Blog post by Berfin Nur Osso, University of Helsinki, Faculty of Law
On 24 February 2022, the world was devastated by the news covering Russia’s aggression in Ukraine. In search of safety and protection, millions of Ukrainians fled their country and became refugees. This instance of aggression blares out the fact that wars create refugees, with this conflict being no exception. According to UNHCR’s estimation (1 June 2022), the number of refugees escaping Ukraine has reached over 6.9 million and continues to increase.
Diverging Responses to Human Displacement
At the doorstep of this plight, the EU responded to refugees as it ought to. The response was a concerted action between Member States. At EU-level, the Temporary Protection Directive (2001/55/EC) (TPD) has been activated for the first time to instantly and effectively provide assistance to the incoming mass arrivals from Ukraine. The sequence of events leading to the launch of TPD was completed within only a few days. The Commission proposed the activation of TPD on 2 March 2022, a week after Russia’s invasion of Ukraine on 24 February 2022. The Council of the EU unanimously adopted and activated the TPD on 4 March 2022, two days after its proposal by the Commission.
In a nutshell, TPD entitles the beneficiaries of temporary protection to reside in the EU for one to three years; access to information and the asylum procedure; and rights to employment, housing, healthcare, study, and so forth. Persons whose country of origin is not Ukraine but who have received some protection status in Ukraine or who were legally residing there before 24 February 2022 can also benefit from temporary protection in the EU (Article 2 TPD).
In practice, Member States bordering Ukraine have responded in line with EU-level decisions. In her work, Jasmin Lilian Diab addresses how political will existed in Poland to grant Ukrainian refugees access to its territory and its asylum system. By contrast, this response is highly divergent from what happened at the Polish-Belarusian border in 2021. Back then, the EU and Poland labeled the refugees attempting to cross the border as a tool of a so-called ‘hybrid attack’ by Belarus. Poland is now the country hosting the largest number of Ukrainian refugees with over 3.6 million (as of 1 June 2022).
Similarly, Hungary is another country known for its infamous past during the summer of migration in 2015 when the number of asylum claims reached over 170,000. Building physical walls and fences along its borders and using Serbia as a ‘safe third country’ (STC), Hungary’s response revolved around keeping refugees outside its borders. In a landmark case at the European Court of Human Rights, Ilias and Ahmed v. Hungary (2019), Hungary justified its strict policies against refugees by citing the need for eliminating an unprecedented crisis caused by ‘fake asylum-seekers and asylum-shopping’ (para 112). By contrast, Hungary now hosts over half-a-million Ukrainian refugees. These divergent responses are difficult to reconcile with the apparent similarities between the causes of these large-scale movements: those who fled Syria and other war-torn countries for safety and protection in Hungary and other EU Member States in 2015 would appear no less justified in seeking asylum than Ukrainians.
Of course, much is written about how these diverging responses emanate from ethnic, cultural, socio-economic ties and shared identities between EU Member States and Ukrainians. I am not here to discuss this. Rather, I draw attention to how these responses determine the chances of refugees to fall into the ambit of either protection or exclusion from state territories and asylum systems.
Some are Worthy of Protection, Others are Worthy of Expulsion
The case of Ukraine evinces that a just response and equal treatment of refugees is indeed possible. The 2015 summer of migration was a smaller-scale phenomenon with 1.82 million arrivals at EU’s external borders compared to the current circumstance of Ukrainian refugees. Nonetheless, the response of the EU and Member States was far more stringent. The total number of asylum applications lodged in the EU in 2015 was 1.2 million, less than one-fourth of the current number of Ukrainian refugees in the EU. With over 850,000 arrivals in 2015 at the Eastern Aegean islands, the Greek-Turkish maritime border received the paramount attention.
The situation at the Greek-Turkish border over 2015-2016 evinces the hypocrisy of ‘including some, excluding others’ in the EU. This was particularly manifested with the EU-Turkey Statement (ETS) in March 2016 and a joint decision of the Greek Ministries of Foreign Affairs and Immigration and Asylum (JMD) in June 2021. The fundamental distinction within EU’s asylum acquis and Member States’ asylum systems revolves around the protection of ‘real refugees’ and the exclusion of ‘irregular migrants’. The commonality of Syrians and non-Syrians affected by the ETS and the JMD lies at the core of the approach that perceives them not as protection seekers but irregular migrants. As part of the Statement, Turkey agreed, inter alia, on accepting ‘the rapid return of all migrants not in need of international protection crossing from Turkey into Greece’. This implied the de facto designation of Turkey as a STC for those labeled as irregular migrants. This measure is consolidated with the Greek JMD designating Turkey as a de jure STC for Afghan, Bangladeshi, Pakistani, Somali, and Syrian nationals. The two milestones ensured the expulsion of ‘undesired’ populations from Greek and EU territory.
Although the situation of Ukrainian refugees and of those arriving at EU borders over 2015-2016 is migration en masse, the EU does not consider the latter as genuine refugees. In fact, the contrast between ‘the rapid return of irregular migrants’ under the ETS and EU’s rapid proposal and activation of TPD for Ukrainian refugees crystallizes the inherent paradox within the EU’s asylum system. This paradox is the thin line between protection and expulsion. The ‘protection of …’ manifests what refugees ought to have under the international refugee and human rights protection regime. By contrast, the ‘expulsion of …’ reveals the categorization of some populations labeled as irregular migrants as ‘returnable’ subjects for their exclusion from EU territory and its asylum system.
