Preferential, differential or discriminatory? EU protection arrangements for persons displaced from Ukraine
Forum on the EU Temporary Protection Responses to the Ukraine War
Contribution by Julia Kienast, Nikolas Feith Tan and Jens Vedsted-Hansen
27 April 2022
The recent mass displacement, caused by the Russian invasion of Ukraine on 24 February 2022, triggered a response that surprised many observers of EU migration and asylum policy. Instead of following the long-lasting trend of containment and deterrence at the external borders, the EU and its Member States kept borders open to persons fleeing the armed conflict in Ukraine. In particular, EU Member States agreed at long last to activate the Temporary Protection Directive (TPD) to grant fast and easy access to protection in the EU for Ukrainians. However, the open border policy did not apply equally to all persons arriving at the external borders as differentiations due to nationality, residence status as well as gender and race have been reported. Moreover, beneficiaries under the TPD experience differential treatment in comparison to asylum seekers, refugees and subsidiary protection holders under the EU asylum acquis.
In light of these emerging policies and practices, this contribution provides a legal analysis investigating the EU’s preferential, differential or even discriminatory treatment afforded those displaced from Ukraine and asylum seekers and refugees from other parts of the world. This contribution examines these questions with regard to access to the EU territory, secondary movements, the scope of beneficiaries, asylum procedures and standards of treatment.
The principle of non-discrimination
Most national, regional and international human rights regimes include the principle of non-discrimination and, for this reason, the principle is even considered to constitute jus cogens. The prohibition of discrimination demands that people in comparable or ‘relevantly similar’ situations must be treated equally unless there are objective justifications for the differential treatment.
Such protections can be found in a range of international and regional treaties, including Article 14 ECHR, Article 21 EUCFR, Article 2(2) ICERD, Article 3 ICRSR, Article 26 ICCPR and Article 2(2) ICESCR. These provisions usually provide a list of protected grounds which may not be used to justify differential treatment, such as sex, race and national origin. Under Article 14 ECHR, for example, the test for discrimination comprises two limbs: whether there has been a difference in treatment of persons in analogous or relevantly similar situations; and whether such differential treatment is objectively justified in pursuing a legitimate aim in a manner that is reasonably proportionate to that aim.
At the same time, preferential treatment of certain categories of non-citizens is a widely accepted norm in the context of migration control. Although it is generally not required to treat non-citizens equally to citizens, there are significant limitations as regards the permissibility of differential treatment of non-citizens staying in the country, and discrimination amongst foreigners based on ethnicity, race or national origin is prohibited. Article 14 ECHR further includes an open category of “any other status”, which the ECtHR has recognized to include immigration status (here and here). These cases concerned the discrimination of lawfully staying persons in conjunction with their rights under Article 8 ECHR.
The EU Council Decision introducing temporary protection for Ukrainians illustrates this tension between apparently opposing legal principles. It provides for clearly preferential treatment for Ukrainian citizens and their family members vis-a-vis protection seekers from previous conflicts, such as Syrians in 2015 or Afghans in 2021. Hence, this raises questions of preferential treatment of Ukrainians and discrimination against other categories of forced migrants who could as well have been offered protection on a group basis. In addition, non-Ukrainian third-country nationals and stateless persons, who were legally residing in Ukraine until the invasion, are not equally covered by the Council Decision. Russian deserters, draft evaders, dissidents and others fleeing the oppressive Russian regime, who may also be considered victims of the current armed conflict, are likely to face severe obstacles in accessing protection in the EU. What is more, this apparently discriminatory approach is amplified through some politicians emphasising that Ukrainians must be helped because they are European Christians.
Access to EU territory
With regards to access to the EU territory, Ukrainians had an easier starting point than forced migrants from other countries before the activation of the TPD. Since 2017, Ukrainian nationals have been exempt from visa requirements when crossing the external borders of the EU, provided they hold a biometric passport. This visa-free regime not only permits Ukrainians to enter the EU, but also enables them to stay and travel in the Schengen area for up to 90 days in any 180-day period. Such a visa exemption is a recognised instrument of selective immigration control and cannot in and of itself be considered incompatible with the principle of non-discrimination. This kind of selectivity may generally constitute lack of comparability with nationals of other states, hence meaning that the prohibition of discrimination is not applicable.
