Temporary Protection and EU Solidarity: Reflecting on European Racism
Forum on the EU Temporary Protection Responses to the Ukraine War
Contribution by Prof. Dora Kostakopoulou, KU Leuven
13 June 2022
President Vladimir Putin’s unprovoked aggression towards Ukraine on 24 February 2022 did not give the world a chance to contemplate an ‘after’ to the Covid-19 pandemic. The leap from Covid-19’s inescapable vulnerabilities, the significant global death toll, the financial strain and the damage to people’s lives and livelihoods to Mr Putin’s invasion, destruction, indiscriminate bombings, the targeting and killing of civilians was shift and unpredictable, at least if one considers the scale, and the level of the displayed brutality, of the attack.
The Russian airstrikes and bombs did not distinguish among the targeted civilians in Mariupol, Kharkiv and elsewhere on the basis of race, colour, ethnicity, religion or nationality. All residents in the targeted areas were equally affected – most of them experienced severe trauma and millions sought refuge in the neighbouring countries and in the West.
Within a short space of time Putin’ war made millions of people ‘exiles’: it uprooted them, displaced them and scattered them without distinction. As Ukrainian men were not permitted to leave the country, women and children started arriving in Poland, Hungary, Moldova and Romania exhausted and scared because their lives and freedoms were threatened. They crossed the Ukrainian borders because there was nowhere else to go. The European Union and Moldova were the only hopelands for the traumatised sanctuary seekers.
The fact that non-white residents were facing obstacles in the rush to leave Ukraine and at its borders, and were experiencing differential treatment is both shameful and unacceptable in a European Union which has explicitly declared that its values (Article 2 TEU) and principles matter and are legally binding and, thus, enforceable. Non-white asylum seekers and refugees should not have been exposed to dehumanising racism on top of the Hobbesian nightmare created by Mr Putin’s war. ‘Europe has no soul’, they must have thought the moment they encountered either a cold bureaucratic indifference or contempt to their distress and suffering.
This experience was dis-orienting at a time when the West was seeking to re-orient the world’s attention to the importance of the world-wide strengthening of the rule of law, freedom, democracy and respect for human rights and human dignity. Since Mr Putin had displayed contempt for the Ukrainian people, their rights and international law, the only appropriate political response by his critics was a heightened respect for the above triad. And, since Mr Putin had acted believing that he was entitled to be a law to himself in dealing with neighbouring nations, then European leaders needed to emphasise the importance of state sovereignty under law and of living under a liberal democratic rule of law which affirms the principles of equality and non-discrimination.
To an extent this happened, but only to an extent. Hence, the critique outlined in the thoughtful kick off contribution by Carrera, Ineli Ciger, Vosyliute and Brumat. They documented the discrimination, racism and xenophobia experienced by non-European third country nationals fleeing Ukraine whilst highlighting the EU’s positive steps in activating the Temporary Protection Directive (TPD thereafter). By comparing and contrasting similar experiences of mass displacement in Latin America and the chosen policy responses, they made a well-articulated case for the rethinking, and reframing, of the EU solidarity principle on the grounds of providing real and effective protection to asylum seekers and refugees and non-discrimination on the basis of race, colour, ethnic origin, religion, national minority membership (Carrera et al., pp. 28 et seq.).
But their arguments did not convince Professor Skordas who argued that ‘the accusations of discrimination, racism or ‘institutional racism’ against the system of temporary protection of displaced persons from Ukraine are not grounded on facts and norms’. In this contribution, I wish to take issue with Professor Skordas’ submissions (his first draft and the revised final contribution) from a twofold standpoint, namely a legal one and the perspective of political morality.
Before responding to Professor Skordas, however, I wish to make three brief observations at the outset. First, the activation of the TPD was a very positive as well as significant step. Unlike previous such crises, including the huge displacement of persons by the internal conflict in the former Yugoslavia which prompted the Council of Ministers to agree a Conclusion in 1992 and a subsequent Resolution in 1993 on the admission of persons for temporary protection. These were not published in the Official Journal, and were later followed by a Council Resolution, a Decision (OJ 1995 C 262/1 and OJ 1996 C 63/10) and a Joint Action proposal by the Commission on burden-sharing during temporary protection which following the objections of the United Kingdom was redrafted by the Commission and later on became the Temporary Protection Directive, swift action took place on 4 March 2022 and a welcoming and rights-based approach prevailed. It is also noteworthy that the historic discourse on burden-sharing did not surface in spring 2022 – the new refugees have been seen as assets in European polities and economies facing labour shortages. This is a fundamental change in asylum law and policy narratives – even though it might be short-lived.
Secondly, it is not very profitable to place considerable weight to the question of why the TPD was activated now and not in the past when the plight of Syrian refugees and others was heard loudly in Europe. Undoubtedly, Europe had a duty to protect them and one could not easily abdicate those responsibilities by depicting an exodus of people in the past as an ‘irregular mass migration movement’. Carrera et al discussed where the responsibility lied for the non-activation of the TPD in 2015-2016. Achilles may hold a different opinion, but no one would argue that the TPD serves as a tool for the management of irregular migration by either design or default.
This brings me to the third preliminary observation. The Council’s Decision 2022/382 which determined the personal scope of the TPD is precisely that – the Council’s Decision. It would be unfair to lay blame on the European Commission, or the EU, for the failures and omissions of its Member States. Not only did the Commission’s proposal include as beneficiaries of temporary protection Ukrainian nationals displaced outside Ukraine as of 24 February 2022, third country national refugees or asylum seekers in Ukraine at the time of the vents, stateless persons and third country nationals who are ‘unable to return in safe and durable conditions to their country or region of origin’ and long-term residents in Ukraine, as well as their family members (Art. 1.1.), but its Operational Guidelines also recommended the extension of temporary protection to displaced Ukrainians and third country nationals not long before 24 February 2022, third country nationals and stateless persons permanently residing in Ukraine before 24 February 2022, and resident third country nationals ‘who were studying or working in Ukraine on a short-term basis’ should be admitted on ‘humanitarian grounds’, without Member States requiring travel documents and ensuring ‘safe passage’ to their country or region of origin.
