On 24 February 2022, Vladimir Putin invaded Ukraine. In the last few days, the Russian armed forces offensive  has increased in intensity, and several attacks targeting civilians (which constitute war crimes) have been reported.[1] On 13 March, the UNHCR recorded at least 1,663 casualties (569 persons killed and 1,094 injured)[2], and that more than 2,7 million people fled from Ukraine looking for protection.[3] The European Commission estimates that 2.5 to 6.5 million persons will be internally displaced and 1.2 to 3.2 million will flee the country due to the war.[4] According to the UNHCR, this is the ‘fastest growing refugee crisis since World War II’ in Europe.[5]

To respond to the growing number of people leaving Ukraine, the European Commission proposed activating the mechanism provided by Council’s Directive 2001/55/EC[6] of 20 July 2001 for the provision of Temporary Protection in case of mass influx of displaced persons on 2 March 2022.[7] On 4 March 2022, the Council adopted a unanimous decision establishing the existence of a mass influx of displaced persons from Ukraine and activated the Temporary Protection Directive (TPD).[8] This is the first time that this Directive has been activated, after being adopted due to the increase of displaced persons fleeing from conflict in the former Yugoslavia, and out of the necessity to share the responsibility of admission and residence of people who fled searching for protection between Member States of the European Union.

Fenix – Humanitarian Legal Aid, alongside many other international and non-governmental organisations,[9] welcomes the swift and effective response to the humanitarian crisis and human suffering in the aftermath of the Russian invasion on 24 February 2022, from both a practical and legal perspective. The activation of the TPD mechanism and its unanimous adoption by the Council shows that an effective response by the EU institutions and Member States with respect to EU and international asylum legislation in the case of a sudden mass influx is possible, even in a very short period of time. Nevertheless, what is notable is that this prompt and legal response was not seen in other recent periods of mass influx or conflicts. ‍

Both in 2011[10] and  2015[11] requests to activate the TPD were repeatedly rejected, despite the stark increase of persons arriving at the external EU borders at those times, and despite the TPD having been created specifically to deal with mass influx situations.[12] In fact, in September 2020, when the European Commission presented the New Pact on Asylum and Migration,[13] it was concluded that the Council’s Directive 2001/55/EC did not address the problems raised by Member States in case of mass influx and should therefore be repealed.[14]

The European Commission 2020 proposals and subsequent additions copy the restrictive policies implemented in Greek territory (e.g. externalisation of the asylum procedure, protection of the external borders, the hotspot or containment approach and border procedures), instead of embodying the idea of a quick and welcoming response to those in need by creating a human rights-based common European Asylum System. One of the most paradigmatic examples is the proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum.[15] The proposed solution for such events is not the protection of those in need of international protection, but instead the derogation of their rights, namely through delayed registration of their asylum application, increased use of detention, and the extension of the asylum and return border procedures.[16] Another clear example of restrictive measures is the Commission’s proposal for the Regulation amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders.[17] This proposal, and others, aim to increase the surveillance in order to reduce border crossings by non-European nationals, especially in cases of the so-called ‘instrumentalisation’ of migration of third countries, reinforcing the “legal” and “illegal” movement mantras.[18]

The recurrent justification for such policies and measures is that the European Union and its Member States do not have the capacity to welcome and integrate people fleeing from wars and severe violations of human rights.[19] However, European countries have now accepted over two million Ukrainian refugees in less than two weeks. It also cannot escape observation that the first time the TPD was implemented was for a predominantly white, Christian population, despite conflicts and mass displacement events occurring in other parts of the world since the TPD was introduced. Even with respect to the current crises, there are reports of differential treatment between white and non-white people fleeing Ukraine.[20] Moreover, the difference of treatment occurs in parallel to an increasing number of openly racist and xenophobic declarations and actions.[21] The current influx of people fleeing from Ukraine clearly demonstrates what many have been arguing: the problem is not the lack of capacity of the EU and its Member States, but the lack of political will to receive people from other continents or that are not white or have a different religion, and as a consequence, the dual standard applied towards different asylum seekers.‍

Some will argue that EU institutions and its Member States may now ‘learn their lesson’ and that in the future others will be welcomed, and swiftly and effectively be registered and given access to adequate and humane reception conditions. However, contemporaneous examples and practices demonstrate precisely the opposite. While Ukrainians fleeing for protection and welcomed, non-white and non-Christian asylum seekers continue to be stopped at the entrance of EU territory and treated inhumanely by national and European authorities.[22] Others will argue that the selective solidarity of the EU and its Member States is not based on racism, or xenophobia, but is instead due to the geographical proximity of Ukraine. However, it is crucial to emphasise that solidarity with those in search of safety should never be based on any sort of proximity, may it be geographical, racial or religious. Further, the legal entitlement to access to asylum enshrined in human rights law is not based on geographic proximity.‍

Europe must stop investing in xenophobic, racist and nationalist policies. Europe should stop selecting who can have access to asylum and integration, and which conflicts deserve quicker and more welcoming responses. Instead, Europe must learn from the current experience and stop dismantling the European asylum system. Lessons can be learned from the current crisis, in that we can see that there is a better and more effective way than the restrictive policies of containment, fast-track border procedures and return mechanisms currently in place, both from a humanitarian and legal perspective. It is very simple: create safe and legal pathways and an effective and human rights-based Common European Asylum System for all!‍