The Thin Line Between Protection and Expulsion
It is hereby appropriate to recall UNHCR’s Executive Committee Conclusions No 15 (XXX) adopted in 1979 (ExCom No 15). According to para (f), ‘[i]n cases of large-scale influx, persons seeking asylum should always receive at least temporary refuge.’ Only in individual cases, not in mass migration situations, the refugee may be called to claim asylum first from a STC if s/he has a connection or closer links with that country, such as through transit (ExCom No 15, para (h)(iv)). In a similar vein, Sir Elihu Lauterpacht and Daniel Bethlehem discuss in UNHCR’s Global Consultations on International Protection (para 76) that ‘where States are not prepared to grant asylum …, they must adopt a course that does not amount to refoulement … [including] removal to a safe third country or … temporary protection’.
In mass migration circumstances, therefore, at least the provision of temporary protection must be considered first, before considering the expulsion of refugees to their home country or to a third country. The former is what happened in the situation of Ukrainian refugees. The latter, however, is the solution deemed ‘ideal’ by EU decision makers for undesired persons. In fact, with the adoption of national lists of STCs as in the case of Hungary and Greece, the expulsion of undesired populations, in contrast to individuals, is rendered legal. This is notwithstanding the state obligations under the international refugee and human rights protection regime, such as the non-refoulement principle.
The major justification of states behind the expulsion of refugees to STCs emanates from a distorted reading of the Refugee Convention. Article 31 establishes the non-penalization of refugees coming to or staying in the territories of states in an ‘unauthorized’ manner. Nevertheless, this clause applies only if refugees are ‘coming directly’ from their countries of origin/residence to those states, as well as immediately presenting themselves and the reasons for their illegal entry/stay to the state authorities. Many states contend, therefore, that since these irregular migrants are not coming directly into their territories, they are instead in search of improved life conditions, such as better work or study opportunities. Hence, they can be expelled.
The ‘coming directly’ clause would simply not apply to Ukrainian refugees. In the first place they are not considered illegally entering/staying in the EU. In fact, legal venues are possible: the 2014 EU-Ukraine Association Agreement grants a visa waiver for Ukraine nationals for up to ninety days. In addition, Ukrainians can travel visa-free to 143 countries, making Ukraine rank 34th in the world for its nationals’ ability to access other states without a visa requirement.
In contrast to Ukraine, nationals of Syria, Iraq, Afghanistan, and Pakistan (countries where most refugees in the EU originate from) rank in the bottom ten countries in the world for visa-free access to other states. In fact, rather than facilitating safe avenues for protection seekers aiming to reach EU territory during the summer of migration and thereafter, the EU sought to close all legal avenues to refugees coming from the Middle East and North Africa. The only legal avenue in the EU-Turkey Statement is offered only to Syrians within the so-called ‘one-for-one’ resettlement scheme. The limited quotas promised for ‘legal’ Syrians in Turkey eligible for resettlement in the EU reveals the underlying rationale of penalizing irregular migrants with the denial of their access to EU territory and its asylum system.
Refugees fleeing these countries, therefore, are compelled to resort to venues considered as unauthorized by the EU. Since they cannot reach EU territory through legal and safe avenues due to all the doors shut in their faces, they find themselves seeking to make dangerous journeys via migrant smugglers. However, merely ‘coming indirectly and illegally’ to EU territory constitutes a reason for their returnability to third states for ‘protection elsewhere’ under STC rules. This phenomenon deepens the paradox of the EU asylum acquis. While the EU produces the social phenomenon of irregular migration, it also adopts measures to suppress this phenomenon. Thus, it uses the legally produced process of irregular migration for justifying the expulsion of undesired populations. Consequently, the seeking of asylum by the undesired in the EU becomes nearly impossible; they remain in the ambit of expulsion.
The contemporary experiences of refugees remind us how borders can abruptly emerge, expand, and subvert the established human rights and refugee protection standards. This reveals the inherent hypocrisy of borders. It demonstrates how permeable borders are not permeable for some refugees, and how this impermeability is justified by states. By virtue of borders, there is a paradox entrenched in asylum systems; a very thin line between ‘(temporary) protection’ and ‘protection elsewhere’. The latter is used for justifying the responses of states against irregular migrants. In the situation concerning Ukraine, the response of EU and Member States to refugees at their doorsteps has been more welcoming than ever. By contrast, the expulsion of some undesired protection seekers deemed as irregular migrants to the so-called safe third countries and back home is rendered legal with references to the very fundamentals of international refugee law. As a result, populations deemed worthy of exclusion are thrown into the black hole of ‘irregularity’ upon which any legal and political decision taken by states are justified.
About the Author
Berfin Nur Osso is a doctoral candidate at the University of Helsinki, Faculty of Law, and a Project Researcher in Academy of Finland-funded projects at the University of Eastern Finland Law School. Osso’s doctoral research investigates the interplay between the externalization of migration management and the political agency of refugees with theoretical and empirical inquiries in the Greek-Turkish context. Osso is also enthusiastic as a political cartoonist about reflecting the contemporary phenomena within the realm of law, society, and politics. She is also available on Twitter.
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