Recently, Western media has reported that many thousands of the over three million Ukrainian “refugees” in the European Union have returned to Ukraine to celebrate Orthodox Easter with family and friends at home. For legally recognized refugees from all other countries and situations under international protection in Europe and America, such an announcement was justifiably met with shock and resentment, since international asylum instruments make it quite clear that return to the country from which a refugee has fled, under almost any circumstance, would involve an automatic loss of the refugee’s protective status. A young African refugee in Italy, upon hearing this news, asked why he hadn’t been permitted to go back to see his dying mother in her last days without losing his refugee status, while a Ukrainian could simply go back home to celebrate a holiday and then comfortably return to a protected status in the EU. We should, thereby, carefully consider what the protected status of Ukrainian migrants in the EU entails, and how it differs from the status accorded to all other persons seeking and receiving asylum.
A partial answer to this question is that Ukrainian migrants, while protected under the EU’s 2001 Temporary Protection Directive, are not officially refugees. The Temporary Protection Directive makes it very clear that the protection offered, while it provides for most of the protective housing, labor, educational, and medical care rights as mandated by refugee status under the 1951 Geneva Refugee Convention, is time limited, and makes a clear distinction between those receiving this temporary protective status and legally accepted refugees and even asylum seekers in process for refugee status. Moreover, the Directive makes it clear that its enactment is merely a way of dealing with a mass influx, where the proper execution of individual asylum applications, which involves detailed examination of the applicant’s fulfilling of the requisite criteria of persecution or flight from directly targeted generalized violence is not practically possible.
The participant in a mass influx is simply accorded protective status upon proof of his country of origin or legal residence. There is, in short, no adjudication, since, given the numbers and urgencies involved, individual adjudication is not possible. A recipient of temporary protection can, if he wishes, apply for refugee status if he feels he can justify a longer or even permanent period of protection. But, unlike a refugee, a recipient of temporary protection need not claim persecution or direct endangerment from war; his nationality or residence in the target country is sufficient. There is avowedly no assumption made as to the motivation for his flight.
However, as stated, this explanation is only a partial answer to the question concerning the Ukrainian holiday visits. The Temporary Protection Directive takes over some of the language of the 1951 Geneva Convention in according protection to those “who are unable to return” to their home country. The lack of ability to return to one’s country of origin is repeated more than once in the text of the Directive. Hence, the clear intent of the directive is to protect people for whom return home is dangerous or impossible. Technically, return to Ukraine to celebrate Easter with family or friends should, as with Convention refugee status, remove the person from protection. However, there is no provision in the EU instructions for blocking return to the EU and the protection it affords for Ukrainians who have visited home. Again, it seems that the necessity of expeditious handling of the mass migration removes the cases from any serious individual examination.
In addition to removing individual cases from serious examination, the emergency nature of dealing with mass migration leaves unresolved questions of equity in the comparison between temporary protection as defined by the Directive and the nature and parameters of the standard forms of asylum. The restrictions of the Dublin accords, an essential although highly disputed outgrowth of the EU asylum regime, which demands that, with few exceptions, an asylum applicant must apply for asylum in the first EU country he reaches, are applied only weakly and indirectly in temporary protection cases. An arrival in a mass migration may move freely within the EU and register for temporary protection in any country he chooses. After he registers in one EU country, there are restrictions on his moving to another EU country to work or receive benefits, but he can move around without much time limitation until he decides where he wants to spend the period of his temporary protection.
Admittedly, especially in the case of the Ukrainian migration, application of the Dublin restrictions would have been impossible, demanding that the near entirety of the Ukrainian migration remain in the EU countries adjacent to Ukraine, Poland, Hungary, and Rumania. Expeditious handling of the mass migration rendered this restriction impossible. But the Italians, Greeks, and Spaniards could argue the same; they have been held responsible, given Dublin, for resettling the vast majority of African and Asian migration. It is only because Germany, France, and some other northern EU countries occasionally forego their rights under Dublin to return refugees and asylum seekers to their point of EU entry that the resettlement program doesn’t collapse.
Nevertheless, from the migrant’s point of view, the Ukrainian temporary migrant has appreciably more freedom to choose where he wants to reside and work than his Convention refugee counterpart, who never can be sure, until his case in finally accepted for processing, that he won’t be returned to his point of entry in the EU.
The absence of individual adjudication under the Temporary Protection Directive furthermore effectively hides a situation in which a substantial proportion of the mass migration would not, if individually adjudicated, qualify for any degree of international protection. Several EU countries, for example, require that the applicant show that internal flight, moving to a safe place within his country of origin, is not possible in order for him to receive refugee status. If this restriction commonly applied to regular asylum applicants were applied to the Ukrainians, given that very many Ukrainians have, in fact, chosen internal migration, very few would actually qualify for refugee status. There are large areas of Ukraine that are not under threat of Russian invasion, bombing, or occupation. Some EU countries would require that a war migrant seek safety there, and not in a separate country.
