Historical. This adjective has resounded in many parts, since EU Commissioner Ylva Johansson and the French Minister of the Interior Gerald Darmanin announced the agreement on the directive for temporary protection in relation to the war in Ukraine. In fact, it is the first time that EU member states have agreed to use this legislative instrument introduced in 2001, after the conflicts in the Balkans, to regulate the massive influx of displaced people and provide them with protection.
— Ylva Johansson (@YlvaJohansson) March 3, 2022
Following the Russian invasion of Ukraine, European leaders have made more than one unprecedented decision. Now, they have also done so in the matter of migration, after civil society had invoked Directive 55/2001 without success for years on the occasion of the crises linked to Tunisia, Syria and Afghanistan. Within a week, however, the twenty-seven states have agreed and, today, the text of the official decision will be made public, accepting the appeals made by many organisations.
“The European Union has done what it had to do. This directive is not perfect, but it guarantees immediate protection and has several positive points, such as work and education”, Salvatore Petronella, an expert in migration policies and author of a study on 55/2001, explains.
What the directive provides for
The directive guarantees displaced persons temporary protection of one year, renewable for up to three, which should allow them “to enjoy harmonised rights throughout the Union”, to obtain “a residence permit, the possibility of obtaining employment or being self-employed, access to adequate housing, necessary social assistance, medical or other assistance, and means of subsistence”, as stated in the Commission’s proposal.
“Without this instrument of immediate protection, hundreds of thousands of people would have had no choice but to apply for asylum in the country of their first arrival. This would have led to further overloading of national reception systems, which is something that no European country can afford at the moment” explains Alberto-Horst Neidhardt, an analyst at the European Policy Centre.
The directive will cover Ukrainian citizens, third-country nationals with a long-term permit and holders of international protection residing in Ukraine. Temporary protection, on the other hand, will not be guaranteed to third-country nationals with short residence permits, like the many non-European students who have reported episodes of racism in the last few hours: for them, the Commission says that the borders remain open and that they will be supported in their return in their countries of origin.
From left to right: Ylva Johansson (European Commissioner for Home Affairs), Gérald Darmanin (Minister for the Interior, France)
What the directive does not provide for
Directive 55/2001 does not cover border procedures, for which the Commission has only published guidelines. Nor does it provide for solidarity mechanisms: no quotas and no compulsory relocation, as in the past. The approach will be “fluid”, an official of the EU Commission explained: each state will evaluate its reception capacity and assessments will be made once people fleeing Ukraine settle into different countries.
In fact, since 2017, Ukrainian citizens have been able to enter the EU and stay for 90 days without the need for a visa (only a biometric passport). This has allowed refugees to move within the EU, stopping where they see fit, perhaps with friends or relatives, where the diaspora is more numerous, as in Italy. It is a huge difference from past and current policies which, under the Dublin regulation, oblige asylum seekers to apply for international protection in the country of entry.
The change, in terms of content, albeit limited to the Ukrainian crisis, is evident. “The unanimous adoption of the directive is a historic decision and is in stark contrast to the divisions between member states that have undermined consensus in recent years,” adds Lucas Rasche, an analyst at the Jacques Delors Centre in Berlin. “We have gone from a very repressive scheme to one in which people are free to move and make choices”, sums up Lina Vosyliūtė, a researcher at the CEPS think tank.
According to Petronella, the reasons are different. One may be geographical: “Ukraine is on our doorstep, with a long land border and no sea border. The Syrian crisis was buffered thanks to Turkey, which was in the middle. There is nothing between us and the current crisis and therefore it must be faced”. According to Vosyliūtė, “for the EU, welcoming Ukrainians is the second-best option, after it has decided not to intervene militarily to defend the country”. Not only this but “they are refugees fleeing a Russian invasion: towards them, there is a lot of understanding and solidarity in the former Soviet countries that are now part of the Union,” continues the researcher, who is Lithuanian.
“Looking at past decisions and recent statements by some political leaders, one may think that some member states are not as willing to show solidarity with those fleeing countries with distinct cultures, ethnicities and religions,” Neidhardt reasons. Of course, he continues, “the suffering a few kilometres away from the European borders has contributed to a different perception of the responsibility to which the EU has been called”.
The UNHCR estimates that the number of people who could leave Ukraine could rise to four million, but these are difficult predictions to make and much will depend on the progress of military operations. What is certain, Rasche continues, is that “a million Ukrainian refugees arrived in the EU in just one week, while it took a year to bring so many refugees from Syria to Europe”.
It is therefore essential that the recently approved Directive 55/2001 is transposed in the best possible way. “Each state will decide how to implement it, but we are in an unknown scenario here. As the directive has never been used before, everything is new. And it will have to be monitored with great attention”, concludes Petronella. Vosyliūtė agrees and speaks of “practical challenges, such as home, work, school, integration”. “Europe could look to Latin America: in countries like Brazil or Colombia there are good practices, adopted especially for Venezuelan refugees”, she proposes.
Finally, there is another level on which the decision of the EU Council could have an impact, that of the reform of the EU rules on immigration, which has been at a standstill for too long. According to some observers, the Ukrainian precedent could become a positive one, to break the deadlock that has loomed for months on the Pact for Asylum and Migration, presented by the Commission in September 2020.
“Many have already said and written about the war in Ukraine as a tipping point for European architecture in matters of security and foreign policy. The same could also be said for migration and asylum, “explains EPC’s Neidhardt. Rasche of the Jacques Delors Center, on the other hand, is more cautious: “some last-minute reservations from Hungary about a possible transfer of beneficiaries indicate that positions have not fundamentally changed in Eastern European countries. There are good reasons to be cautious in thinking that the adoption of the directive on temporary protection will lead to a paradigm shift”.
Cover photo:Ylva Johansson (European Commissioner for Home Affairs, European Commission). Via European Union.