The Temporary Protection Directive in the Context of the 2015/2016 and the 2022/2023 ‘Crises’: Geopolitics, Race or Both?
Luana Cardoso and Matilde Felgueiras
Abstract
The Temporary Protection Directive was activated only once, in 2022, due to the Russo-Ukrainian War and has raised concerns of racialized discrepancies in the treatment of different refugee ‘crises’. This blogpost explores the reasons put forward for not activating the TPD in relation to the 2015/2016 ‘crisis’ and for activating it in 2022, and questions them against the backdrop of existing critiques. It suggests that the discrepancies between the two ‘crises’ might be best explained through the subtle workings of race and geopolitical concerns, instead of either one or the other..
Keywords
Temporary Protection Directive; Refugee ‘crises’, Russo-Ukrainian War; EU asylum law and policy.
1. Introduction
The Temporary Protection Directive (TPD) was established in 2001 as a legal mechanism designed to provide immediate assistance to persons from “third countries” in situations of ‘mass influx’. This Directive was activated for the first time in 2022 in the context of the Russo-Ukrainian War. From the Russian annexation of Crimea in 2014 to its invasion of Ukraine in 2022, this conflict has been seen as the most important military threat to the EU since the end of the Cold War.[1]
According to the UNHCR, the ongoing Russo-Ukrainian war has resulted in the displacement of over 6 million refugees, and over 5 million Ukrainian refugees registering for Temporary Protection or similar national protection schemes in Europe.[2] The displacement of people from Ukraine led to the activation of the TPD 10 days after the war started. This activation raises the question of why a Directive that had remained dormant since 2001, was activated 21 years after its creation, especially when considering other refugee ‘crises’, from the Arab Spring to the conflict in Syria and other countries in the Middle East and Africa. In light of these circumstances, the activation of the TPD prompts an examination of the institutional narratives surrounding the different ‘crises’, especially those of 2015/2016 and 2022/2023, given the large numbers of displacement in both contexts, and how they relate to already-existing critiques of the racialized discrepancies between the two.
2. The Temporary Protection Directive and its Activation
The TPD emerged as a response to the post-conflict situation in the former Yugoslavia.[3] Before the outbreak of conflicts in 1992, there was no common approach to offering temporary protection among EU Member States.[4] People fleeing former Yugoslavia could receive authorizations for temporary stay in some States, but the regime varied from country to country.[5] This displacement posed a challenging test for EU Member States to manage an unexpected influx of displaced persons.[6] Despite some initial efforts to offer temporary protection to displaced individuals, Member States lacked the willingness to collectively address the task of offering protection to those in need.[7] The TPD was introduced as a response to these developments. It has been seen as an instrument of solidarity and responsible sharing among Member States concerning EU asylum policies.[8] It offers a group-based temporary protection, allowing displaced persons to access the territory of EU Member States to reside, as well as enjoy a set of socio-economic rights, such as access to the labour market and social welfare, without going through the standard burdensome procedure of individual applications for international protection. The standard regime of the Common European Asylum System is suspended for the entire duration of the temporary protection, which can go up to three years.
Many authors have explained the lack of activation of the TPD prior to the Russo-Ukrainian war in terms of the procedural difficulties surrounding its activation, given that the European Commission must propose its activation and that the Council must adopt such proposal with a qualified majority vote. However, a merely procedural explanation does not hold when considering the EU’s support to Ukraine and its population without any procedural hurdles. In March 2022, the Commission put forth a proposal to activate the Directive for the first time. Remarkably, just two days later, the Council unanimously adopted an Implementing Decision with the effect of introducing temporary protection for individuals fleeing the war in Ukraine. This swift activation of the Directive raises the question of why a Directive that had remained dormant since 2001 was expediently put into action for the first time, and why it was not triggered in 2015/2016.