The Commission’s Operational Guidelines are consistent with its previous emphasis on the right to human dignity as the core of EU legislation and policy measures in the field of humanitarian protection. I recall the Emergency Support Regulation of 15 March 2016, the Commission Staff Working document on Humanitarian Protection (SWD (2016) 183 final, 23.4.2016) and the Commission Communication on Forced Displacement and Development of April 2016 which pronounced human dignity and non-discrimination core elements of its approach to forced displacement.
In accordance with the above-mentioned background, it is questionable whether geopolitical considerations play, or should play, an important role in the activation of the regime of temporary protection, as van Selm and Professor Skordas has argued. In answering this question, only EU law can provide authoritative guidance. According to Article 78(1) TFEU, ‘the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection and ensuring compliance with the principle of non-refoulment. This policy must be in accordance with the Geneva Convention of 28th of July 1951 and the Protocol of 31st of January 1967 relating to the status of refugees, and other relevant Treaties’.
In order to meet the above objectives, according to Article 78(2) TFEU, the European Parliament and the Council in accordance with the ordinary legislative procedure shall adopt measures comprising:
(a) a uniform status of asylum for nationals o third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow.
It is important to mention, here, the emergency provision of Article 78(3) TFEU which states that ‘in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State(s) concerned’.
Clearly the textual wording of Article 78 TFEU is premised only on the need of displaced third country nationals to acquire international protection or temporary protection and on compliance with the Geneva Convention, the New York Protocol and other relevant international norms. There is no reference to the Union’s geopolitical interest or foreign policy objectives. In this respect, if one made Article 78 TFEU conditional on requirements pertaining to TEU’s Title V on external action and CFSP, that would be unlawful. Additionally, since temporary protection falls within the common policy on asylum, which is one element of the Area of Freedom, Security and Justice, the requirement of respect for fundamental rights reaffirmed in Article 67 TFEU applies.
The follow up question is therefore whether the Council’s de jure restrictions on the personal scope of the beneficiaries of temporary protection are fundamental rights compliant. The fundamental rights which are protected by primary EU law, and thus the EU Charter of Fundamental rights are, Articles 1 (on human dignity), Article 2 (right to life), Article 3 (right to the integrity of the person (including mental integrity), Article 4 (on the prohibition of torture and inhuman or degrading treatment or punishment), Article 7 (the right to respect for private and family life), Article 18 (right to asylum), Article 19 (protection from refoulement), Article 21 (non-discrimination), Article 23 (equality between men and women) and Article 24 (the rights of the child).
These rights are explicitly mentioned in the Commission’s proposed Regulation addressing situations of crisis and force majeure in the field of asylum and migration. Under section 3.3, the proposed regulation confirms the ‘full respect of fundamental rights as enshrined in the Charter’ as well as ‘obligations stemming from international law’. In addition to Article 21 EUCFR, therefore, Article 14 ECHR which refers to non-discrimination on race, colour, national origin and association with a national minority, and Article 1 ICERD which refers to the prohibited grounds of race, colour, national or ethnic origin which have the purpose of nullifying or impairing the recognition or enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms apply.
In this respect, in the event of a mass exodus of third country nationals fleeing war-based violence, any differentiated treatment of them which includes arbitrariness, discrimination or racism would violate the legal provisions mentioned above. It is not an issue of exclusions or restrictions between citizens and non-citizens, but an issue of singling out a racial, ethnic or national group of third country nationals for privileged treatment when all groups are equally displaced and fleeing the same area of armed conflict.
From the standpoint of equality and justice as even handedness, the new institutional fixity contained in the Council’s Decision was not one of necessity but one of choice and restriction with respect to the potential beneficiaries of international protection. If that choice had been subjected to principled constraints, then all persons who could not return to the country of origin in safe and durable conditions should have had not only rights to spaces of safety (admission rights) but also the same set of rights prescribed by the temporary protection regime. In this respect, the Council’s Decision does not ‘look sound and coherent’ because it is based on ‘only reasonable differentiations based on individuals’ migration status in Ukraine, as Professor Skordas argued in his initial contribution.
So, we are where we are. The Council’s decision had to be taken quickly to address the situation on the ground and took into account the unyielding pressures of domestic politics and narratives of nationalism and white supremacy. In the end, the contradictions are fundamental because solidarity towards those fleeing the invaded Ukraine can only be ethically grounded – not ethnically or racially grounded. After all, vindicating rights and compliance with the law are constitutive of the political culture of a polity. Constitutionalism must begin ‘at home’ before it is preached to autocratic Others. And as the ethical, legal and the political are interlaced in the field of humanitarian protection, it is the equal human vulnerability and the affirmation in praxis of the values of respect for human dignity and non-discrimination as well as respect for the rule of law (international, EU law-based and national constitutional) that underpin decisions of individual and political morality.
 The final text of the Council Decision leaves it to the MS to decide whether they would grant temporary protection or ‘adequate protection under their national law’ in respect of all categories of third country nationals, including long term residents, in particular to those ‘who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.’ It also leaves to the discretion of the MS to apply the TPD to other persons – including third country nationals other than Ukrainians – ‘who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin’.