Activation of the temporary protection directive: Renaissance or tight-rope act for the EU asylum system?

In its swift and unanimous response to the Ukrainian crisis and the facilitated reception of refugees through its temporary protection directive, the EU has shown itself to be united as it has rarely ever been in migration matters. But this sudden solidarity also reveals deep-rooted ambivalences that undermine the core values the EU wishes to embody.

A comment by Zina Weisner and Julie Courbon

 

The severity with which the Russian military is hitting all parts of Ukraine has led to a displacement unprecedented in Europe’s recent history and, by mid-March, has already forced over 3 million people to take the roads of exile. Families are torn apart, children experiencing war, and indiscriminate attacks on civilians; the pictures that reach us are just heart-breaking. While it seems too early to draw long-term implications for European security and migration governance, we want to take a look at what the activation of the temporary protection directive tells us about the past and future of the EU migration and asylum system. 

 

Unity in #StandingwithUkraine: The temporary protection directive

As a consequence of the displacement from war-torn Ukraine, humanitarian thinking seems to be re-emerging in the EU’s discourse on borders, refugees and migrants. Within a week after the invasion of the Russian army, the Council for Justice and Home Affairs unanimously invoked the Temporary Protection Directive 2001/55/EG, which by definition grants temporary protection in the event of a ‘mass influx’ of displaced persons for one to three years.   

The protection status applies to all Ukrainian citizens as well as to third-country nationals who have resided in Ukraine with a refugee or other international protection status. In addition to not having to go through a lengthy asylum procedure, recipients of the temporary protection status are directly granted access to employment, education and social welfare. The instrument has the advantage of granting legal protection in an unbureaucratic manner, harmonising rights across the EU and alleviating potential pressure on national asylum institutions.

Furthermore, people falling under the directive criteria can freely move within the EU and choose where to settle depending on family and diaspora connections as well as labour needs. Such components, taking into consideration the well-being and the integration of individuals, represent a huge relief for those falling under the directive and could mark a new milestone in the European asylum system that drastically contrasts with previous EU measures towards migration and displacement.

Which brings us to the next question: Why has this instrument never been implemented before since its creation in 2001 – not after the Arab Spring, nor during the war in Syria or the Taliban takeover in Afghanistan in August 2021? 

 

EU and member states’ double standards: between reform and old ills 

The so-called Visegrad countries, including Poland, Hungary, Slovakia and the Czech Republic, are key elements to answering this question. Currently, it is precisely those countries that are hosting the majority of the refugees from Ukraine. While seeming like a policy shift at first sight, it rather illuminates the double standard their migration policy relies on.

This is illustrated by the firm opposition of these countries to a more equitable distribution of asylum seekers within the EU on the basis of quotas in recent years. First in 2015, and since then, with their refusal to receive asylum seekers from Syria and Iraq, but also more recently in 2020 with a common veto against the proposal of EU-wide distribution mechanisms in the New Pact on Migration and Asylum

Meanwhile, the aversion to accepting migrants has been perceived as the EU’s achilles’ heel by its autocratic neighbours. Until earlier this year, people arriving at the Poland-Belarus border were framed as “hybrid threats,” dehumanised by both sides and instrumentalised by the Belarusian dictator Alexander Lukashenko to pressure the EU at its Eastern borders. And no doubt Vladimir Putin considered, while pursuing other strategic interests in Ukraine, that he could divide Europe with the mass displacement of millions of Ukrainians to the west in the event of a conflict. 

Although the virtuous reaction of the EU to keeping their borders open for Ukrainians was strong and united, it reveals the exclusionary mechanisms inherent to the temporary protection directive. In fact, the EU Commission had initially proposed that third-country nationals who had a regular permanent residence in Ukraine – for example students from Africa and Asia – could also benefit from the protection status. The Visegrad countries however overturned this initiative, in coherence with their traditional anti-migration positions. 

It is now up to the discretion of each member state to implement a separate national regulation for third-country nationals. For its part, the German Ministry of the Interior has decided to accept all refugees from Ukraine, regardless of their nationality, and does not plan to set an upper limit on intake numbers. Here we identify the risk of a pernicious development: the systematisation of a right of asylum à la carte in the EU – when it should be a universal and indivisible human right according to the Geneva convention and guaranteed by Article 18 of the EU Charter of Fundamental Rights.

 

No quick fixes: Legacies of a deeply divided and discriminatory asylum system

Examples of the EU’s restrictive migration policy are not hard to find, ranging from the construction of border walls to the externalisation of border control through the so-called Libyan coast guard or repeated (illegal) pushbacks at land and sea borders.

While there are many explanations for the remarkable shift in responses and discourses by some European states towards a more welcoming reception of refugees from Ukraine, we want to focus on some of the inherent logics that have been present in the EU migration and asylum system for a long time. When looking back at the European border regime, a difference of treatment between migrants depending on their country of origin is clearly identifiable: safe and legal channels for refugees coming from other conflict zones around the world do not exist on a large scale. For years and especially in light of the deaths in the Mediterranean, experts have recommended the increase of resettlement places and complementary pathways

The tendency to differentiate between categories of refugees and migrants becomes undeniable in light of the racist and islamophobic discourse used by some European politicians and media shortly after the outbreak of the war in Ukraine. Even on the ground, non-Ukrainian nationals and people of colour seemed to face particular difficulties in leaving Ukraine after the Russian attack, some reporting that they were detained or turned back at internal European borders. Systematic racial discrimination cases are currently investigated by human rights organisations and the UN and have solicited a reaction from the African Union stating that “reports that Africans are singled out for unacceptable dissimilar treatment would be shockingly racist and in breach of international law.” 

