Refugees from Ukraine: towards more humane asylum policies in the EU and the UK?
By Sylvie Da Lomba - Posted on 8 March 2022
Since the start of Russia’s war in Ukraine, over 2 million people have fled the country (as reported by the UNHCR). In response to the plight of refugees from Ukraine, the EU and the UK have adopted a package of measures. In this blog, I offer some thoughts on whether these developments signify a humanising of the UK and the EU’s asylum policies.
On 4 March 2022, the Council of the EU adopted a decision establishing a temporary protection scheme for persons from Ukraine (Council Implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine). The framework for this protection scheme was established in 2001 (Council Directive 2001/55/EC) but had never been used. Under this scheme, refugees from Ukraine can be granted temporary protection in the EU for up to three years.
This EU’s response to Ukraine’s refugees’ protection needs takes place against the backdrop of European inhospitable laws, policies and practices that see asylum seekers and refugees as a problem - a problem that is not the EU’s. For example, the EU and its Member States have ‘embraced’ pushbacks. These are measures which may lead to violations of the principle of non-refoulement – a cornerstone of international refugee and human rights law (as explained in a Report for the United Nations Office of the High Commissioner for Human Rights). In March 2021, the European Parliament lamented that ‘instead of providing for effective solidarity with frontline Member States and for fair responsibility-sharing, in recent years EU countries have continued to secure their external borders and focused on cooperating with third countries (in particular Libya and Turkey) to curb migration flows’ (as detailed in a European Parliament Briefing).
In response to forced displacement from Ukraine, the UK Government has agreed to relax its immigration rules. The main measure is a new Ukraine Family Scheme visa which allows family members of British nationals, UK settled persons and certain others to come to or stay in the UK. This ‘relaxation’ of the rules was very incremental. In the face of criticism (for example, from the Refugee Council) that its response was inadequate and fared poorly when compared to the EU’s, the UK Government broadened eligibility under the scheme and increased the duration of leave to remain in the UK from one to three years. As is the case with the EU’s temporary protection scheme, the Ukraine Family Scheme visa was adopted in an otherwise hostile environment for asylum seekers, refugees and other migrants – an environment that is being buttressed as the Nationality and Borders Bill continues to go through the UK Parliament. Among other things, the Bill proposes the creation of a two-tier asylum system whereby only those who come to the UK through legal routes can enjoy the full benefits of refugee status as established by the 1951 Refugee Convention. This change to the current system has attracted very strong criticism, as detailed in a House of Lords Briefing.
The EU and the UK’s responses to the protection needs of people fleeing Ukraine beg the question whether they signify a humanising shift in their asylum policies. Are the UK and the EU finally becoming hospitable towards the ‘Other’ (something Saskia Vermeylen and I consider in a forthcoming paper)?
I am afraid I have serious doubts that we are witnessing a paradigm shift.
While they constitute positive developments, the measures adopted by the EU and the UK so far do not fully meet the protection needs of those fleeing Ukraine. Protection in the UK for those with no family ties there remains uncertain. The UK Government has announced the creation of a Local Sponsorship Scheme for Ukraine for Ukrainian nationals who are not eligible for the Ukraine Family Scheme visa, but this route to safety is still in the planning stages. Both the UK and EU’s responses raise serious concerns in respect of people fleeing Ukraine who are not Ukrainian nationals. For example, Council Decision 2022/382 does not expressly cover this group of refugees.
Furthermore, there is no indication that the UK and the EU intend to forsake their hostile environments. The UK Government’s support for its Nationality and Borders Bill and ensuing dismantling of asylum and refugee protection has not waned. Tellingly, the UK has elected to use the visa route in response to the situation in Ukraine, the border and immigration control tool par excellence. By contrast, the EU has waived all visa requirements for those falling within the scope of its temporary protection scheme (short-term visa requirements for Ukrainian nationals were waived in 2017).
However, this is not to say that the EU has (re-)located protection at the core of its asylum policy. The EU has not renounced its policy of deterrence and externalisation in respect of non-European refugees - for example, the agreements with Libya and Turkey remain in force. The swift adoption of Decision 2022/382 is in stark contrast with the European Commission’s decision against deploying the temporary protection scheme for Syrians and people from other countries who fled war and violence in the Middle East in 2015-16 (as reported in the Guardian). At the time, the Commission explained that this scheme applied to very different situations, though a lack of support within the Council of the European Union is likely to be behind the Commission’s decision.
In my view, the EU and the UK’s responses to forced displacement from Ukraine do not mark a humanising turn in their asylum policies. Rather they might develop as an exception to the rule, namely deterrence and externalisation. Importantly, though positive and critically needed, these measures remain insufficient, especially the UK’s. According to a BBC News report on 7 March, the UK had only granted 50 visas through its Ukraine Family Scheme visa by that date.
It is imperative that Europe offers hospitality to those fleeing Ukraine, and it is critical that the welcome does not fail as numbers increase and protection needs endure (as may well be the case). However, it is also crucial to interrogate the EU and the UK’s ‘double-standards’. Why are they opening the door to those fleeing Ukraine but remain determined to bolt the door to ‘(more distant) others’? Is Europeanness becoming a requirement for access to safety and protection in Europe? Worryingly, will hospitality towards refugees from Ukraine mean greater hostility towards non-Europeans in what could develop into a deeply inhumane zero-sum game?
The article ‘Ethical vulnerability analysis and unconditional hospitality in times of COVID-19: rethinking social welfare provision for asylum seekers in Scotland’, by Sylvie Da Lomba and Saskia Vermeylen will be published in a future edition of the International Journal of Law in Context