As war rages in Ukraine, Europe and other countries are taking unusually quick action to support the millions of civilians fleeing their now-threatened homes. UNSW Kaldor Centre Honorary Professor Guy S Goodwin-Gill has been a leading voice on refugee issues since the first edition of his book, The Refugee in International Law, now in its Fourth Edition, co-authored by Jane McAdam with Emma Dunlop. Here, he explains what is working for Ukraine’s refugees and why.
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Q1 In the first weeks since Russia's invasion of Ukraine, an estimated 3 million people have fled into other European countries – mostly to Poland, Hungary, Romania, Slovakia and Moldova. What role does international refugee law play in how they are practically being received at the border? Was it equipped to deal with this?
International refugee law says you cannot be turned away without the opportunity to apply for protection, but as we know, the situation of the asylum seeker is always precarious. Although in principle the European Union (EU) has a Common European Asylum System, in practice each of the 27 Member States applies it in its own way, which can lead to different outcomes and different standards of treatment.
The reaction in favour of Ukrainians has been dramatic. As you would expect, the process is chaotic, but in general a principled approach has prevailed. A friend and colleague who is posted in Moldova is working on a ‘Green Corridor’ that transports people almost immediately from the eastern border of that country to Romania, where an air transfer program is rapidly coming together (in less than a week) to get vulnerable refugees to various EU countries in the west.
Contrast this with the recent history of States trying to prevent anyone from arriving at all. Ukrainians have been welcomed; the process may not be ideal, but a principled approach appears to be working.
Q2 As you’ve alluded to, some of these countries have been notorious for their treatment of refugees recently, with well-documented use of water cannon, violence at the borders, the construction of vast lengths of fencing and systems of electronic surveillance – all to prevent people seeking asylum from Syria, Afghanistan, Iraq, and other countries. Why the about-face when it comes to Ukrainians?
There is no simple answer. One factor surely must be the imminence, the immediacy of the need for protection, coupled with the fact that the threat is so near. Even here, however, there are problems applying protection on the basis of equality; the welcome has, on occasion, been limited to Ukrainians, leaving out other nationals resident in Ukraine and fleeing exactly the same circumstances.
It would be nice to say that racism or phobia is not part of the reaction, but we need more information before coming to conclusions. What is nonetheless impressive is that it shows that numbers alone are not the problem, at least where there is cooperation between States, and that the underlying response is of non-refoulement, and the sense that everyone in need deserves and should receive protection. It is something innate in humanity, and it transcends the 1951 Convention and the Common European Asylum System.
Q3 Since Russia's invasion, the European Union has activated its Temporary Protection Directive. What is it, and how does it work?
First, ‘temporary protection’ is not the same as is understood in Australia, where it is seen as a grudging recognition of obligation, wrapped around with conditions. In the European context, the Temporary Protection Directive opens the way to welcoming protection, providing safety and guarantees.
Second, the European Union’s ‘organising principles’ – sincere cooperation, solidarity, fair sharing of responsibility – have been very much at the forefront, which has involved stepping back from a focus on the individual in context, to consider the group and its need for protection.
The European Council, acting on a proposal of the European Commission, determines the existence of a mass influx and that the reasons for temporary protection persist. It unanimously adopted the necessary decision on 4 March, and it applies to all Member States apart from Denmark (which can choose to adopt its own rules). In addition, when it comes to the management of external borders, all EU Member States and Schengen Associated States (Norway, Iceland, Switzerland and Liechtenstein), have waived short-term visa requirements since 2017.
And, if we may add to that question, who is covered by the Temporary Protection Directive and how does it work for them?
The Directive comes to the question of relevant displacement from an essentially objective perspective. It applies to a ‘mass influx’ of the displaced who have had to leave their country or region of origin and who are unable to return in safety because of the prevailing situation, in particular, those fleeing armed conflict or who risk systematic or generalised violations of their human rights. They may or may not be refugees in the sense of the 1951 Convention or other relevant instruments providing for protection, and the Directive is not limited to Ukrainian citizens and their family members, but also extends to other third State nationals who should be admitted on humanitarian grounds.
In principle, temporary protection lasts for one year, may be extended for two six-month periods to two years, and a further extension to three years is possible. Employment or self-employment is permitted and is subject to the general law governing remuneration, social security and other conditions as applicable in each Member State.
Member States must also ensure access to suitable accommodation, social welfare, medical care, education, and to the courts (for example, to challenge the denial of temporary protection).
Moreover, as visa-free travellers, Ukrainian citizens have the right to move within the Union for 90 days after being admitted; they can therefore effectively choose the country where they would like to enjoy the benefits of temporary protection. Once temporary protection has been granted, however, they have no right to move with their status, but EU Member States agreed informally not to apply the ‘take-back’ rule (although this is non-enforceable).
Q4 This Directive has never been used before – do you see it as a positive response?
The purpose of temporary protection is to fulfil the need for immediate protection while relieving the pressure on national asylum systems that are contingent on decisions in individual cases. Temporary protection is not to prejudge recognition as a refugee under the 1951 Convention, and asylum can be applied for at any time; individuals may also be excluded from temporary protection in a manner analogous to the 1951 Convention/1967 Protocol and the Qualification Directive.
There is no doubt that the invocation of the Temporary Protection Directive is a positive step, and even though uncertainties remain regarding the future of those who benefit (for example, whether they will be able to return in safety and dignity, or whether they may be able to acquire another status), for the moment it underlines best practice and the power of the principle of non-refoulement.
Q5 The tragic experience of Ukrainian refugees has nevertheless shown the principles that underpin international refugee protection working. What implications might this have on the future for refugee law?
It would be nice to imagine that out of the present tragedy, a new humanitarian model would emerge – one in which the peoples of Europe would realise that protecting refugees, taking them into their homes and schools, engaging with them in the workplace, cooperating with other States, comes with great benefits to the community.
Perhaps some of that will happen, and civil society – those at the front end – will surely learn the lessons. I am not so sanguine regarding the policymakers, however, for whom the refugee and the migrant are a suspect 'other' to be deterred, detained and deported. That said, we should applaud the apparent endorsement – though it could hardly have been otherwise – of a more principled approach to refugees where thinking and acting about the necessity of protection has come first. Ideally, it may provide the groundwork for a group approach to protection and status, but whether its effects will be short-term and reflect a more temporary and geographically proximate protection, we will have to wait and see.
Image © UNHCR Zoran Stevanovic
You can find more about context on humanitarian corridors, temporary protection and resettlement in our post, 'Ukraine: 3 things to know about getting refugees to safety'.