Facing the Ukrainian humanitarian crisis
On 24 February, Ukraine was invaded by Russian armed forces. More than twenty years after the civil war in the Balkans, war returned on European soil. Facing such extraordinary challenge, the European Union (EU) showed a perhaps unexpected proactiveness, imposing sanctions on Russia and providing military support to Ukraine.
The conflict has resulted in a humanitarian crisis of unprecedented proportions in the post-World War II Europe. In less than two weeks, over 2 million persons have fled Ukraine to relocate to the bordering countries, most of which are EU Member States (MS). The Commission estimates that the inflow of displaced persons could reach 6.5 million. In comparison, it took one year to reach one million of arrivals during the 2015 "migration crisis".
The EU faces once again the question of receiving within its borders displaced persons who are fleeing war. Yet, the war today is at the doors of the EU and the latter entertains with Ukraine a relationship that has strengthened over time. As is known, the EU has not proven particularly capable of answering swiftly, never mind humanely, to migration crises in the past. In 2015, the war in Syria – which still represents one of the most serious humanitarian catastrophes in history – has caused millions of people to flee to Europe in life-threatening journeys, in the absence of any relaxation of borders control or establishment of humanitarian corridors. That crisis deeply challenged the capacity of the EU of activating solidarity mechanisms between MS and – most of all – to live up to its standards in terms of protection of human life.
In the context of the Russian attack on Ukraine, the EU and its MS seem to have reacted in a way that has taken by surprise most of those who study EU migration policy and law. For instance, Poland, which has been refusing to admit migrants passing through Belarus in the past months – a course of conduct with tragic consequences on those who were left out in the cold in between the two countries – is receiving more than a hundred thousand people per day fleeing from Ukraine. To deal with this massive influx of persons, mostly women and children, since Ukrainian men between 18 and 60 are banned from leaving, the EU (and its Member States) had to make a U-turn on their previous perspective on borders control and asylum and rethink the approach that emerges from the New Pact on Migration and Asylum.
There are two main instruments deployed by the EU to face the migratory implications of the Ukrainian humanitarian crisis: the adoption of Guidelines for national border guards on how to apply the Schengen rules in this exceptional context and the activation of the Temporary Protection Directive.
HOW DOES THE HUMANITARIAN CRISIS IMPACT THE EU EXTERNAL BORDER POLICY? By Fulvia Ristuccia
In the Schengen area, which covers most of the EU Member States (MS) and some non-EU States, in principle, internal borders checks are abolished. The creation of a single internal space of unhindered movement has implied a transfer of border controls towards the external frontier, which has become a common EU border, and some degree of centralization and standardisation of entry conditions and management of checks. Against this background, the frontier between Poland, Slovakia, Hungary, and Romania, on one side, and Ukraine, on the other side, is a common EU external border.
In order to strike a balance between the facilitation of exit from the Ukrainian territory towards safer countries and the need to safeguard security and prevent illegal migration in the whole Schengen area, the Commission has adopted some Guidelines for national border guards on how to apply the Schengen rules in this exceptional context.
EU MS that are part to Schengen or are candidate to become Schengen countries are expected to apply the Schengen Borders Code (SBC) which prescribes that MS thoroughly verify the identity of those who cross the borders and ensure that only those who satisfy the entry requirement are allowed to get in the Schengen Area. The Guidelines' aim is to loosen those borders checks to bring to safety as swiftly as possible everybody who is fleeing Ukraine and avoid queues, that may imperil the safety of those trying to enter into the EU. In this regard, the Guidelines list the criteria to identify who can be subject to loosened or no border control (including the person's vulnerability, the type of document the person holds, EU citizenship etc.). Yet, when in doubt about the identity of the person crossing the border or when the person may pose a threat to security, the normal rules apply.
Always with a view to avoid queues at the borders, the Commission has urged MS to establish new temporary entry points , when official entry points are overwhelmed or blocked. The Guidelines also encourage MS to first let the displaced persons in and then conduct more thorough checks on identity and entry requirements in safer places, removed from the actual border with the Ukrainian territory.
As to the legal requirements for entry, the Schengen acquis establishes common rules in relation to visas for short-term stay (less than 90 days). When the visa is necessary – which is not the case for countries benefitting from a visa waiver, like Ukraine – it must be requested before travelling. Under the uniform visa rules, if a third-country national (TCN) intends to remain in the EU for longer than 90 days for reasons other than short-term stay, they must ask for a different visa than the short-term Schengen visa. In particular, individuals cannot use the Schengen visa to travel to the EU to seek asylum: in order to request asylum one should already be in the EU territory. This made matters very complex for Syrians fleeing the war, because no humanitarian corridors could be established by allowing Syrians to enter the EU legally via a Schengen visa and apply for asylum once in the EU, but it should be less of a problem in the case of those fleeing Ukraine. Indeed, Ukrainian nationals can enter visa free, whereas MS can authorise the entry on humanitarian grounds of non-Ukrainian TCNs who resided in Ukraine even when they do not hold a valid visa. Once their entry is authorized, their right to stay will be subject to the ordinary rules or the TPDs, depending on their status. For TCNs who do not benefit from the TPD protection and are not able to remain in the EU on other grounds, the humanitarian visa aims at ensuring that they can return to their country of origin.
