Maintaining Mobility for Those Fleeing the War in Ukraine

The Activation of the EU Directive: A Historic Decision

As the main response to the exceptionally large movement of refugees from Ukraine, on March 4, 2022, the EU activated for the first time the Temporary Protection Direc­tive, which was adopted two decades ago. According to this decision, all Ukrainians and their family members who entered the EU after the military invasion by Russian forces on February 24, 2022, are eligible for temporary protection and residence per­mits. This status is initially valid for one year, and – in the absence of a decision to the contrary by the Council of the EU – is automatically extended twice for six months. If a safe return is still not possible, a final renewal for another year can be offered.

Activating this group-based procedure was the right decision – despite objections that well-equipped asylum systems may provide for more extensive rights on the basis of individual protection status. The advantages of the EU Temporary Protection Directive are obvious: Its application pro­vides efficiency gains for administrations and prevents the overburdening of asylum systems. All Ukrainians who have fled their country are given clear, albeit temporary prospects. In addition, applying for asylum at a later date remains an option. Third-country nationals from Ukraine in need of protection and long-term residents there may also be granted temporary protection at the discretion of the respective EU states in which they reside – provided they can­not safely and permanently return to their country or region of origin.

The directive and the current decision to grant group-based protection must be trans­posed into national law by each member state. While the implementation is moni­tored by the EU Commission, so far there is no systematic and reliable evidence as to how far all member states actually fulfill the aims and positive standards of the direc­tive. Among other things, the refugees should have access to schooling, the labor market, healthcare, and minimum social benefits.

A special feature of the directive and the current situation is that refugees from Ukraine enjoy a certain degree of freedom of movement. In contrast to the classic asylum procedure under Dublin rules, coun­tries of first arrival do not bear a pri­mary legal responsibility. Rather, refugees can file their application for temporary protection in an EU member state of their choice. This reflects the right of Ukrainian citizens to enter the Schengen zone without a visa (granted mid-2017). Although they are (according to the Temporary Protection Directive) generally expected to remain in place once they have changed their status from visa-free tourists to beneficiaries of temporary protection, member states have declared that they will not return those who are already registered with this status in another country – a corresponding pro­vision of the Temporary Protection Direc­tive (Art. 11) is not to be applied. Instead, the organized relocation to another EU member state requires the agreement of the person concerned (Art. 26). In any case, there are no legal means to coercively move refugees from Ukraine to other EU coun­tries.

Although the number of people crossing the borders of Ukraine toward Europe has fallen significantly from the peak of more than 100,000 per day in the early phase, pass­port controls need to remain relaxed in order to allow all people who desire to leave Ukraine to enter the EU. Downstream identity checks in border areas can be used to a greater extent, especially in case of onward travel to other Schengen states. But this should not lead to the widespread return of internal border controls in the Schengen zone. Instead, in order to meet legitimate security concerns, for example in the area of organized crime or political crimes, the details of protection seekers should be made accessible for security checks on an EU-wide basis. The technical means for doing so still have to be created, as registration systems are neither consolidated at the national level nor interoperable across borders.

The current political consensus to prioritize rapid assistance, flexibility, and open­ness when dealing with refugees from Ukraine is unprecedented. All EU member states welcome the involvement of private and civil society networks. According to initial estimates, half of all refugees from Ukraine can draw on existing social links inside the EU. These people continue to choose their place of residence based on where family members, friends, or ac­quaint­ances reside. This potential for recep­tion and longer-term integration must be maintained over the medium to long term.

The Problem with Relocation

Previous experiences with the reception of large groups of refugees – whether during the Bosnian war in the 1990s or in the con­text of the so-called European refugee crisis of 2015 and 2016 – show that an initially positive attitude can quickly turn sour if state structures appear overstretched. As the primary country of first arrival now hosting more than 2 million refugees from Ukraine, Poland faces this danger. To date, church-based and private organizations as well as individuals have provided the vast majority of Polish assistance to Ukrainian nationals, although until recently the gov­ernment actively hampered civil society from supporting refugees. While there is still enormous goodwill in the general population, large Polish cities such as War­saw and Krakow are reaching the limits of their reception capacities, as refugees now make up as much as 15 percent of residents. A growing number of Ukrainians are mov­ing to smaller towns or leaving Poland to head toward other parts of the EU. How­ever, the number of independent onward journeys – or first tentative wave of re­turnees to Ukraine – is not yet sufficient, especially since further arrivals of more vulnerable or traumatized refugees (such as from Mariupol) are to be expected. The absorp­tion capacities of Germany’s major cities that often serve as the next onward destination for Ukrainians is also reaching a limit.

