Credits : Jim Black / Pixabay
By Pietro Milani
It’s been a year since the Russian army started a large-scale invasion of Ukraine. During this year we have seen the common European answer to the Russian belligerent behaviour that is causing heavy humanitarian issues, first of them the huge amount of people fleeing from Ukraine. The European response to this migratory crisis is clear and shared: the implementation for the first time in European history of the Temporary Protection Directive.
The main topic of this blog is to underline the reasons that have convinced the European leaders to go on with the non-implementation of the directive during other relevant crises related to the diaspora of thousands of people.
Inside the Directive
The Temporary Protection Directive (TPD) was introduced by the European Union in 2001 on the occasion of the conflict in former Yugoslavia, when a massive number of people fled crossing the borders of neighbouring countries, trying to escape from violence. The directive was designed to provide temporary protection to those who are not recognized as refugees by the Geneva Convention, but who still require protection. The idea was to provide a unified framework for those who are fleeing from crises, such as armed conflicts or natural disasters, and cannot return to their home countries. For Member States, it was crucial to create an instrument that, on the one hand, would respond to the need to protect people. On the other hand, it could represent a strategy for them to not be overwhelmed by massive cases that require an individual assessment.
According to the Council Directive 2001/55/EC there is a list of minimum standards for giving temporary protection. The framework introduced by this directive is extremely efficient in the management of mass influx situations. Refugees, and more in general all people in need escaping armed conflict, violation of human dignity, or persecution can obtain protection for a maximum of three years. The Directive foresees harmonised rights attached to a legal status that confers temporary residence permit, information, education, accommodation, medical treatment, limited access to the labour market and the right to move freely in EU countries for 90 days.
For these reasons, I sincerely believe that thanks to its flexibility, its broad personal scope in addition to its formalisation of protection standards, the TPD is for sure the most efficient framework to respond to the mass displacements of people due to the Russian invasion of Ukraine.
Rather than questioning the activation of the Temporary Protection Directive during the conflict in Ukraine, it may be better to inquire as to why the European Institutions did not activate it earlier. Despite the existence of the TPD, there have been instances where it has not been implemented. This has left many individuals in a state of limbo, as they do not qualify for international protection status, but also cannot come back to their origin countries due to the ongoing conflict. Furthermore, during the refugee crisis that peaked in 2015, there was a lack of implementation of the TPD. Even though the directive could have been used to provide temporary protection to those fleeing from conflict in Syria, Iraq, and other countries, the EU failed to use it effectively.
Not everyone is allowed to knock on European doors
In 2011, the clash related to the so-called Arab Spring compelled a huge number of people that fled from North Africa in the direction of Europe in particular Italy and Malta, putting the national reception and asylum system under particular pressure. Scared by a large number of displaced persons, Members of the European Parliament (MEPs) proposed the activation of the TPD in 2011, but the requests were repulsed in the Justice and Home Affairs Council meeting because in the deliberation emerged that there weren’t the required conditions for activation. In 2015, according to UNHCR (United Nations High Commissioner for Refugees), more than 4,000 people were reported missing or dead in an attempt to reach European borders.
The conditions for the activation of the Directive seemed to be met so a new proposal to the Council was introduced. But, once again, the Directive was not implemented. Those are only two explicit examples of the non-compliance and carelessness of the European Union. The EU could be able to implement an extremely efficient instrument but instead decided to look the other way.
We can list several reasons why the directive has not been used effectively. Firstly, it is up to each member state to implement the TPD within their national legislation, and there has been a lack of uniformity in how this has been done. Additionally, there is a lack of funding and resources available to provide effective temporary protection to those who require it. In addition, there weren’t enough objective elements that could provide the existence of a mass influx situation in both circumstances. But probably the most accepted and shared reason was the fear of several member states, that the activation of the TPD could represent a pull factor for migrants seeking entry into the EU.
We have to keep in mind that the EU and national institutions are driven by policymakers who act following a very simple but efficient scheme: the maximisation of their utility curve. The same behaviour of every economic actor. So our European policymakers have to respect what society expects to maintain the position they occupy thanks to the democratic election. Roughly speaking the non-implementation of the TPD reflects the common society attitude about what we perceive as different.
The European dual mode of treatment of asylum seekers strictly related to where they come from is inhuman and unjustifiable. But what I find sincerely unbelievable is the transparency used by the European institutions in perpetuating these inequalities. This is disconcertingly reflected, to a certain extent, also in the Council Implementing Decision 2022/382:
- “[…] nationals of Ukraine are exempt from the requirement to be in possession of a visa when crossing the external borders of Member States for stays of no more than 90 days in any 180-day period.”
- “The object of this Decision is to introduce temporary protection for Ukrainian nationals residing in Ukraine who have been displaced on or after 24 February 2022 as a result of the military invasion by Russian armed forces that began on that date. Temporary protection should also be introduced for nationals of third countries other than Ukraine, who have been displaced from Ukraine on or after 24 February 2022, and who were benefiting in Ukraine from refugee status or equivalent protection before 24 February 2022.”
- “It is also appropriate to provide for the protection of stateless persons, and nationals of third countries other than Ukraine, 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.”
The intention is to create a preferential entry channel exclusively for the Ukrainian population, avoiding the possibility of the creation of a pulling factor for other migrants in need and at the same time comply with the European and national societies’ requests. My suggestion here is that the TPD is activated mostly because the common perception is that the Ukrainian population is composed of white Christian Europeans and not Islamic terrorists.
The process of securitisation is creating a dangerous and toxic link between migration and terrorism. A very clear political issue is going to become a security issue related to the life of people. It seems that the EU had a single instrument, a big hammer used to manage every situation. For the American psychologist Abraham Maslow, the tendency is to treat everything like a nail to crush. Today this is known as the hammer’s law: European leaders are affected by a cognitive bias which can lead to over-reliance on a single instrument that could bring an outcome different to the one hoped. Enforcing borders, securitisation and refoulement of irregular migrants are the main hammers used today.
In conclusion, the lack of deployment of the Temporary Protection Directive is a relevant issue that needs to be addressed by the European Union. The causes of this non-implementation reflect the racism toward Third Country Nationals, an inner characteristic deep-rooted in European societies. But this can’t be the only explanation. I attribute a huge responsibility to the European leaders and institutions that have the task and duty to eradicate clichés and discrimination, but instead, in the name of a blind attachment to the electorate, they are still promoting policies that are openly unequal.