Generous, but Equal Treatment? Anti-Discrimination Duties of States Hosting Refugees Fleeing Ukraine
By Janine Prantl, Visiting Scholar at the Zolberg Institute on Migration and Mobility, and Ian Matthew Kysel, Visiting Assistant Clinical Professor of Law at Cornell Law School
This blog post was first published by The European Journal of International Law.
More than 5 million refugees have recently fled Ukraine, the fastest-growing mass displacement in this century. About a quarter of Ukraine’s population and half of its children have fled their homes. The European Union (EU) responded with a first-time activation of the Temporary Protection Directive (TPD). Lurking behind tremendous generosity, States have treated arrivals from Ukraine differently than other recent flows of forced migrants and have also treated some fleeing Ukraine differently than others. Although differential treatment is not always discriminatory under human rights law, some State responses to the current crisis arguably have been. Fortunately, the law creates myriad ways to challenge these violations. Using this law in the courts, we argue, could foster better protection of refugees and other migrants in the current crisis and in the future, strengthening non-discrimination’s rightful place as a key tool for advancing the rights of people crossing borders.
We have identified three contexts in which discriminatory treatment has emerged, or likely will, in the course of mass displacement from Ukraine: (i) restrictions on access to territory and the availability of humanitarian assistance based on race and nationality; (ii) preferential treatment of TPD protection beneficiaries compared to other groups of forced migrants; and (iii) inadequate national implementation of both mandatory and permissive provisions of the TPD. The first area is an easy case. The second raises complex questions about the adequacy of existing national asylum systems and affronts to dignity implicit in the architecture of “fortress Europe.” The last area is where discrimination may deepen.
Access to Territory and Humanitarian Protection
Race-based restrictions on access to territory and the differential availability of humanitarian assistance in countries of initial refuge made headlines early in the Ukraine conflict. Differential treatment on the basis of race arguably has “special significance” under international law authorities and has crystallized as discrimination per se under customary international law. The European Court of Human Rights (ECtHR) has ruled that objective and reasonable justification for differential treatment based on race or ethnicity must be interpreted as strictly as possible. According to the ECtHR, there is no objective justification for differential treatment based exclusively (or to a decisive extent) on race or ethnicity in a contemporary democratic society (Timishev v. Russia, Para. 58; D.H. and Others v. Czech Republic, Para. 176). The Human Rights Committee has applied a similar test when holding identity checks for the purposes of immigration control discriminatory because “racial characteristics” were the “decisive factor” (Lecraft v. Spain, Para. 7.4). Any race-based restrictions on entry or humanitarian assistance by State parties are thus clearly discriminatory, irrespective of justification. Indeed, the African Union slammed exclusions at borders as race-based limitations on the rights of those seeking to leave Ukraine. Several UN experts noted that such mistreatment “violates the prohibition on racial discrimination,” whether it is formal, informal, or ad hoc.
Not only race, but also nationality has been a ground for restricting entry of people seeking to cross Ukraine’s border. The International Organization for Migration (IOM) pointed to “verified, credible reports” of differential treatment of “men, women and children from dozens of nationalities [other than Ukrainian]” seeking escape from conflict-affected areas and aid behind Ukrainian borders. While nationality (as opposed to national origin) is not an enumerated ground in Article 2 of the International Covenant on Civil and Political Rights (ICCPR), State parties must base justification of differential treatment on grounds of nationality or citizenship on reasonable and objective criteria (see Gueye v. France, Para. 9.4). The ECtHR has underscored repeatedly that only “very weighty reasons” could justify such differential treatment (Gayusuz v. Austria, Para. 42; Koua Poirrez v. France, Para. 46; Andrejeva v. Latvia, Para. 87). In the context of precipitous flight from the ongoing war of aggression, it seems impossible that States identify “very weighty reasons” for making nationality-based distinctions in who can seek refuge outside Ukraine’s borders. This is the case even if some holding non-Ukrainian passports might be able to return to their countries of citizenship without fear of persecution or other rights violation: practically speaking, they must cross the border first.
