Two and a half months into Russia’s invasion of Ukraine, the EU has welcomed more than four million Ukrainians by activating an existing piece of EU legislation that gives them immediate protection and the right to work. The temporary protection directive (TPD), designed for the mass arrival of refugees, allows Ukrainians to sidestep the bloc’s cumbersome asylum processes.
While the EU’s invocation of the TPD has rightfully been lauded, its treatment of Ukrainian refugees contrasts sharply with the deterrence and externalisation of asylum seekers in recent years. “The TPD is a very different approach compared to what has been the strategy of the EU and many European countries for the last five years. That strategy is based on prevention of arrivals regardless of the costs or consequences,” said Catherine Woollard, the director of the European Council on Refugees and Exiles, a network of NGOs.
Among those costs and consequences are the forced return of asylum seekers to conflict situations, and human rights abuses resulting from financial deals struck with Turkey and Libya to prevent arrivals from making it to Europe. Without access to legal routes last year, more than 3,000 people went missing or died seeking entry to Europe, mostly by sea – the highest number since 2016.
While the war in Ukraine marks the first use of the TPD, it’s not the first time campaigners have asked for its invocation. NGOs and human rights groups unsuccessfully lobbied for its use in 2015 to deal with the large numbers of Syrians arriving in Europe.
Its activation in this crisis, said Bram Frouws, head of the Mixed Migration Centre, shows that Europe has the capacity for a better refugee response overall. “We’ve often heard, to justify the European approach, that there’s a limited space to receive so many refugees, and there are constrained budgets and a lack of cooperation between states. The response to Ukraine has shown that none of that really holds if there is [the] political will to respond in a certain way.”
While many analysts agree that the proximity and scale of the Ukrainian displacement has made the invocation of the TPD necessary, the race and religion of those fleeing can’t be ignored.
“It really is important to reflect on how EU migration and asylum policies to date clearly have a disproportionate impact on black and brown people,” said Judith Sunderland, the associate director of the Human Rights Watch’s Europe and Central Asia division.
Crucially, invoking the directive also means that Ukrainian refugees in Europe, unlike people fleeing other conflicts, are by definition not asylum seekers. “That problematisation of the very concept of ‘asylum’ plays out in the Ukraine situation because Ukrainians who are being broadly welcomed are not asylum seekers,” said Rob McNeil, the deputy director of Oxford University’s Migration Observatory.
The UK has been criticised for offering certain groups of refugees, most recently Ukrainians, an easier, bespoke route to the UK. “There’s been a lot of criticism of [the Home Secretary] Priti Patel and language of a ‘bespoke humanitarian route’,” McNeil added, “but that concept is not exclusively British because, realistically, the EU [approach] is also in itself a sort of bespoke humanitarian route. It’s asylum, but not under the rubric of asylum.”
While the contrast in the EU’s approach to different groups of people fleeing persecution or seeking a better life is evident across the bloc, it is particularly stark in some countries. Greece is increasingly pushing back asylum seekers into Turkey. UNHCR, the UN refugee agency, has recorded almost 540 incidents of informal returns at Greece’s land and sea borders since the beginning of 2020. Meanwhile, the 25 deaths and disappearances so far this year of migrants trying to cross Turkey’s land border into Greece and Bulgaria suggests that 2022 might be as deadly as last year, one of the worst on record.
Poland, which has demonstrated remarkable solidarity in receiving some 3.2 million Ukrainians, simultaneously discourages other asylum seekers from entering. This year, Polish border guards have apprehended and returned more than 4,000 people including Syrians, Afghans, Iraqis and Cubans who have attempted to cross over the border from Belarus.
“We need to recognise that bombs are still falling on Ukraine and people are leaving desperate situations, so we need to support them,” said Eve Geddie, the head of Amnesty International’s Brussels office. “We also need to be challenging that double standard.”
For those who make it to Europe, data on asylum decisions shows how a cumbersome system further works against them. Indeed, this is why arrivals from Ukraine are being dealt with outside the usual process.
New claims routinely exceed the number of decisions. As of the end of February, there were over 453,800 pending asylum claims, according to the EU’s Agency for Asylum – more than any time since June 2020. Half of all claims have been pending for more than six months.
Binding EU directives specify minimum standards on how people should be treated and claims examined. Nevertheless, differences in implementation create a so-called protection lottery, resulting in very different asylum outcomes between states.
Part of the backlog is down to the fact that using the asylum system is one of only a few legal ways that economic and other vulnerable migrants can try to reach Europe. However, underinvestment in existing systems has also contributed to delays.
“For the last 20 years the focus has been on deterrence, return and deportation so that’s where the infrastructure, political discourse and investment is centred,” said Geddie.
One particularly contentious principle that does not apply to Ukrainian refugees is the Dublin Regulation, which requires asylum seekers to apply for protection in the first EU country they enter. Extending this exemption beyond Ukrainians to others seeking protection, said Sunderland, is one major way the system could be reformed.
“In the long run, allowing people to settle in the place of their choice creates a situation in which they are far more likely to thrive and contribute to the society and for their children,” she said.
While Geddie, Sunderland and Woollard are optimistic that the Ukrainian example provides lessons for broader asylum reform, a strong opposing current is likely.
“There’s going to be lots of countervailing forces and people who will be insisting on the exceptionalism of this situation and how it doesn’t have any lessons for how the EU is dealing with other migrants, so it’s not going to be easy,” said Sunderland.
Last month the European Commission put forward new measures with a long-term aim of making legal migration more attractive for migrants and less complex for EU countries by simplifying residency and work permit processes, as part of its New Pact on Migration and Asylum.
Despite these advances, the pact and most other plans on the table to reform EU law are largely based on the existing model of containing people at borders and limiting due process rights, said Woollard.
Frouws also suggested that the high number of Ukrainian refugees being hosted in eastern European countries could also shift the power dynamic within Europe on wider asylum discussions. “I can imagine it will become more difficult for other countries and the European Commission to fiercely criticise Poland for their migration and asylum policies, and more specifically [with] what they’re currently doing on the border with Belarus.”
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