More than 2.6 million people are estimated to have fled Ukraine since the Russian invasion nearly 20 days ago, a number that is steadily growing daily. The world has watched in stunned horror at the recklessness of the Russian assault, a show of might right on the doorstep of Europe and the rest of the Western world. It carries a brazenness of former empires, something most of our generations only saw the tail ends of or heard about from our parents.
The human cost of this invasion is staggering. The UN High Commissioner for Refugees Filippo Grandi referred to it as "the fastest-growing refugee crisis in Europe since World War II." News reports of maternity hospitals being bombed and journalists targeted have likened this conflict to some of the most heinous acts of war. Neighbouring states in Eastern Europe are quickly mobilizing mass humanitarian responses for the thousands of people crossing into their territories daily. Few who are watching the crisis from afar could argue with the reasons “why” people are fleeing from Ukraine en masse; much of the world has been given front row seats to the devastation.
What will happen to these millions of refugees? Where will they go? How will they care for their families? Well, unless the law changes, most Ukrainians will not qualify for “official” refugee protection under international law, nor will they be legally considered “refugees.” This might seem absurd, but as I wrote in a previous article discussing the crisis in Afghanistan only a few months ago, the narrow scope of asylum law only recognizes someone as a refugee if they can prove they would be “persecuted” if they returned to their home country. The 1951 Refugee Convention states this persecution must be due to race, religion, political status, nationality, or membership of a particular social group. People who flee generalized violence or war in their country are not considered in this definition. To complicate matters more, for someone to be determined a “refugee,” the burden of proof is not about whether they already were persecuted, but whether they would be persecuted if they returned.
For the case of Ukrainians, the European Union acted quickly and humanely, creating an exception to the barriers of refugee law by activating a 2001 policy called the Temporary Protection Directive for the first time since its creation in the aftermath of the Balkan and Kosovo wars. “All those fleeing Putin's bombs are welcome in Europe,” stated European Commissions’ President Ursula von der Leyen upon the policy’s initiation last week. This allows those from Ukraine to be granted a Temporary Residence Permit in the EU for at least one year, with the possibility of an extension for an additional two years. While this is not a permanent status, it will allow Ukrainians the right to work, to find housing, to seek medical care, and for children to attend school throughout Europe immediately, which is a remarkable feat and an example of refugee policy innovation during an obvious time of crises.
Similar types of temporary protection were offered to the nearly 70,000 Afghans evacuated to the United States through “Operation Allies Welcome” in the remaining months of 2021. Afghans were given Humanitarian Parole status in the US for two years, but like the EU Directive, they are not guaranteed a path to residency or citizenship. Afghans are required to apply through the traditional US asylum system for extended status; a system that has a backlog of more than two years.
Temporary Protection schemes for refugees are important to address the immediate needs of people fleeing crises. But they are also risky for two main reasons. The first is that most conflicts are not temporary, but rather are ongoing and even protracted. In her recent New York Times article comparing the length and scale of the current conflicts around the globe, Sarah Chodosh challenged the use of the word “unprecedented” by the media to describe Ukraine; finding conflicts such as Syria, Yemen, South Sudan, Afghanistan and Myanmar to be similar in scope and on-going for years, sometimes decades after the media attention is lost. “It’s far too easy to view refugees, especially those fleeing acts of war, as temporary,” she writes, “Maybe we can be forgiven for that — so often we hear about asylum seekers only at the beginning of a crisis, and rarely in the years that follow.” Policy innovation is needed to create more open and long-term “temporary” protection schemes, provided without discrimination to groups seeking safety. Columbia, for instance, granted legal protection in 2021 to over 1.7 million Venezuelans for 10 years.
The second reason temporary schemes are risky is because they are political, and not universal in application. Europe did not activate the Temporary Protection Directive when over a million people sought asylum from Syria and Afghanistan in 2015. They instead fell back on the outdated asylum system to assess individual cases, creating complex and inhumane holding camps, and completely barring entry to Europe within the year. The biases in the global North towards granting asylum to those approaching borders from the global South has been noted since the signing of the Refugee Convention when much of the world was in the early stages of decolonization and weren’t recognized as “real” refugees. Legal scholar BS Chimni from Jindal Global Law School coined this the “myth of difference,” which has evolved over the years to where we are now; with the majority of the world’s refugees living in camps in the global South, and nations who are geographically far from most global conflicts “cherry-picking” who they wish to bring over through resettlement programs. Nations such as the UK who will rarely see asylum-seekers at their borders can “choose” who to turn away and who to allow in through strict vetting processes. The US can boast the largest refugee resettlement program in the world yet turn away hundreds of thousands of asylum-seekers at their Southern border.
Will the current crisis change the global refugee law?
The attention and response to people fleeing Ukraine might be what changes international refugee law for the better. The Refugee Convention is seen as wildly outdated to meet the needs of the refugee populations. The urgency of the situation in Ukraine, its proximity to the EU and UN, and the world’s expressed solidarity with their needs might push along the change needed to create a fair and balanced system of protection. The public needs to maintain support for Ukrainians longer than the media and continue to push policy-makers towards this shift in perspective. “Sympathy fades quickly,” Chodosh reminds us, “Let’s not let it disappear before putting it to good use.”
The author is a PhD candidate, Migration Studies, Institute of Social Sciences, University of Lisbon.