The Scope of the Temporary Protection Directive
More complicated are the ways in which the scope of temporary protection itself implicates discrimination law. Previous reluctance to activate the 2001 TPD has been subject of a long debate, given the investment in building “fortress Europe” to forestall arrivals of large groups of people on the move. The political deadlock in influx situations other than from Ukraine – including arrivals from Syria and Afghanistan – highlights that migrants from Ukraine are treated differently than others. Because distinctions must be based on objective and reasonable criteria, the discrimination analysis is very fact specific, (see, e.g., Human Rights Committee General Comment 18; Karakurt v. Austria, Para 8.4). An automatic or facilitated grant of temporary status is a vital tool for States to uphold the functioning of asylum systems. Valid State objectives, especially given the unprecedented speed and scale of arrivals from Ukraine, likely justify the differential treatment reflected in the activation of the TPD in the specific context of mass displacement from Ukraine, as opposed to other recent or ongoing migration. These circumstances make it difficult to establish that the scope of the TPD is itself discriminatory.
The Council Decision implementing the TPD (TPD Implementing Decision) is – and this is laudatory – quite protective for those fleeing Ukraine. EU Member States are obliged to offer temporary protection to citizens of Ukraine and to “stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022” as well as their family members (Art. 2 Para. 1 (b)-(c) TPD Implementing Decision). The inclusion of stateless persons and those who previously secured protection in Ukraine under the Refugee Convention or other human rights treaties is laudable, as is allowing freedom of movement and the choice of in which EU Member State those fleeing will seek protection (quotas are permitted under Article 25 of the TPD, but have not been implemented).
While the scope of temporary protection is necessarily limited, the non-discrimination test may have bite where these limitations run up against State deficiencies in refugee protection. Deaths in the Mediterranean and recent evidence of violations of the right to life and the prohibition of torture and inhuman degrading treatment along the Poland-Belarus border (disproportionately affecting Afghans among others) underscore that not all asylum-seekers approaching the EU are permitted access to territory or status determination procedures. In the immediate period, if asylum-seekers from places other than Ukraine are denied access to territory or status determination procedures or are treated materially less well than TPD beneficiaries during such processing, non-discrimination law may provide a basis for bringing suit. (On the other hand, a refugee who is eventually recognised under a national asylum procedure, could, in the end, be better off – with a permanent status and rights as required under the Refugee Convention – raising long-term questions about when prolonged temporary status may become discriminatory.) In short, treating non-Ukrainian refugees particularly poorly or excluding them from the law’s protection entirely may constitute discrimination.
One compelling comparator case in this regard is that of Russians fleeing an increasingly repressive regime. Some estimate that more than 250,000 Russians have emigrated since the start of the war, and yet there is no temporary protection available to Russians in the EU. Under the pretext of sanctions against Russia, some States have even cut off legal means of entry that could be used to seek protection: the Czech Republic and Lithuania have halted visa processing for Russian citizens. Whether or not two people are in a comparable situation for purposes of establishing discrimination is both fact-specific and contextual. The ECtHR does not require identical situations, but relative similarities (see e.g. Fábián v. Hungary, Para. 121; Clift v. the United Kingdom, Para. 66). The Human Rights Committee has likewise suggested the fact-specific nature of evaluating whether two groups are de facto the same or different for purposes of evaluating discrimination (Ruiz et al. v. Spain, Para. 7.2). In order to evaluate whether such differential treatment constitutes discrimination on the basis of nationality, it is necessary to consider relative similarities. The risks for those fleeing Russia with a fear of persecution because of political opinion (opposition to the war) are not identical to those fleeing Ukraine. Yet, in context, similarities exist in the threats – to both – of violence from the Russian regime. For a Russian refugee who manages to arrive in an EU Member State today, formal status hinges upon the eventual success of an application for international protection. This depends on the effectiveness of the procedure, personal circumstances and the security situation in Russia. Importantly, some Russians fear unwelcome policies and hostility in light of widespread condemnation of the invasion, which can hamper the process (and raise other issues of discrimination). Temporary protection thus implies immediate differential treatment. While, as noted above, this presently does not appear to be discriminatory, the continued permissibility of State justifications under the TPD may be undermined if the influx from Russia continues or grows, hostilities endure, and backlogs of cases in asylum systems increase. ECtHR case law suggests that continued proportionality of at least this nationality-based distinction may come to be a close call.