This seems to be supported by the fact that the visa exemption for Ukrainians resulted from the visa liberalisation dialogue that had been conducted between the EU and the ‘Eastern Partnership’ countries Moldova, Georgia and Ukraine within the framework of European Neighbourhood Policy. Based on certain benchmarks related to document security, border management, migration and asylum, public order and security and fundamental rights, this policy process lead to the visa exemption for nationals of the three countries in 2014 and 2017, respectively. As regards Ukraine specifically, this was preceded by agreements concluded with the EU in 2007 and 2012 on the facilitation of the issuance of visas. Thus, while constituting selective immigration policy, the visa-free regime was introduced by the EU as an element of a policy process towards neighbouring states, based on wider considerations of international relations. As such, preferential treatment of Ukrainian nationals in terms of visa-free access to and travel within Member States can be considered legitimate.
Nonetheless, visa-free and visa-required third-country nationals can be considered being in ‘relevantly similar situations’ in specific contexts and thus protected by the prohibition of discrimination. In principle, Article 14 ECHR applies insofar as there are accessorial ECHR rights at stake. That was undoubtedly the case for people seeking admission to EU territory in order to escape the dangers flowing from Russian military attacks, as the circumstances would be likely to fall within the scope of Articles 3 and 8 ECHR and could further raise questions under Article 4 ECHR Protocol 4. It therefore does not automatically follow from the above that the various forms of differential treatment that occurred at the external EU borders after the Russian invasion of Ukraine were falling outside the scope of Article 14 ECHR (and other non-discrimination norms) altogether, simply due to lack of comparability as a result of the visa exemption.
By way of example, reported instances of blatant discrimination in the de facto exercise of control at Ukraine’s border with Poland and possibly other external EU borders (as described here and here) appear to have been undoubtedly in violation of prohibitions of discrimination in both international law and EU law. Furthermore, As regards Russians deserting the army or escaping oppression, there would arguably be an obligation on EU Member States to grant visas in order to compensate the negative distinction caused by the visa requirement imposed on them in contrast to Ukrainian victims of the conflict. In addition, obstacles for Ukrainians without biometric passports to crossing external (or internal) EU borders seem to have been unjustified differences in treatment amounting to discrimination in certain cases. For instance, elderly people, children, or disabled persons unable to meet the formal requirement to benefit from visa-free travel and that requirement was not sufficiently modified in practice by implementing the Commission’s border management guidelines. Arguments for a potential violation of Article 3 in conjunction with Article 14 ECHR might also dismantle the argument of incomparability between Ukrainians and others displaced by generalised violence in a mass exodus for whom the TPD was not activated.
As a consequence of the visa exemption examined above, Ukrainian nationals can also move freely across internal borders in the Schengen area, as opposed to ordinary protection seekers who would be legally prevented from ‘secondary movement’ by the interaction between the Schengen Borders Code and the Dublin Regulation. While the Dublin Regulation will, according to Article 18 TPD, apply to beneficiaries of temporary protection who avail themselves of the right to lodge an application for asylum down the track (cf. Articles 17 and 19 TPD, see below), those who remain exclusively within the TPD scheme will be free to choose the Member State in which they enjoy such protection. This is the intended result of Member States’ undertaking not to apply Article 11 TPD, normally providing for the obligation to take back persons with temporary protection in case of their unauthorised movement to another Member State, as reflected in the statement referred to in recital 15 of the Council Decision.
The permissibility of this preferential, and indeed exceptional, treatment of displaced Ukrainians falling within the TPD may largely depend on the rationale behind the commitment to what has been described as a free choice of the country of destination. Whether or not this right to choose the country of protection will remain acceptable to Member States in general, there is little doubt that it was introduced with a view to sharing responsibilities for protection of the displaced with the frontline Member States bordering Ukraine in a situation of mass influx. Thus, somewhat ironically, this measure of ‘dual solidarity’ was adopted not only as a sign of solidarity and respect for the displaced persons’ agency and personal integrity, but also in order to alleviate the protection burdens of frontline Member States, among which some have previously adamantly resisted regulatory attempts towards intra-EU solidarity.
