The temporary protection of Ukrainian refugees: a model for the future or a case of discriminatory exceptionalism?
The following essay was originally compiled for the Mixed Migration Review 2023 and has been reproduced here for wider access through this website’s readership.
The essay’s authors, Lena Näre is a Professor of Sociology at the University of Helsinki’s Faculty of Common Matters (Faculty of Social Sciences) and Olga Tkach is a senior researcher at the Centre for Research on Ethnic Relations and Nationalism at the University of Helsinki’s Swedish School of Social Science.
Why did the arrival of millions of Ukrainians fleeing war prompt Europe to fling open its doors rather than – as it did less than a decade ago in response to a relatively modest spike in arrivals, many of whom were also escaping armed conflict – to declare a “migration crisis” and shore up its borders?
Introduction
Since the beginning of Russia’s invasion of Ukraine on 24 February 2022, nearly 6.2 million refugees have fled Ukraine, of which over 5.8 million reside in Europe. Within two months of the invasion, more than 7 million people were internally displaced by the war and as of June 2023, that number stood at over 5 million.
The numbers of Ukrainian refugees are comparable to two other large refugee situations in the world. Since 2011, the Syrian civil war has forced over 12 million Syrians to leave their homes: 6.8 million have been internally displaced and over 5 million are living in neighbouring countries.5 Four decades of conflict have forced at least 8.2 million Afghans to flee their country to 103 different countries. The Afghan refugee situation constitutes the longest and the third-largest population of displaced individuals in the world.
While these three refugee situations resemble each other in the number of individuals affected and the conflict-related drivers of their displacement, the political responses to them in Europe have been very different.
This essay compares responses to the Ukrainian refugee situation to reactions to the large movements of refugees and migrants to Europe in 2015-2016. It first compares the political responses to these two refugee situations in Europe. The essay then offers a closer look at the European Union’s temporary protection regime and situates it within the broader policy landscape, particularly in relation to the European Commission’s New Pact on Migration and Asylum and the Global Compact for Safe, Orderly and Regular Migration (GCM). It then discusses more closely the case of Poland, which hosts the largest number of Ukrainian refugees while trying to keep out asylum seekers from Syria, Afghanistan and other countries. The essay ends with a reflection on what lessons could be learned from the reception of Ukrainian refugees.
Comparison of political responses to diverse refugee and migrant mobilities in Europe
Within weeks of the Russian Federation’s attack on Ukraine, the European Commission triggered the Temporary Protection Directive (TPD) for the first time since its adoption in 2001. This directive was originally drafted in response to the Balkan Wars of the 1990s as a means of providing protection to displaced persons arriving from countries outside of the EU.
The directive was activated on 4 March 2022 and it applies to Ukrainian nationals who had resided in Ukraine before 24 February 2022, as well as other nationals who were legally living there before that date, as well as their family members. The directive applies to all EU member states except Denmark, which introduced a similar temporary protection scheme by adopting the Special Act on Temporary Residence Permit for Persons Displaced from Ukraine. Iceland, Norway and Switzerland also took similar steps. As of 1 October, 2022, according to the EU Asylum Agency (EUAA), almost 4.4 million people fleeing Ukraine have registered for temporary protection in the 29 EU+ countries since the invasion.
Despite its main triggering criterion then being in place, the Temporary Protection Directive was not activated in the autumn of 2015. Moreover, at the time, there was a momentum of political solidarity across Europe towards refugees from the Middle East, especially after the corpse of two-year-old Syrian Alan Kurdi was depicted in a photo that circulated globally. Several European leaders made public pronouncements of solidarity. Germany’s then chancellor, Angela Merkel, for example, famously said of the growing numbers of people trying to reach Europe: “We can manage this”. And the then Finnish prime minister Juha Sipilä offered to accommodate refugees in his empty home in the small town of Kempele. These statements also gave impetus to responses from civic society across Europe.
However, the momentum of welcoming refugees in 2015 and 2016 soon waned, just as political and media discourse became more alarmist and hostile. The movement of fewer than 2.5 million refugees from Syria, Afghanistan and other countries who applied for asylum in European Union member states (total population: more than 500 million) in 2015-2016 was widely presented as a “crisis” across the continent even though it amounted to an increase of less than 700,000 over the number of asylum applications submitted in 2014.
