image_printPrint this article

By Jessica Schultz, Senior researcher at Chr. Michelsen Institute, Kari Anne Drangsland, Postdoctoral Fellow at the University of Bergen, Marry-Anne Karlsen, Researcher at the University of Bergen,  Julia Kienast, Postdoctoral Researcher at Aarhus UniversityNikolas Feith Tan, Senior Researcher at the Danish Institute for Human Rights and Jens Vedsted-Hansen, Professor at Aarhus University.

Researchers in the TemPro project: Temporary Protection as a Durable Solution? The ‘Return Turn’ in Asylum Policies in Europe

The Russian invasion of Ukraine has raised urgent questions concerning how European countries should respond to people fleeing the war. While the initial response seems to be one of open borders and expressions of solidarity, calls to provide collective, temporary protection have been buzzing from Brussels to Oslo. The Council of the European Union unanimously decided on March 4 to activate, for the first time, the 2001 Temporary Protection Directive (TPD). In Norway, meanwhile, the government has decided to apply a long-dormant provision in the Immigration Act, §34 on ‘collective protection’. In Denmark, the government is preparing special legislation based on the TPD.

Who is fleeing the war in Ukraine? 

At the time of writing, over 2 million people have fled the Russian invasion. With Ukrainian adult males subject to the military draft, the first groups of refugees have mostly been women, children, the elderly and foreign nationals. Among the foreign nationals in the immediate outflow are non-Ukrainians from a diverse array of countries, including Moroccans, Chinese, Indians, Latin Americans amongst others, some of whom had been attending Ukrainian universities. At the start of the war, at least 5,000 refugees from countries such as Afghanistan and Syria were also living in Ukraine. There have been worrying reports of racist treatment of Black, South Asian and Mediterranean refugees at the border with Poland. 

While most refugees so far remain in countries at Ukraine’s borders – Poland, Hungary, Romania, Moldova or Slovakia – this could change as the war develops. Estimates by the European Union and the United Nations suggest that potentially 4 to 7 million people could become displaced outside the borders of Ukraine. Even before the war started, more than 850,000 people  displaced by conflict, 5,000 refugees and 36,000 stateless people needed, according to UNHCR, humanitarian support.

Are the Ukrainians displaced by the Russian invasion ‘refugees’ under international law? 

Many refugee law researchers, social scientists and UNHCR recognise that the definition of ‘refugee’ in the 1951 Refugee Convention, which includes those with a ‘well-founded fear of persecution’ on grounds of ‘race, religion, nationality, political opinion or membership of a particular social group’ is broad enough to cover many people fleeing armed conflicts (“war refugees”). The oft-repeated position that ‘persecution’ requires some individualized form of targeting is simply not born out by the Convention’s text, nor from its drafting history and context

Ukrainians and others within Ukraine are, as the intentional bombing of civilian structures shows, at risk of persecution and other violations based on their nationality. Importantly, from the perspective of international law there is no barrier to granting refugees from Ukraine status as Convention refugees on a prima facie group basis. This status is also  ‘temporary’ in the sense that refugees receive residence permits which may be withdrawn if their refugee  status ‘ceases’ following substantial changes in the country of origin. Nonetheless, the EU and some states have adopted separate mechanisms to deal with situations of mass influx. 

Temporary Protection EU style

The Temporary Protection Directive (TPD) was enacted in 2001 in the aftermath of the large-scale displacement experienced in Europe due to the armed conflicts in ex-Yugoslavia, in particular Bosnia and Kosovo. The purpose was to provide for swift reception that allows mitigating pressure on national asylum systems while upholding human rights standards for the displaced through simplified procedures and burden-sharing based on reception capacities determined by each Member State.