National Implementation of Permissive Provisions of the Temporary Protection Directive
In addition to differential treatment baked into the scope of the TPD, there have been and will likely be a great proliferation of distinctions between groups of those fleeing Ukraine as EU Member States implement the TPD. Variations will not be limited to the permissive provisions of the Directive, and some will constitute discrimination. EU Member States have already demonstrated differences in treatment under the mandatory provisions of the TPD. The recently-enacted Polish law on aid to Ukraine citizens, for example, evidently excludes from protection those without Ukrainian citizenship fleeing the war (except spouses of Ukrainian nationals who are not themselves Ukrainian citizens). It is thus narrower than the TPD Implementing Decision. The law differentiates on the basis of nationality by excluding non-Ukraine nationals who fled the war and cannot go to their country of citizenship (for instance, refugees recognized in Ukraine). Poland is also pursuing goals of family reunification (and rapid labor market integration) of those who have fled Ukraine and want to stay. The Polish law, though, uses a narrow conception of family, only including spouses who do not have Ukrainian citizenship or passports. Such restriction of the TPD Implementation Decision’s scope suggests discrimination, but the test hinges on the existence of a legitimate aim and strict proportionality. Poland is hosting a staggering 2.8 million refugees from the conflict. Yet, in departing from the breadth of the TPD Implementing Decision, it is not clear whether these particular distinctions can be justified, especially given the EU mandate.
Distinctions in application of the mandatory aspects of the TPD may be the biggest driver of non-discrimination litigation, but differential treatment in application of the permissive provisions may be more widespread. Legal challenges to both may push towards more consistent and broader protections under the TPD. By using the permissive instruction “shall be considered” (as opposed to “applies”), the TPD Implementing Decision leaves open to Member States whether to extend equivalent protection to “stateless persons, and nationals of third countries other than Ukraine” who were “legally residing in Ukraine before 24 February 2022” and who are “unable to return in safe and durable conditions to their country or region of origin.” (Art. 2 Para. 2 Implementing Decision). The TPD Implementing Decision also encourages (with a magnanimous “may”) Member States to extend equivalent protection to any “stateless persons or nationals of third countries other than Ukraine residing legally in Ukraine who are unable to return in safe and durable conditions to their country or region of origin.” (Art. 2 Para. 3 TPD Implementing Decision). The TPD Implementing Decision helpfully notes that “such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis” and should in any event “be admitted into the Union on humanitarian grounds” without visa requirement. (Recital 13 TPD Implementing Decision). This is an important development and EU Member States should implement these permissive TPD protections to the maximum extent.
It remains a “big question mark”, however, whether permissive protection under the TPD will equally be available to all stateless persons forced to flee Ukraine. Because EU Member States are not required to grant temporary protection to stateless people without proof of permanent residence or of international protection in Ukraine, this group may need to apply for asylum or another protection status. Differential treatment of stateless people based on possession of proof of residence or prior grant of status is viewed through the prohibition of discrimination on the basis of ‘other status’. According to the ECtHR, the term ‘other status’ signifies a personal characteristic “by which persons or groups of persons are distinguishable from each other” (Kjeldsen, Busk Madsen and Pedersen v. Denmark, Para. 56). Given that statelessness and other intersectional characteristics are significant contributors to lack of access to formal legal residence, differential treatment of stateless people based on possession of residence or legal status may constitute indirect discrimination on the basis of statelessness as ‘other status.’ The Human Rights Committee has made clear that differential treatment that has a discriminatory effect is also prohibited (Human Rights Committee, General Comment 18, Para. 6). The State interests which might be invoked for such differential treatment, for example ensuring more rigorous control of identity, may not justify such a substantial difference in treatment (in terms of identity control, other – less intrusive means – can serve that purpose). At the level of individual application of the TPD Implementation Decision by EU Members States, then, this distinction is likely to be discriminatory, failing to accord with an objective and reasonable State objective.
Russia’s war of aggression in Ukraine may present a world-historical moment. The mass displacement it has produced has torn apart families and upended millions of lives. Neighboring States have responded with incredible generosity and the EU has made history by invoking the TPD. But not everyone fleeing to Europe is being treated the same. As distinctions are made based on grounds such as race, nationality, religion or other status and become disproportionate to legitimate State objectives, they rise to the level of discrimination. Refugees and other migrants should use the law to force equal treatment. International and regional non-discrimination law can be used as a lever to hold States to account and remedy these various forms of potential or ongoing discriminatory treatment. Litigation – in national courts, in the ECtHR and before international human rights treaty bodies and Human Rights Council Special Procedures – could pressure States to ensure even-handed treatment of refugees. Approaching courts in the midst of broad and protective action promises improvement in the humanitarian response and welcome precedent for future crises.