The subsequent longer-term political responses to the increased number of asylum seekers included the closure of borders in various EU member states, the implementation of more restrictive asylum policies, and the establishment of a “statement of cooperation” between the European Council and Türkiye, which was designed to stop asylum seekers travelling irregularly from Türkiye to the Greek islands, and which provided for those that did make it to Greece to be returned to Türkiye. In exchange, Türkiye received €6 billion in aid and pledges that the EU would help resettle Syrian refugees in Türkiye, reduce visa restrictions for Turkish citizens, update the customs union and re-energise the process of Türkiye’s accession to the EU.
Yet for a long time, very few migrants and refugees were returned from Greece to Türkiye because Greek courts repeatedly found that Türkiye was not a safe enough country to send them back to. However, since a Greek Joint Ministerial Decision in June 2021 declared Türkiye to be a “safe third country” for people from Afghanistan, Bangladesh, Pakistan, Somalia and Syria, the number of asylum applications deemed inadmissible by Greek authorities has increased. But since the outbreak of the Covid-19 pandemic, Türkiye has not accepted any migrants and asylum seekers from Greece. This has left thousands of people stuck in Greece without protection but with no possibility of going back to Türkiye either.
In comparison to the political response to the large movement of refugees and migrants in 2015-2016, the “crisis” discourse has been remarkably absent in the context of Ukraine’s recent exodus. Offering protection to over 4 million Ukrainians across Europe has not been publicly framed as a crisis even in the Nordic countries, where the discourse regarding the need to safeguard the welfare state from refugees is all too common.
The Temporary Protection Directive in a wider policy landscape
The 2015-2016 refugee “crisis” was one of the instigators of two policy frameworks that provide a point of reference for the Temporary Protection Directive. In 2016, the European Commission proposed seven reforms to the Common European Asylum System, two of which EU member states were not able to agree on, and the other five of which have been developed since. In September 2020, the Commission proposed a New Pact on Migration and Asylum that includes several proposals variously aimed at: harmonising rules on determining the member state responsible for applicants for international protection; setting up common standards for asylum procedures and reception conditions as well as recognition and protection of beneficiaries of international protection; and establishing a voluntary solidarity mechanism designed to deliver a more equal relocation of asylum applicants across EU member states.
In June 2023, the European Council agreed on two key proposals in the Pact: The Asylum and Migration Management Regulation (AMMR) and the Asylum Procedures Regulation (APR). The APR proposes to streamline the procedural arrangements and set standards for the rights of asylum seekers. It also requires applicants to cooperate with authorities throughout the claim procedure. Importantly, the APR also introduces procedures to quickly assess “at the EU’s external borders whether applications are unfounded or inadmissible” in situations of “illegal border crossing and following disembarkation after a search and rescue operation”. This border procedure is obligatory in cases where “the applicant is a danger to national security or public order, he/she has misled the authorities with false information or by withholding information and if the applicant has a nationality with a recognition rate below 20 percent”.
The AMMR is intended to replace the current Dublin regulation and proposes a new solidarity mechanism and other measures aimed at “preventing abuse by the asylum seeker and avoiding secondary movements”. Moreover, the Pact includes a regulation addressing the instrumentalisation of people in the field of migration and asylum adopted in December 2021 in response to Belarus’ mobilisation of asylum seekers to fly to Belarus and transit onwards to the EU’s external borders in Poland, Latvia and Lithuania. The notion of instrumentalisation is also found in the renewed EU action plan against migrant smuggling (2021-2025), which is part of the Pact.
While it is still too soon to determine how the AMMR and APR will play out in practice, it is clear that these propositions follow a long-term policy of restricting the possibilities of applying for asylum in the European Union. They seek to limit the number of asylum applicants by increasing procedures at the external border of the EU.
The Pact’s tone and aims are very different from those of the GCM, a non-binding framework endorsed by the majority of UN member states in 2018. While the Pact emphasises the protection of the EU’s border, the GCM emphasises the individual experience of migration and the human rights of all migrants. It enjoins signatory states to eliminate discrimination against migrants and their families and is gender-responsive and child-sensitive. The GCM acknowledges that migration contributes to positive development outcomes and should be addressed with a whole-of-government and whole-of-society approach. This entails partnerships between government agencies, migrants, diasporas, local communities, civil society and so forth. The GCM reaffirms the sovereign right of states to decide on their national migration policies and stresses the respect for the rule of law, due process and access to justice as fundamental to all aspects of migration governance. But while the GCM’s status-blind view of migration contrasts starkly with the Pact’s, it resonates with the aims of the Temporary Protection Directive.