The instrument is designed to respond to situations of ‘mass influx’, defined as the arrival in the EU of a large number of displaced persons from a specific country or area. Their arrival may be ‘spontaneous’ or aided, for example through an evacuation program. The Council decision appears to cover four classes of beneficiaries. The first class is Ukrainian nationals residing in Ukraine before 24 February 2022. The second is third country nationals or stateless persons who received protection in Ukraine before 24 February 2022. The third is family members of the above two categories. Finally, the TPD decision extends to third country nationals or stateless persons with permanent residence status in Ukraine as of 24 February, who are unable to return ‘in safe and durable conditions to their country or region of origin’. With respect to this final class of beneficiary, EU Member States retain discretion whether to apply the TPD or an alternative ‘adequate protection under their national law.’ For third country nationals and stateless persons with more temporary forms of stay in the Ukraine, such as international students or temporary workers, Member States are given a choice as to whether to apply the TPD. In any case, they should provide safe passage on humanitarian grounds without requiring a visa or valid travel documents so that these third-country nationals can return home.

Under the TPD and the Council decision to implement it, refugees have a right to reunify with spouses and unmarried partners in countries where these are treated similarly to married partners; minor children; and according to the Council decision, other close relatives who were part of the family unit. When it comes to social and economic rights, beneficiaries have the right to work and, for those under 18, to attend school on par with nationals. Member States are obliged to ensure access to, or the means to obtain, suitable accommodation, and subsistence-level public support. They must also provide minimum emergency health care and essential treatment for illness, in addition to appropriate care for those with special needs such as unaccompanied minors and victims of torture, rape and other forms of serious violence. A one-year permit is provided initially, which can be renewed for up to three years (the third year would need to be approved by a qualified majority vote  of the Council on a Commission proposal). 

The benefit of temporary protection is that it enables states to offer asylum on a group basis to people fleeing the war in the Ukraine. Being a temporary protection beneficiary does not preclude the recognition of Convention refugee status or complementary/subsidiary protection. Many of the rights and benefits provided to these refugees and beneficiaries of subsidiary protection under the Qualification Directive, including integration support, are not provided for under the TP regime. Therefore, it is important that the option to secure a more stable status exists for people unlikely to be able to return in the long-term. People who receive a negative decision on refugee status retain, however, temporary protection.

From a state’s perspective, protection on a collective basis eases pressure on the asylum administration, from registration to case processing. EU Member States may also, through the TPD, benefit from ‘burden sharing’ arrangements, including agreements among states to transfer refugees from countries where reception capacity is overloaded to those who can better receive them.

However, there are still many questions and concerns about the implementation of temporary protection. One factor is the ‘double voluntariness’ aspect, referring to the fact that, on the one hand, Member States can decide how many refugees to receive and, on the other hand, refugees themselves must be willing to go to the Member State which is offering them temporary protection. There is by no means a complete match between the two. Interestingly, the Council decision does not include information about Member States’ capacities as provided in Article 5(c)(3) TPD. Instead, it provides for a mechanism for monitoring and coordinating needs for support. The decision does refer to an agreement not to apply Article 11 TPD, which would have disincentivised movement between Member States by obliging the State which first provided temporary protection to  ‘take back’ the person concerned. 

Temporary Protection in Norway, Denmark and the UK

In the TemPro research project, we have a focus on two non-EU states, Norway and the UK, as well as Denmark which has ‘opted out’ of the Common European Asylum System, including the TPD.  

In Norway, the government has decided to extend ‘collective protection’ under §34 of the Immigration Act – a provision which has not been used since 1999 with refugees from Kosovo. Under §34, people fleeing a ‘mass influx’ situation can, as with the TPD, receive a residence permit for one year which is renewable for up to three years. After this, beneficiaries receive a temporary permit which provides the basis for eventual permanent residence if the other criteria are fulfilled.

Denmark, being beyond the reach of the TPD due to its opt-out, is preparing special legislation that is likely to be modeled on the EU’s implementation of the TPD. The government has undertaken to produce a bill next week.