3. Reasons for not activating the TPD in 2015/2016
Some academic and institutional voices prior to the Russo-Ukrainian war put emphasis on the fact that the reasons for not activating the TPD had some objective explanations, the question having been raised especially in relation to the2015/2016 ‘crisis’. Many have emphasized the procedural hurdles for activating the TPD, as well as the vagueness of the concept of ‘mass influx’, the existence of which must be established when triggering the TPD. [9] Building on these procedural and definitional explanations, some have argued that the activation of the TPD should be understood as a promising achievement.[10]
Others have put additional emphasis on the fact that the TPD is a last resort mechanism, and should be triggered only when all the other available mechanisms have proved insufficient. Under this perspective the Hotspot approach introduced in 2015 appears as a solution for supporting frontline Member States at a time when the need to consider the ‘last resort’ solution allgedly had not yet arisen.[11] In that context, it was asserted that “national asylum seekers can handle the arrival of a significant number of refugees without activating the Temporary Protection Directive.”[12] This statement stands at odds with the developments in Italy and Greece, the countries whose asylum procedures have been – and continue to be – the most affected since 2015.[13]
Other views, including that of the Council of the EU, stressed that the TPD as such was inadequate to address the challenges of the 2015/2016 ‘crisis’. Indeed, the Council stated that “the system of temporary protection under that directive did not actually provide a solution to the problem in the present case”.[14] The main reason put forward was that the system of temporary protection would not solve the situation in Greece and Italy, whose reception facilities were already saturated, simply because such system allows eligible persons to receive protection in the Member States where they are already located.
This statement also stands at odds with the 2022 implementation of the TPD, when Member States decided not to apply Article 11 of the TPD, under which a “take-back” procedure would be required if a displaced person obtained temporary protection in a Member State but tried to move to another Member State.[15] In other words, under the Temporary Protection Directive, Member States can decide not to consider the State of first arrival as the only state in which a beneficiary of temporary protection can legally reside. The decision not to apply Article 11 might have been motivated in the context of the Russo-Ukrainian war by the fact that Ukrainians can travel to the Member State of their choice as they are exempt from the requirement to possess a visa for short-term stays, but nothing in the TPD indicates that the decision to exclude Article 11 should be confined to such cases.
4. Existing Critiques
If the explanations exposed above do not hold, other reasons must explain the different approaches to the 2015/2016 and the 2022/2023 ‘crises’. Critical academic and civil society voices have argued that the activation of the TPD was based on “Eurocentric, and fundamentally racialized, expressions of solidarity.”[16] For them, the main explanation of the activation of the TPD in 2022 but not in 2015 would be that the EU and its Member States perceive the persons fleeing the Russo-Ukrainian war differently from other refugees, as these are mainly European White refugees. Notably, even though the TPD system is conceived for situations of “mass influx”, understood as involving a“large number of migrants”, similar terms were used in the 2015/2016 context. In this sense, the Directive was only activated “in a context that was not perceived as raising issues of irregular migration (…) the persons fleeing the Russo-Ukrainian war appear(ing) as less – if at all – threatening than those fleeing the conflicts in the MENA region”.[17]
Some of these critiques have also emphasized the discrepancy in the statements and attitudes of certain political figures, especially right-wing leaders, who have welcomed people displaced by the Russo-Ukrainian war but have displayed strong anti-migration attitudes followed by restrictive policies, mainly within the 2015/2016 crisis. The Hungarian Prime Minister Viktor Orbán, for example, stated that “everyone fleeing Ukraine will find a friend in the Hungarian state” but previously – in the mid 2010s – went as far as to build barbed-wire fences and to establish specialized “border hunters” equipped with 4×4 vehicles, night-vision goggles, and even migrant-sniffing dogs.[18]
The same goes for Poland, which received most displaced persons in the context of the Russo-Ukrainian war, offering free travels by train to those wishing to cross the border. Some politicians have made more visibly racist statements. The Bulgarian Prime Minister Kiril Petkov, for example, told journalists that “there is not a single European country now which is afraid of the current wave of refugees,” after all, “these are not refugees we are used to… These people are Europeans. These people are intelligent. They are educated people… This is not the refugee wave we have been used to, people we were not sure about their identity, people with unclear pasts, who could have been terrorists.”[19] The association between non-Europeans with terrorists, as opposed to intelligent and educated Europeans, who are mostly White, is indeed a strikingly racist social construction.
Others, however, have opposed the explanation of the discrepancies between 2015 and 2022 in terms of racial biases. They have put more emphasis on contemporary geopolitical considerations. These are to be understood as unfolding at least since Russia annexed Crimea in 2014, when the EU has started to gradually cut off its links with the Kremlin on the economic, social, and political levels and increasingly open its borders and forge close relationships with Ukraine.[20]
In this vein, Skordas contends that the activation of the TPD does not show a racial discriminatory act from a legal perspective, and stresses the importance of the existence of geopolitical interests to trigger the process of the activation of the TPD. In this sense, the author argues that this mechanism would not have been implemented if its activation did not negatively affect “the Union´s fundamental interests and its security”[21]. In this sense, the activation of the TPD would be in line with the Union´s interests, as it is linked with “security (…) and it is strictly connected to the Russian aggression and to the direct threat to the European and global security and stability”.[22] In other words, as the acts of aggression are taking place in Europe, making them a close threat , the present situation is viewed as deeply connected with the EU and its interests. The EU´s particular geopolitical interest in the war, and Ukraine’s aspiration to become an EU Member State would justify European solidarity, positioning it within the remnants of the Cold War legacies.