The provisions of the Temporary Protection Directive and its implications for individuals
The TPD simplifies the registration and family reunification processes of Ukrainian refugees across EU countries. The duration of temporary protection should be for an initial period of one year, although, in October 2022, the European Commission announced that temporary protection under the directive would be prolonged until March 2024. Member states followed this practice with regard to their national schemes and offered various rules of prolongation of the duration of temporary protection, including an automatic extension in some cases.
Besides granting residence status, temporary protection offers access to basic services and rights, including access to employment, education, accommodation, social welfare and healthcare, as well as banking services. The provision of benefits and access to services and rights differ between countries. For example, recent surveys of people displaced from Ukraine who were offered temporary protection in urban areas in Germany, Poland and Switzerland showed that about a half or more than a half of those fleeing the war were in need of employment, proper accommodation and healthcare. A big percentage of them reported relying on social benefits or ending up in occasional, underpaid, irregular employment. Only a small minority had regular-paid jobs.
One of the advantages of the TPD is that it grants beneficiaries free movement within the EU as well as the right to travel back and forth between the bloc and Ukraine. Many Ukrainian refugees accordingly travelled between EU states for family reunification, special health services or living and job opportunities. Many also returned temporarily to their hometowns in Ukraine to visit family and friends (especially men whose wartime movements were restricted), check up on property and businesses, access economic opportunities and assess the degree of safety in specific areas. Between 24 February 2022 and mid-August 2023 there were 12 million border crossings from Poland back to Ukraine and 14.4 million crossings from Ukraine to Poland. The TPD has thus enabled many Ukrainian refugees to maintain as “normal” a life as possible given the wartime context. This back-and-forth mobility of Ukrainians has not called into question their entitlement to protection, or raised a risk of its removal, as often would be the case for refugees of other nationalities.
But neither is it always straightforward: a recent survey of Ukrainian refugees found that 40 percent of respondents who had not yet visited their area of origin were unable to do so, mainly due to security concerns and lack of funds, followed by caregiving responsibilities, a lack of documentation and a fear of losing their legal status in host countries.
In significant ways, the legal framework for refugees from Ukraine arriving in the EU is distinct from the policies that apply to refugees, asylum seekers and migrants from other non-EU countries. Due to their right to enter the EU, their freedom of mobility, and their protected status, there is largely no need for Ukrainian refugees to use smugglers—unless they are seeking to leave occupied territories in Eastern Ukraine and need to move through Russia. While European policymakers have long been very vocal about “disrupting the business model” of smugglers operating on the Mediterranean and Balkan routes, the Ukrainian case demonstrates that the best way to make smugglers redundant is to create legal pathways.
Nevertheless, risks of abuse remain for certain vulnerable groups, such as unaccompanied and separated children and children travelling with adults whose relationship with the children cannot be verified; minorities such as LGBTQI+ people; those who are ineligible for or unable to access temporary protection under the directive due to a lack of information or incorrect information; non-Ukrainians; Ukrainian Roma people; elderly people; and people with mental and physical disabilities. The trafficking related risks such vulnerable people face include sexual exploitation, forced begging and forced criminality.
While the temporary protection for Ukrainian citizens has automatically been extended in most EU countries, the situation for third-country nationals who fled Ukraine is more complicated. In many EU member states the period of temporary protection for third-country nationals ended in August or early September 2023, and there has been discussion about whether these individuals should return to their respective home countries. In Poland, for instance, third-country nationals have to apply for international protection or a temporary residence permit. They can also apply for temporary protection if they, or their immediate family members, have held a valid residence permit or refugee status in Ukraine and they can demonstrate that they cannot safely and permanently return to their home country.
Poland’s double standards at its borders
The differences between the treatment of refugees from Ukraine and those from other non-EU countries is particularly stark in Poland. A neighbouring country to Ukraine, Poland is both the main transit country for Ukrainian refugees to other EU states and the country hosting the largest number of refugees from Ukraine. As of August 2023, more than 1.6 million Ukrainians had applied for asylum, temporary protection or similar national protection schemes in Poland. The Polish-Ukrainian border has served as the main access point for both Ukrainians fleeing the country and those returning to Ukraine.
