukraine through Poland, Slovakia, Hungary, and Romania by 1 March 2022
• the likelihood of high migratory pressure on EU’s Eastern borders (The Decision notes that “the Union is likely to be faced with a very large number of displaced persons, potentially between 2,5 million and 6,5 million as a consequence of the armed conflict, of whom it is anticipated that between 1,2 and 3,2 million would be persons seeking international protection”)
• estimation that half of the Ukrainians coming to the Union benefitting from visa-free travel for short-stays would join family members or seek employment in the Union, whilst the other half could request international protection
• a clear risk that the Member States’ asylum systems will be unable to process the arrivals without adverse effects on their efficient operation and on the interests of the persons concerned and on those of other persons requesting protection.

By reviewing the Council Implementing Decision 2022/382, one may conclude that the Council when determining the existence of a mass influx situation took into account: a) the number of arrivals, b) the rate of arrivals, c) potential migratory pressures, d) Ukrainians not needing a visa to arrive in the MS, d) potential inability of asylum systems of MS to cope with the mass arrivals.

4. Ukrainians can enter the EU territories and seek refuge

It is quite difficult for persons fleeing conflict and violence to enter the EU territories legally: the Member States often close down their diplomatic representations in war-torn countries and “for nationals of these countries, obtaining a visa to enter the EU is nearly impossible”. Moreover, the EU law and/or the ECHR does not oblige MS to grant a visa to TCNs and stateless persons fleeing conflict or violence in view of applying for asylum upon their arrival in the Member State. (see X and X v Belgium ECLI:EU:C:2017:173;  M.N. and Others v. Belgium [GC], Judgment of 5 May 2020). Although TCNs can apply for protection at the external borders, it is well known that the EU’s attempts to externalise its asylum policy to third states such as Turkey and the well-documented pushback practices make it difficult to seek asylum in the EU. Thus, for a Syrian, Afghan or Iraqi asylum seeker entering the Union territories legally or even approaching the EU border is very difficult and this lessens the number of displaced persons arriving in the EU and makes the activation of the TPD more difficult.  As opposed to this, both the Commission Proposal and the Council Implementing Decision  make many references to the fact that “Ukraine is a visa-free country for entry into the EU.” Ukrainian nationals are free to cross the Union’s external borders for stays of no more than 90 days in any 180‑day period.  The EU opened their borders to those fleeing the conflict in Ukraine, not implemented pushback or non-entrée policies, and/or concluded a deal with a third country to stop new arrivals and this meant more Ukrainians could seek protection in the EU (as it should be) and this facilitated the activation of the TPD.

5. No third country to stop arrival of displaced persons

 When more than one million refugees and migrants arrived irregularly in Europe by the sea in 2015, the EU’s response was not to open borders or to activate the TPD but to conclude a non-binding declaration with Turkey to stop arrivals.  On 18 March 2016, the EU and Turkey adopted the EU-Turkey Statement that had the purpose to end irregular migration from Turkey to the EU. In particular, the EU and Turkey agreed that all ‘new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.’ According to the Statement, Turkey will take any necessary measures to prevent the opening of any new sea or land routes for illegal migration from Turkey to the EU, and would cooperate with neighbouring states as well as the EU to this effect. In return for Turkey’s efforts to stop irregular migration, the EU agreed to allocate € 6 billion under the EU Facility for Refugees in Turkey.

When faced with the large-scale arrival of TCNs, most of them coming from refugee-producing countries such as Syria in 2015, the EU’s response was not to open borders but to close them. The EU managed the so-called 2015 migrant crisis by adopting a migration deal with a third country, namely Turkey, which hosts more than 4 million refugees and asylum seekers. In the case of Ukraine, the country has a direct land border with Romania, Poland, Slovakia, and Hungary and there is no third country where the EU can make a migration deal to stop the arrival of asylum seekers and to return them.

Conclusions

Activation of the TPD to respond to large-scale influx from Ukraine was the right move and it will provide many benefits to those seeking refuge as well as the Member States. One only hopes that Russia’s invasion of Ukraine ends soon, it becomes safe for Ukrainians to return to their homes and the time comes to terminate temporary protection. Yet, one only hopes that refugees coming from countries such as Syria, Afghanistan and Iraq would also be protected in a similar manner without pushbacks and barbwires and with open borders.

Further reading

Arenas N., ‘The Concept of Mass Influx of Displaced Persons in the European Directive Establishing Temporary protection’ (2005) 7 EJML 435

Fitzpatrick, J. ‘Temporary protection of refugees: elements of a formalized regime’ (2000) 94(2) AJIL 279

Ineli-Ciger, M., ‘Time to activate the Temporary Protection Directive: Why the Directive can play a key role in solving the migration crisis in Europe’ (2016) 18(1) EJML 1

Ineli-Ciger, M., (2015). Has the Temporary Protection Directive Become Obsolete?: An Examination of the Directive and its Lack of Implementation in view of the Recent Asylum Crisis in the Mediterranean. In Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill 2015) 223

Ineli-Ciger, M., Temporary Protection in Law and Practice (Brill 2018)

Kerber, K., ‘The Temporary Protection Directive’ (2002) 4 EJML 193

Kjaerum, M., ‘Temporary Protection in Europe in the 1990’s’ (1994) 6 IJRL 444

Odysseus Network, Dırective 2001/55 Temporary Protection Synthesis Report By Gregor Noll & Markus Gunneflo (2006) < https://odysseus-network.eu/wp-content/uploads/2015/03/2001-55-Temporary-Protection-Synthesis.pdf>

Peers, S., Temporary Protection for Ukrainians in the EU? Q and A, EU Law Analysis, 27 February 2022, http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html

Skordas, A., Temporary Protection Directive 2001/55 in: D. Thym and K. Hailbronner (eds.) EU Immigration and Asylum Law (Nomos 2022) 1177