In the UK, the response has been fragmented. Prime Minister Boris Johnson announced an intention to receive 200,000 people ‘forced to flee their homes’ in Ukraine by expanding the Ukrainian Humanitarian Route that grants Ukrainians family migration visas if they have close relatives settled in the UK, including not only spouses and minor children but also  parents, grandparents, siblings and children over 18. A new uncapped sponsorship scheme is also being planned which would enable communities, private sponsors and local authorities to sponsor Ukrainians for residence. It is not yet clear what duration of residence these various routes will provide, nor how Ukrainians without these connections will be received.  The UK’s broad inadmissibility criteria may exclude those who claim asylum after traveling through ‘safe third countries’ like Poland. It is unclear how these criteria will be interpreted and applied. One possibility is that Ukrainians will be permitted to remain but as ‘inadmissible’ refugees (because of  a protection alternative in neighboring states) and granted a type of national ‘temporary protection status.

Why was temporary protection not offered during the large-scale arrival of refugees to Europe in 2015?

The TPD, due to its open definition of ‘mass influx’, relies on the political will of the EU to be implemented. It requires first a proposal by the Commission, which then needs to be adopted by a qualified majority of Member States in the Council. During 2015/2016, when approximately one million people sought protection from the war in Syria and other conflicts, there was insufficient political will to activate this Directive. The more heterogeneous backgrounds of protection seekers entering the EU may explain the inaction, along with a fear of attracting unknown numbers of arrivals.  This has also been linked to the security focus in EU migration and asylum policies, anti-Muslim politics and right-wing nationalism fueled by terrorist attacks in Europe. But there was also a recognition, at least in some circles, that Syrian refugees were unlikely to have only a short-term need for protection. In Norway, this was the justification provided publicly by Prime Minister Erna Solberg in 2015 for not invoking the national provision for ‘collective, temporary protection.’

The Ukrainian displacement crisis is the first of its scale on European territory since the TPD was adopted in 2001. Ukrainians already had the possibility to enter the Schengen area without a visa and reside for a maximum stay of 90 days. Hence, the geopolitical background for its activation is substantially different than in 2015. For better and worse, this seems to result in certain degrees of preferential treatment for people fleeing Ukraine. This should call for reflections in the context of the ongoing reform of the Common European Asylum System.

Collective, temporary protection: some observations

At the time of writing we have no idea how long the war in the Ukraine will last, or its ultimate outcome and its potential for causing persecution and other forms of serious harm. Hopefully, protection needs will be truly limited in time and the provision of temporary protection is only to be welcomed as such. However, we are more cautious about framing temporary protection arrangements as the only solution to the urgent humanitarian situation we now face.  To the degree that TP provides a platform for collective action and solidarity on the part of governments, it has an important role to play in the overall response. But temporary protection creates medium and long-term challenges for refugees themselves.  

Although temporary protection holders are potential refugees or beneficiaries of subsidiary protection, the collective policies applied to this group (with the exception of certain sub-groups like those with health or age-related special needs) may obscure the fact that some are likely to need long-term protection based on their personal circumstances, in addition to their exposure to military violence in Ukraine. These include refugees from third countries in Ukraine and previously internally displaced persons from the Eastern of Donetsk and Luhansk. Such cases are important to clarify at the earliest possible point, so that those affected can move on with their lives in the knowledge that they have a secure residence status. For example, during the Bosnian crisis it was quite clear early on that some groups – former prisoners of war including torture survivors and mixed marriage families – could not be expected to return. In Norway, the group-based approach was therefore quite frustrating for these populations, prolonging their insecurity even though all Bosnians, in the end, could apply for permanent residence. 

In any case, as time goes on, and certainly before the maximum three-year period of protection anticipated by the TPD and national variants, the expectation of return is likely to create conflicts with growing attachments to the country of residence. This is predictably the case for families with children in school. Many temporary protection beneficiaries with a right to remain even after the period of temporary protection expires will face delays of several years to access certain forms of integration support and eventually apply for permanent residence. Such dilemmas and lost opportunities must be carefully managed on an ongoing basis as collective protection is rolled out.