In the end, the differential treatment of refugees from Ukraine has not only demonstrated the discriminatory tendencies inherent in the European asylum and border regime, but also how fabricated and flexible xenophobia can be. This is exemplified by the shift from a history of anti-Slavic sentiment and marginalisation of Eastern Europeans in countries of Western Europe to the current welcoming and solidarity they are receiving.

Another helpful explanation other than ‘race’ or religion for unequal treatment may therefore be (the return of) cold war logics and the politicisation of refugees. According to the refugee researcher Olaf Kleist, the activation of the temporary protection directive is in line with the trend of making protection dependent not on individual need and universal rights, but first and foremost on EU political interests. 

Ultimately, the gendered aspect of migration and asylum policy, which comes to light now as most Ukrainian refugees are women and children, plays a further determining role. At the moment, men between the ages of 18 and 60 are prohibited from leaving Ukraine as part of the general mobilisation to defend the country. The images of mothers, children and suitcases in hand, fleeing their country are however not to be underestimated in their power of conjuring up a “politics of pity” and constructions of vulnerability, rather than the usual politics of securitisation and risk-assessments when it comes to migration movements. That being said, the risks of gender-based violence, trafficking and (sexual) exploitation for those fleeing have to be tackled, without reducing women’s agency and rights.

 

The way forward: Learning from the past and planning for the future

So where to go from here? We need better preparedness and long-term coherence in the application of the protection directive and the universalist values of the EU.

The current hospitality and solidarity towards Ukrainians are powerful and show governments that societies are eager to help and welcome others. But they are also likely to come up against the contradictions of the past. In Poland for example, the asylum and reception system was never set up for such an influx of people due to the government’s hard-line EU response towards migrants and refugees over the past years. 

That is also why the immense support of Polish civil society in providing support to refugees is not just commendable, but also absolutely necessary. Almost ironically, the state is now approaching NGOs to cooperate with them, despite a few months ago criminalising those same organisations for helping refugees at the Poland-Belarus border. Not only in Poland but also in other EU countries, reception capacities have been chronically underfunded, as more funding was allocated towards a securitised and militarised response to migration by constructing border walls or expanding the budget of the European Border and Coast Guard Agency Frontex. Hence, the current situation is also exposing the consequences of short-sighted and one-sided approaches to migration, displacement and conflict, a weakness that the EU must address. 

Our conviction is that solidarity cannot be selective. This is a vital choice our society has to make. Everybody, no matter their gender, class or skin colour, is fleeing for similar reasons: fear of despotic regimes, fear of war, fear for their life, or the lives of their children. So why does the temporary protection directive apply to the war in Ukraine, but not to the current conflicts in Syria, Afghanistan, Yemen or Ethiopia? In that regard, now – and for future conflicts leading to displacement – we need a coherent and equal implementation of protection.

While the directive is the right instrument in light of the speed and scale of the Ukrainian displacement, we also have to prepare our institutions for the reality that this will become a protracted situation for which this “temporary” protection is not adequate. Thus, we need to make sure that it does not replace permanent protection schemes, restrict rights or ease the deportation of protection seekers in the long run. Overall, institutionalised forms of discrimination and racism towards asylum seekers and refugees must be tackled. In that regard, this is the right moment to support the implementation of functioning asylum systems in all member states as well as finding agreements in the reform of the Common European Asylum System.

With that in mind, the switch from short-term to long-term strategic action will be the hardest step, especially when thinking about labour market integration, and providing housing and schooling for the people joining our societies from Ukraine. Luckily, since 2015 (and before), there has been a very active and well-organised civil society in Germany and other European countries – however, better coordination between state and civil society but also at the inter-governmental level between EU states is needed to address these tasks.

With the activation of the temporary protection directive, the EU has shown its capacity to bring a humane response to migration movements. For now, it is too early to tell how distribution amongst EU member states will play out and whether policy conflicts over relocation mechanisms will arise again. The fact is, the EU asylum system is nowadays stratified and unequal. The lack of unity between member states regarding the application of the solidarity principle leads to double standards and breaks with the European commitment to the supposed universalism of human rights.

But with a strong political and civil will, there is a faint hope of this being a watershed moment and a move away from restrictive and deterrent policies of the past. Now more than ever, let us maintain and nourish the solidarity with Ukraine and use the momentum to show that the collective will for humane migration policy exists in Europe.

 

To contribute to this effort, we dedicated our last MigraTon-Podcast to Ukraine and compiled a list of information for volunteers wishing to get involved that we invite you to check out!

The Polis Blog serves as a platform at the disposal of Polis180’s & OpenTTN’s members. Published comments express solely the authors’ opinions and shall not be confounded with the opinions of the editors or of Polis180.

Image via unsplash 

 

 

Zina is a PhD student at the Department for Migration and Globalisation of the Danube University Krems. Her interests lie in the externalisation of EU migration policy towards the African continent and its effects on migrants’ rights and security. She is an active member of the Migration programme and co-host of the Podcast MigraTon at Polis180.

Julie studied political science at the Freie Universität in Berlin. Her research interests include European economic, neighbourhood and development policies with a focus on the Mediterranean and sub-Saharan Africa regions. At Polis180, she heads the Migration programme.

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