In addition, the large majority of Ukrainian migrants are allegedly fleeing from war, not persecution, and thereby would qualify for only subsidiary, maximum three year asylum under EU asylum law. Moreover, many EU countries require that the applicant be directly endangered by the violence; loss of housing, finance, educational or work possibilities, if physical danger is not involved, does not justify asylum. Some EU countries have even denied asylum to persons fleeing war related famine. None of these restrictions come into consideration with temporary protection. Also, most significantly, the beneficiary of temporary protection is allowed to facilitate entry and protection of his or her spouse and minor children, advantages denied under EU refugee directive to those with subsidiary refugee status. Strangely, a documented, endangered war refugee cannot, under EU law, call forth his or her close family to join, while a recipient of Temporary protection, who has proven nothing, can.
Undoubtedly the most glaring inequity between the treatment of the Ukrainian migrants with their counterparts in other migratory situations is not between European asylum and mass migration in Europe, but rather between a much more analogous situation between this mass migration in Europe and mass migrations in other parts of the globe. Since the 1960s mass migrations caused by generalized violence and at times even persecution have been tragically frequent in Africa and Asia. The response there, supported by the UN refugee agency, UNHCR, has been “prima facie” refugee status, under which the migrants have been accorded a modicum of protection, again without individual adjudication, in a neighboring country. But that is where the similarity to the present European situation ends.
The African or Asian prima facie refugee is generally confined to a refugee camp, where he is not allowed to work, and in some cases not allowed even to grow his own food or raise his own cattle. He is restricted to the camp and allowed to travel only a few kilometers outside its fenced borders. If he is given urban refugee status, which is quite infrequent, he is also generally under work restrictions. Some camps are, on the other hand, quite well managed and seem, on the surface, to be large, extended African or Asian villages and receive adequate, and even good medical and educational facilities supplied by contractual NGOs, but they are nevertheless places of human desperation, where refugees can wait for years for the resolution of their situation. These prima facie refugees have, moreover, no real control over their lives. They could be returned to their home countries whenever it was deemed by their host country to be safe or politically expedient.
A similar asylum program was, in fact, tried in Germany in the 1990s to deal with the mass influx of Bosnian war migrants, who were confined, as were the prima facie cases in Africa, to camps. It was, however, deemed to have been a colossal economic and human rights failure and was not seriously considered in Europe again, even with the massive influx in 2015-16 principally from Syria. Instead, Germany simply began to give refugee status to Syrians practically without individual consideration, issuing refugee status to Syrians even without a qualifying interview. No one, not even Europe’s most rabid xenophobes, are thinking of putting the Ukrainians in camps. That’s OK for Africans, but not for Europeans.
Ironically, in countries such as Poland, which has steadfastly refused to accept a quota of fully accepted refugees and legitimate asylum seekers and has sabotaged EU attempts for fair distribution of cases, there is, bizarrely, a welcoming attitude toward the Ukrainian migrants, with no examination whatsoever as to their actual need for protection. A partial explanation of the Polish version of the Willkommenskultur may be the ethnic, religious, and racial similarity of the Ukrainian migrants with their Polish counterparts, together with Polish animosity toward the ultimate cause of the migration, that is to say, Russia. The Poles seem, moreover, to have put aside the centuries of hostile and even violent relations between Poland and Ukraine through WWII and up until the breakup of the Soviet Union. Historically, Poles were second only to Jews as victims of persecution in Ukraine. Polish animosity towards Ukraine, therefore, is exceeded only by Polish animosity towards Russia, which may explain, at least in part, their welcoming attitude toward the Ukrainian migrants. It should also be considered that Polish generosity towards Ukrainian migrants, taking the migration pressure off the rest of the EU, seems to have at least temporarily distracted the European Union from taking disciplinary action against Poland for severe human rights and rule of law violations. If Poland, through reception of the huge numbers of Ukrainian migrants, succeeds in deflecting the EU from enforcing its basic principles, it will have rendered serious damage to the European experiment.
The treatment and reception of the Ukrainian war migrants in the EU has received widespread support and admiration. Of course, it deserves, from a humanitarian standpoint, universal accolades. It should be understood, however, that much of the program is dictated by practical and political necessity, not necessarily humanitarian or even legal concerns; it furthermore constitutes serious inequities and raises questions of racial, religious, and ethnic equality. It is, however, probably the best that can be expected at this time.