This rationale would seem to provide sufficient justification for the preferential treatment compared to asylum seekers inasmuch as it is based on considerations with clear relevance to protection, and the distinction can hardly be considered disproportionate to the weight of the aim pursued. In addition, the Commission has indicated that once a residence permit has been issued by one Member State under the TPD, it must expire and be withdrawn in accordance with ‘the spirit of’ Articles 15(6) and 26(4) TPD if the beneficiary subsequently moves to another Member State and receives another temporary protection residence permit there. Thus, the right of ‘free choice’ is not unlimited.
In assessing the proportionality of this differential treatment, it should also be kept in mind that the agency of people exercising ‘free choice’ may in practice enable them to move away from Member States with insufficient protection standards, whether such standards are at variance with those laid down in the TPD or in violation of fundamental rights, albeit formally in line with the TPD. From a fundamental rights perspective it might seem hard to argue that differential treatment serving this purpose should be considered inappropriate, even if it reflects a distinction between various categories of protection beneficiaries.
Scope of beneficiaries
Pursuant to Article 2(1) of the Council Decision activating the TPD, protection is offered to three groups of persons fleeing Ukraine: Ukrainian nationals residing in the country before the date of the Russian invasion; stateless persons, and nationals of third countries who benefited from international protection or equivalent national protection in Ukraine before the same date; and family members of these two groups. Before the war, 82,550 stateless persons resided in Ukraine though it is not clear how many of them are eligible for protection under the TPD. We note that Denmark’s special law, which in large part mirrors the TPD, does not extend protection to stateless persons whatsoever.
The Council Decision leaves it open to individual EU member states whether to apply the TPD or ‘adequate protection under their national law’ for a further group of persons, namely stateless persons without refugee status and other third country nationals with permanent residence in Ukraine who are unable to return in safe and durable conditions to their country of origin. A Commission Communication of 21 March 2022 providing operational guidelines for the implementation of the TPD provides that such national protection ‘does not have to entail benefits identical to those attached to temporary protection’ but must extend to certain minimum rights to ensure a dignified standard of living, notably residency rights, access to means of subsistence and accommodation, emergency care and adequate care for minors.
Finally, Article 2(3) of the Council Decision gives Member States the option of applying the TPD to stateless persons and third country nationals with temporary residence in Ukraine who cannot safely return to their country of origin. The extent to which this discretion will be exercised in favour of a broader scope of beneficiaries remains to be seen, though as noted above, there are already reports of ethnic and racial discrimination at the point of access to EU territory, targeted against both persons of non-European background and of Roma background.
Interaction between the TPD and national asylum systems
A further key question (if not now, then almost certainly in future) is the interaction between the operation of the TPD and national asylum systems. Article 17 TPD provides that ‘persons enjoying temporary protection must be able to lodge an application for asylum at any time’. Article 19 TPD leaves it to Member State discretion as to whether rights under the TPD are to be enjoyed concurrently while an application for international protection is pending and the Communication of 21 March 2022 notes that Member States can decide that ‘temporary protection may not be enjoyed concurrently with the status of applicant for international protection while their applications are under consideration’.
Time will tell how state practice will evolve in this regard. Given the current political support for generous standards of treatment afforded those fleeing the Ukraine conflict, we anticipate that many Member States will allow for persons under the TPD to maintain their rights during an asylum procedure unless the opposite would be considered necessary to prevent the ordinary asylum procedure from getting overburdened.
Finally, there is the question of whether a person can concurrently hold a residence permit under the TPD and a national asylum system. While the TPD is silent on this question, it does not rule it out and, indeed, the Danish special law expressly provides for the possibility of holding both residence permits concurrently.
However the operation of the TPD plays out, we note that persons under the TPD would seem to be in a protection ‘middle-ground’, receiving higher standards of treatment than asylum seekers and lower standards of treatment than beneficiaries of international protection. This makes future access to national asylum systems potentially crucial to ensure the full realisation of rights under the Qualification Directive, as discussed below.