Conversely, pursuant to the Guidelines, MS should encourage Ukrainian nationals' secondary movements to the MS where they have friends or family. For this purpose, Ukrainian nationals are allowed to move across the EU even when their documents have expired or are not valid for travelling. The Commission encourages MS not to sanction carriers – that are normally responsible for checking the validity of travel documents – who embark Ukrainian passengers without valid documents, especially when travelling towards or from a MS where internal border checks are still in place, either because those MS are not yet part of Schengen or because they have temporarily reintroduced internal border checks.
Finally, but not less relevant, the Guidelines cater for a relaxation of checks on personal belongings and pets. It seems just reasonable that those who are fleeing war should be able to carry with them, at the easiest possible conditions, their belongings and their animals to minimise the trauma of displacement and facilitate their lives in the EU.
These measures are temporary derogations from ordinary procedures and their effectiveness is still subject to domestic implementation and some discretion of national authorities. However, they demonstrate a change of direction from the New Pact on Migration and Asylum. The latter is based on a preventive approach that favours pre-entry screening for persons who irregularly entered the EU, especially when a massive influx of persons occurs due to a migrations crisis, and this creates a legal fiction that one has not entered the EU until the border procedure is over and the individual is cleared for entry. On the contrary, the Guidelines, are commendably based on a mechanism of first bringing people to safety and then conducting migration and security checks.
IS THE EU READY TO MANAGE A MASS INFLUX OF DISPLACED PERSONS? By Marco Gerbaudo
On 2 March the Commission proposed the activation of the Temporary Protection Directive. The Directive was approved in 2001 to provide immediate protection in cases of a mass influx of displaced persons. Until now, it was never activated. The Directive grants its beneficiaries a residence permit and a set of rights including access to employment, housing, social welfare, medical treatment, education and family reunification.
The Commission presented the activation of the Directive as a win-win solution. For persons fleeing Ukraine, temporary protection ensures immediate assistance, having a declaratory status and granting collective recognition: protection is automatically granted to everybody falling into one of the categories listed below. Furthermore, temporary protection provides for more rights and guarantees than the status of asylum seeker, for which access to labour market can be postponed for some time after lodging the application and family reunification is not accessible until the recognition of international protection. For Member States, temporary protection is intended to avoid their asylum systems being overflooded with applications. Based on data on the 2014 Crimea crisis, the Commission expects that roughly 50% of the persons fleeing Ukraine would apply for asylum if not provided an alternative. The temporary protection is such an alternative, buying Member States much needed time.
On 3 March, the Council of the EU approved unanimously the Commission proposal, and the implementing decision (TPD) entered into force the day after. The TPD has a duration of one year and, unless the Commission proposes otherwise, it is extended automatically for one year. Afterwards, the Commission can further propose a one-year extension.
The personal scope of the TPD covers three categories of displaced persons:
a) Ukrainian nationals;
b) Third-country nationals (TCNs) either legally residing on a long-term basis in Ukraine or unable to return to their country of origin (e.g., refugees);
c) Family members of persons referred in points (a) and (b).
The TPD proposes, but does not oblige, Member States to extend protection to TCNs residing on a short-term basis in Ukraine, like students. The personal scope is further limited timewise: to obtain protection, persons must not only fall into one of the abovementioned categories but have escaped from Ukraine on or after 24 February 2022. However, the TPD invites Member States to include those who fled Ukraine not long before that date or who were in the EU just before it (eg, on holidays). Finally, persons falling outside the scope of the TPD are allowed to enter the Union on humanitarian grounds to safely return to their country of origin.
There is no explicit provision on how the mass influx should be redistributed amongst Member States: it is up to displaced persons to choose the Member State of destination. Being Ukraine a visa-free country, its citizens have always enjoyed 90 days of free travel within the Schengen area. In this period, it is expected that displaced Ukrainians will move to the Member State where they want to reside. This mechanism however does not apply to those third-country nationals who are under the scope of the TPD but are citizens of a non-visa free country: will they have to require temporary protection in the first state of arrival? Or will they receive a visa to move across the EU?
With the TPD, the legal status of (most of) the displaced persons coming to Ukraine is covered in the short term. The challenge is how to tackle the emergency in the long run. The unexpressed hope is that with the end of the war, come what may, displaced persons will return home. In any case, once the protection period ends, beneficiaries will face two possibilities: ask for asylum in the EU, possibility available at any time also during the temporary protection, or face repatriation.
The TPD is an unprecedented demonstration of European unity in a sensitive field such as migration. The decision is in stark contrast with the EU reaction to recent migration crises, as in Belarus and Turkey, where incoming migrants were defined as "hybrid attacks" to the security of the Union. The decision also greatly departs from the New Pact on Migration and Asylum, which included a Commission's proposal to repeal the Temporary Protection Directive as it "no longer responds to Member States' current reality". The collective and immediate protection of the TPD clashes with the multi-layered and cumbersome process of reception and migration management proposed in the New Pact. The focus on welcoming and providing shelter to those in need of the TPD is substituted in the New Pact with screening procedures at the border, during which the person physically present on EU territory is not legally considered on European soil and the emphasis on the need for swift and efficient return procedures. Finally, the comeback of the "welcome culture" across Member States is not reflected in the New Pact, where the intra-state solidarity is watered down to a cluster of "solidarity contributions" conceptualising migration as a burden, prioritizing the prevention of secondary movements and again focused on return.
The Ukrainian crisis forced the EU to alter its reform process of the European migration policy. Despite its unique features, could this humanitarian crisis provide the momentum for changing the EU migration policy for the better?