The political response towards hundreds of thousands of Ukrainian refugees in Poland has been overwhelmingly positive. Poland has kept its border with Ukraine open, and while the government was initially slow in responding to meet the needs of Ukrainian refugees, civil society acted fast, and volunteers handled the early reception of Ukrainian refugees. The engagement of civil society resembled the solidarity responses in several European cities in the autumn of 2015. Public attitudes towards those fleeing Ukraine have remained highly positive despite a drop this year as the war continues. In Poland, as in other European countries, the policy response has now moved from an emergency reception phase towards the inclusion of Ukrainians and Ukrainian families into society, including labour markets, schools and local welfare systems. An enormous part of volunteer work with Ukrainian refugees has been done by Ukrainian citizens who have already resided in Poland as labour migrants. Therefore, many of those fleeing Ukraine rely on family, friends and co-ethnics for accommodation and security, as well as for employment opportunities. While processes take time, the integration of Ukrainian refugees lies in stark contrast to the long bureaucratic processes and years of legal uncertainty that asylum seekers from non-EU countries have to endure.
Similarly, Poland’s open-border policy towards Ukrainians differs greatly to its treatment of migrants and refugees at its border with Belarus. Here, starting in the summer of 2021, tens of thousands of people from war-torn countries such as Somalia, Iraq, Afghanistan, Yemen and Syria (where, just like in Ukraine, Russian military action is a key driver of human displacement) were unlawfully and violently pushed back to Belarus with no regard to due process. Polish authorities described Belarus’ facilitation of these migrants’ journeys to Poland’s border as an act of “hybrid warfare” and “an attack against Poland”. This criminalisation of refugees, denial of entry and violent pushbacks have been tacitly approved by the European Union according to the interpretation of the authors of this essay. Indeed, the terms “hybrid attack” and “hybrid threat” are also found in the Commission’s proposed “Regulation addressing situations of instrumentalisation in the field of migration and asylum”. This approach is in line with Poland’s longstanding opposition to the European Union’s refugee relocation scheme despite the fact that the number of refugees has been small in Poland (between 1991 and 2016 only 140,000 individuals applied for refugee status in the country). The fact that Poland now hosts more Ukrainian refugees than any other country has also further rearranged the cards within Europe in relation to discussions on solidarity and responsibility-sharing for asylum seekers from other countries arriving in southern Europe. While Eastern European states were already opposed to relocation, unlike before the war in Ukraine they could now argue that they are already doing more than their fair share in terms of refugee hosting.
Conclusion
The EU’s overall political response to Ukrainian refugees has demonstrated that large movements of migrants and refugees do not need to constitute a “crisis” for European societies, even for such relatively welfarist states as the Nordics, as long as individuals are given regular status and access to basic services. European economies have not been over-burdened by Ukrainian refugees, many of whom have sought protection only briefly before returning to Ukraine.
This points to the importance of mobility and the possibility to return for migrants and refugees. Allowing people to continue to visit and care for family members in the country of origin should be a right also for those who have received refugee status. It is, in our view, unreasonable and unsustainable as the war goes on, that those who have received a refugee status are often de facto prevented from visiting their home countries due to the travel documents they can receive and the fact that such travel back may impact their refugee status.
The reception of Ukrainian refugees has also revealed the racism inherent in the different treatment of refugees depending on their country of origin. The case of Poland is just one example but violent and unlawful pushbacks of migrants and refugees are also happening in the Mediterranean, for example from Greece to Türkiye, and large-scale pullbacks take place off the coast of Libya. The European Union has long sought to limit opportunities to apply for asylum, implicitly accepting the consequence that people die when trying to reach its border. This is happening while successful application of the Temporary Protection Directive has demonstrated there are alternative ways to deal with the arrival of large numbers of asylum seekers at the EU’s external border.
Indeed, the mass displacement of people from Ukraine to EU countries has highlighted broader issues related to the transparency of eligibility criteria for refugee status and unequal access to it. The right to international protection and security seems not to be universal but rather dependent on matters such as moral ideas of deservingness, geographical proximity and perceived cultural vicinity. Russian opponents of the Ukraine war fleeing their country, especially after the military mobilisation of September 2022, offer a case in point. Most went to countries that required no visa, although some have managed to enter the EU. Many now seeking asylum there—such as more than 1,100 in Finland—are stuck in limbo as the EUAA ponders their fate. Some temporary decisions have been made on the national level, but the overall bureaucratic responses to Russians fleeing conscription are mixed.
Finally, not even the so-called “refugee crisis” in 2015-2016 was really a crisis, at least not for European states and societies. It was a crisis for those individuals who died along the route and their families. And it seems to have led to a crisis of humane asylum politics in Europe. It can only be hoped that the reception of Ukrainian refugees will serve as a lesson that even large movements of migrants and refugees, regardless of their country of origin or skin colour, are not a crisis, nor a threat, but an opportunity.