Ursula von der Leyen’s statements have also alluded to geopolitical concerns when specifically mentioning that “all those fleeing Putin’s bombs are welcome in Europe.” [23] However, she also stated that Europe generally “stands by those in need of protection” and provides “protection to those seeking shelter and we will help those looking for a safe way home.”[24] In other words, the geopolitical concerns appear as inserted in a wider politics of reception and protection of those in need, something that was not, however, visible in the 2015/2016 context, which largely concerned persons fleeing conflicts in the Middle East and Africa.
5. Concluding Remarks: Some Food for Thought
The debate that has unfolded so far around the discrepancies between 2015/2016 and 2022/2023 ‘refugee crises’ seems to consider that such discrepancies can be approached either in terms of a racialized treatment or in terms of contemporary geopolitical considerations, but not both. We would like to suggest that the two are not necessarily incompatible: they might operate simultaneously.
As emphasized by Filipo Grandi, the United Nations High Commissioner for Refugees, “other wars and conflicts around the world – have not received the same treatment as Ukrainian refugees”.[25] It so happens, not accidentally, that the only war that triggered a straightforward welcoming solution concerned a predominantly white population, whose access to the EU had been facilitated by the EU in 2017 through a visa exemption for short stays. It so happens, again not accidentally, that those fleeing conflicts in the Middle East and Africa are largely subject to visa restrictions and therefore qualified as ‘irregular migrants’ before being considered as people in need of international protection. We would like to suggest that, although racial discrimination might be difficult – though not impossible – to establish from a strictly legal perspective,[26] we might be witnessing the subtle workings of the racialized imprints of European colonial geopolitics in conjunction with more recent geopolitical concerns shaped by Cold War legacies.
Indeed, EU Visa Policy and the EU Regulation establishing the list of countries whose nationals must apply for a visa have been as such criticized in academic circles for creating a differential scheme under which countries with a predominantly White population are not subject to visa restrictions.[27] The nationals who must obtain visas to reach the EU, in this sense, face more obstacles for reaching their destination and are constructed as ‘irregular’ migrants before being considered as displaced persons in need of protection. It would be reductive to consider the discrepancies between the 2015/2016 and the 2022/2023 ‘crises’ without taking seriously the productive dimension of the EU Visa Policy and its racialized effects, at least from the perspective of critical race theory if not from that of the strictly legal understanding of ‘racial discrimination’.
It would also be reductive to see these discrepancies without taking seriously Europe’s contemporary geopolitical concerns, security threats at the proximity of EU external borders having occupied indeed an important place in the context of the Russo-Ukrainian war. The two might be operating simultaneously without being, however, equally visible.
HOW TO CITE THIS BLOG POST: Cardoso, Luana, and Felgueiras, Matilde, “The Temporary Protection Directive and its Application in the Context of the Russo-Ukrainian War”. NOVA Refugee Clinic Blog, September 2023, Available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-temporary-protection-directive-in-the-context-of-the-2015-2016-and-the-2022-2023-crises-geopolitics-race-or-both
[1] Christian Freudlsperger and Frank Schimmelfennig, ‘Rebordering Europe in the Ukraine War: Community Building without Capacity Building’ (2022) 46(5) West European Politics 843.
[2] UNHCR, ‘Ukraine Refugee Situation’ (2023) <https://data.unhcr.org/en/situations/ukraine> accessed 15 September 2023.
[3] Tamara Kortukova and others, ‘Peculiarities of the Legal Regulation of Temporary Protection in the European Union in the Context of the Aggressive War of the Russian Federation against Ukraine’ (2022) 36(2) International Journal for the Semiotics of Law 667.
[4] H Deniz Genç and N Aslı Şirin Öner, ‘Why Not Activated? The Temporary Protection Directive and the Mystery of Temporary Protection in the European Union’ (2019) 7(1) International Journal of Political Science & Urban Studies 1.
[5] Michael Barutciski, ‘EU States and the Refugee Crisis in the Former the Yugoslavia’ (1994) Refuge: Canada’s Journal on Refugees 32.
[6] Khalid Koser and Richard Black, ‘Limits to Harmonization: The “Temporary Protection” of Refugees in the European Union’ (1999) 37(3) International Migration 521.