Yet calls by German politicians for the organized redistribution of refugees from the states bordering Ukraine to other, more distant EU member states, including through an “airlift,” have not been supported else­where. Poland itself remains opposed, which is in part motivated by concerns that any mandatory burden-sharing could set a precedent for the EU’s wider asylum and refugee policy. Instead, during their last extraordinary meeting on March 28, the in­terior ministers of EU member states agreed on a “10-Point Plan on stronger European coordination on welcoming people fleeing the war against Ukraine” that entails a num­ber of more voluntary or indirect sup­port measures. Among these are the estab­lish­ment of coordinated transport hubs to better inform refugees and coordinate their self-directed movements across Europe. This is especially relevant for vulnerable indi­vid­uals and unaccompanied minors. Furthermore, the EU’s solidarity platform that is meant to support the implementation of the Temporary Protection Directive should integrate various EU agencies, sectoral experts (transport and others), and member states. In particular, the EU Agency for Asylum, which only recently received an upgraded legal mandate, should assess the reception needs and standards in all mem­ber states, including private capacities for accommodation. In addition, the EU Com­mission plans to develop a new index that reflects the overall “pressure” arrivals are placing on each member state. This, in turn, forms the basis for the development of national contingency plans to address medium- to long-term needs that could then draw on further European support. Relocation beyond the EU, such as to Canada or the United States, is presented as a flanking measure in the 10-Point Plan, but only in an open-ended and voluntary format.

Any top-down planning for distribution is being severely hampered by the fact that less than a third of Ukrainians within the EU have so far registered for protection. This is both due to capacity limits in the countries of reception as well as the visa-free mobility of up to 90 days (extended by a further three months in Germany) for Ukrainians. In Poland, appropriate pro­cedures and the necessary infrastructure were not put in place until March 16, after more than 1.8 million Ukrainians had already crossed the border. The registration backlog is immense. In the vast majority of cases, state benefits can only be paid out after this administrative act. Germany, too, is currently under great pressure to mobi­lize technical means and human resources to ensure the proper and timely registration of persons in need of protection. It will remain uncertain for weeks – and possibly months to come – as to how many refu­gees are located in which EU member states. There are also no reliable estimates of how much onward migration between EU member states is to be expected over the medium term.

In this extremely fluid context, the EU Commission continues to focus on finan­cial, humanitarian, and administrative support. Early on, the Council of the EU approved the Commission’s proposal to use funds from the EU’s Cohesion’s Action for Refugees in Europe (CARE) funding mecha­nism for the support of Ukrainian refugees. The affected member states will be able to access unclaimed funds from the 2014–2020 period without a financial contribution of their own from April 2022. In addi­tion, funds that were previously earmarked for dealing with the Corona pandemic can now be used for the same purpose. Taken together, these measures are estimated to release almost €17 billion, according to the EU Commission.

A Three-phase Strategy

To effectively deal with the enormous challenges ahead, it is helpful to distin­guish between different phases and prior­ities over time. This includes the need to – from the outset – plan for the long-term and sustainable integration of Ukrainian refugees who intend to, or may be forced to, stay in the EU for good.

Conclusion

The Temporary Protection Directive gives EU member states a flexible, if still opera­tionally vague framework to address the enormous challenges of the Ukrainian refugee crisis. The bold decision to grant group-based protection and to draw upon, rather than hinder, the self-directed mobil­ity of refugees should be followed through, despite the many challenges. EU institutions and member states need to work fur­ther on the coherent implementation of the directive across Europe. The recent 10‑Point Plan is a constructive step in this direction, but not enough in itself. Many questions have not yet been collectively addressed or gone beyond initial ideas, such as with regard to facilitating access to the labor mar­ket. Beyond the urgent issue of regis­tra­tion, all member states should soon agree on and communicate the longer-term pros­pects for the beneficiaries of tem­porary protection, ranging from concrete offers for labor market integration to the possible termination of protection status and shift to other forms of legal stay. This message is more important than symbolic debates about binding relocation schemes.

In order to promote the integration of refugees while retaining the greatest amount of flexibility for a possible change in the course of the war, the basic idea of self-distribution and mobility should be adhered to, even if this means a funda­mental shift in European asylum and migration policy and its much criticized Dublin sys­tem. In this way, the potentials of the people who have fled can be mobil­ized, and the vulnerable among them can be protected. At the same time, the bur­dens and transaction costs for the receiving coun­tries will be lower than with the tra­ditional relo­cation approach. Accom­pany­ing monetary compensation that supports the destination countries and, as far as pos­sible, the local authorities is essential in this context.

An important side effect of the proposed three-phase approach is that it would effi­ciently maintain the parallel existing EU asylum system while opening it to other pro­tection seekers. After all, major unresolved refugee and displacement problems persist in other areas of the world, and these could be exacerbated by the economic and geo­political upheavals of the Ukraine war. Last but not least, we can potentially expect people to flee an increasingly authoritarian Russia.