Standards of treatment
The TPD contains a set of rights for beneficiaries under its scope, such as a residence permit, information on temporary protection, access to the asylum procedure, (limited) access to employment, suitable accommodation or housing, social welfare, medical care, education for persons under 18 years, family reunification in certain circumstances, banking services, free choice of settling in an EU Member State before the issuance of a residence permit and free movement for 90 days after a residence permit in the host EU country is issued.
These rights are generous compared to the standard of treatment for asylum seekers under EU law. Under the Reception Conditions Directive, asylum seekers also have a right to information, documentation, access to housing, food, clothing, health care, education for minors and (after maximum nine months) access to employment. As discussed above, however, they cannot choose their country of protection and they may not move freely within the EU.
Persons with formally recognised refugee or subsidiary protection status enjoy the right to non-refoulement, information, family unity, a renewable residence permit, travel documents, access to employment and to education for minors en par with nationals, education for adults en par with legal residents, recognition of qualifications, (core benefits of) social welfare and healthcare according to the Qualification Directive.
Hence, the level or quality of the rights provided under the TPD regime seem to lie between those for asylum seekers and those for recognised beneficiaries of international protection granted refugee or subsidiary protection status. However, the TPD is less prescriptive in this regard, and we lack prior instances of application that would help to make the substance of rights more concrete. It remains to be seen how Member States interpret and apply these TPD obligations in practice, and whether differences in the standards of treatment across Member States may ultimately create push-factors leading to secondary movements beyond what is considered reasonable from an EU perspective and acceptable for receiving Member States.
The rationale of the various differences in treatment described above may be found, on the one hand, in the fact that Member States already recognised a need for protection for Ukrainians by adopting the Council Decision bringing them within the scope of the TPD, while for asylum seekers this is yet to be determined in an individual examination procedure. On the other hand, the protection need under the TPD is granted in explicitly temporary terms and on a large-scale group basis. Hence, an overarching idea of TPD protection is that EU protection resources must be distributed more broadly and, simultaneously, Member States are given options to support the short-term integration of the beneficiaries of temporary protection in terms of limited access to employment and education.
Similarly, the ‘free choice’ approach under Council Decision activating the TPD sensibly avoids lengthy procedures on the transfer of applicants to other Member States or individualised determination of protection status in face of large-scale arrivals of persons with a perceived temporary need for protection. One could argue that persons granted protection under the TPD receive preferential treatment in comparison with asylum seekers due to their collectively recognised need for such protection, while the disadvantages of their standards of treatment as compared to persons with refugee or subsidiary protection status might be mitigated by receiving immediate protection.
Importantly and unsurprisingly, time is a key factor when considering and assessing temporary protection. There are indeed limits to the extent and duration of the legitimate differences of treatment of persons granted protection under the TPD, regardless whether such differences are positive or negative, depending on the comparable category of persons.
We emphasise that the TPD does not create any separate legal ‘status’ for the beneficiaries of temporary protection, in line with refugee status or subsidiary protection status for persons granted protection under the Qualification Directive. To the contrary, it is clear from both recital 10 and Articles 2(a), 3 and 17 TPD that those granted temporary protection may qualify for refugee or subsidiary protection status, only their status has yet to be determined. Therefore, any differences between the TPD standards and those laid down in Chapter VII of the Qualification Directive should be limited in time and scope in order to reflect the presumptive, but temporarily undetermined, status of those granted protection under the TPD and thereby respect the legal obligations flowing from the Qualification Directive and the UN Refugee Convention.
The question of discrimination in the context of the special protection arrangements for persons displaced by the armed conflict in Ukraine is central and crucial, with no simple or unequivocal answers. These answers seem to differ significantly depending on whether the differential treatment concerns access to the EU territory and to protection under the TPD, or they arise as a result of the different standards of treatment under the TPD in comparison with the Reception Conditions Directive or the Qualification Directive. In the latter cases, the time factor may ultimately become decisive. In any case, the EU and Members States must be prepared to justify the distinctions being introduced if they want to uphold special treatment of certain categories of persons in need of international protection.