[7] Genç and Öner, supra n 4.
[8] Peter Rodrigues and Christa Tobler, ‘Reception of People from Ukraine: Discrimination in International Protection?’ (Leiden Law Blog 17 May 2022) <https://www.leidenlawblog.nl/articles/reception-of-people-from-ukraine-discrimination-in-international-protection> accessed 15 September 2023.
[9] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L 212, Article 4(2) (Temporary Protection Directive). Esin Küçük, ‘Temporary Protection Directive: Testing New Frontiers?’ (2023) 25 European Journal of Migration and Law 1, 16. Meltem Ineli-Ciger, ‘Time to Activate the Temporary Protection Directive’ (2016) 18 European Journal of Migration and Law 1.
[10] Esin Küçük, ‘Temporary Protection Directive: Testing New Frontiers?’ (2023) 25 European Journal of Migration and Law 1.
[11] Marco Gerbaudo, ‘The European Commission’s Instrumentalization Strategy: Normalising Border Procedures and de Facto Detention’ (2022) 7 European Papers – A Journal on Law and Integration 615, 616<https://www.europeanpapers.eu/en/europeanforum/european-commission-instrumentalization-strategy-border-procedures-detention>.
[12] Sergio Carrera and Meltem Ineli-Ciger, EU Responses to the Large-Scale Refugee Displacement from Ukraine : An Analysis on the Temporary Protection Directive and Its Implications for the Future EU Asylum Policy 66 (European University Institute 2023).
[13] See Giuseppe Campesi, ‘Seeking Asylum in Times of Crisis: Reception, Confinement, and Detention at Europe’s Southern Border’ (2018) 37 Refugee Survey Quarterly 44; Nikos Kourachanis, ‘Asylum Seekers, Hotspot Approach and Anti-Social Policy Responses in Greece (2015–2017)’ (2018) 19 Journal of International Migration and Integration 1153.
[14] Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council, Judgement of 06.09.2017, ECLI:EU:C:2017:631 para. 256.
[15] Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] OJ L 71.
[16] Jackson Sow, M. ‘Ukrainian refugees, race, and international law’s choice between order and justice’ (2022) 116(4) American Journal of International Law 699. See also Cathryn Costello & Michelle Foster, ‘(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?’ (2022) 22(3) International Journal of Discrimination and the Law 245; Veronica Corcodel and Dimitra Fragkou, ‘Europe’s Refugee “Crises” and the Biopolitics of Risk’ (2023) European Journal of Risk Regulation 1.
[17] Veronica Corcodel and Dimitra Fragkou, ‘Europe’s Refugee “Crises” and the Biopolitics of Risk’ [2023] European Journal of Risk Regulation 1, 9
[18] Anthony Faiola, Rick Noack and Karla Adam, ‘Suddenly Welcoming, Europe Opens the Door to Refugees Fleeing Ukraine’ Washington Post (1 March 2022 <https://www.washingtonpost.com/world/2022/02/28/ukraine-refugees-europe/> accessed 15 September 2023.
[19] Ibid.
[20] Christian Freudlsperger and Frank Schimmelfennig, ‘Rebordering Europe in the Ukraine War: Community Building without Capacity Building’ (2022) 46(5) West European Politics 843.
[21] Achilles Skordas, ‘Temporary Protection and European Racism’ in Sergio Carrera and Meltem Ineli-Ciger, EU Responses to the Large-Scale Refugee Displacement from Ukraine : An Analysis on the Temporary Protection Directive and Its Implications for the Future EU Asylum Policy 429 (European University Institute 2023) <https://hdl.handle.net/1814/75377> accessed 15 September 2023.
[22] Ibid.
[23] Commission, ‘Ukraine: Commission proposes temporary protection for people fleeing war in Ukraine and guidelines for border checks’ (Press Release, 2022 <https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1469> accessed September 15 2023.
[24] Ibid.
[25] UNHCR, ‘High Commissioner’s Message on the International Day for the Elimination of Racial Discrimination’ (2023) <https://www.unhcr.org/news/news-releases/high-commissioners-message-international-day-elimination-racial-discrimination-0> accessed 15 September 2023.
[26] Skordas (n 21).
[27] Tendayi Achiume, ‘Racial borders’ (2021) 100(3) Georgetown Law Journal 445; Marisa Jackson Sow, ‘Ukrainian refugees, race, and international law’s choice between order and justice’ (2022) 116(4)American Journal of International Law 701.