The EU’s decision to grant Ukrainian refugees temporary protection in the country of their choice is not just the right thing to do for displaced Ukrainians, it is also a valuable model for how to fix the EU’s toxic relationship with refugee arrivals.

On 4 March, the EU activated the Temporary Protection Directive (TPD) – a policy mechanism that originated in the aftermath of the Balkan wars but had never been used before – offering three-year residency permits and the right to work to Ukrainian refugees on arrival, bypassing the onerous process of filing and defending asylum claims.

The activation of the TPD represents a stunning reversal from the last decade of EU migration policymaking, animated by a logic of deterrence and externalisation. Though EU leaders may emphasise its temporary and limited nature, they would be well-advised to treat the TPD as a model rather than an exception.

Since the early 1990s, the EU has relied on the first-country principle, requiring asylum seekers to apply for protection in the first EU country they enter – part, it would argue, of trying to set predictable rules for how to assign individual states responsibility for managing arrivals. Over the last decade, however, this has left southern European states straining under a lopsided burden of asylum claims whenever arrivals to a single country have spiked – such as to Italy in 2014-2017, Greece in 2015-2016, or to Spain’s Canary Islands in the last two years.

Of course, the first-country principle burdens refugees as well: They may not wish to seek asylum in their first country of arrival. And as they regard their safety as depending not just on legal status but also on a viable livelihood, they may be tempted to undertake long and potentially dangerous secondary movements to countries in northern Europe with stronger economies and social safety nets. Others might want to join relatives or diaspora communities across one or more borders.

Though EU regulations allow states to return asylum seekers to their first country of arrival, in practice returns are slow and diplomatically fraught. Ultimately, many people are able to apply for and receive protection in secondary arrival countries, but only after enduring a prolonged period of uncertainty and legal limbo.

Changing a divisive and abusive system

Intended to create structure and predictability for receiving states and asylum seekers, the first-country principle has become a source of acrimony in the EU: southern EU states repeatedly demand it be relaxed; eastern European states – especially those led by populist, xenophobic governments – staunchly oppose relocation systems that might require them to absorb Muslim refugees; and northern states are reluctant to alter the system unless everyone gets on board.

With zero-sum approaches consistently leading to stalemate, the EU has defaulted time and again to sustaining the first-country principle – for lack of a viable alternative, rather than out of conviction.

Unable to compromise on sharing responsibility for arrivals, the EU has instead doubled down on deterrence. The 2015 Hotspot Policy designated geographic zones of containment, such as Greece’s Aegean islands, where asylum seekers would be confined pending adjudication of their claims. Deals with Turkey and Libya subcontracted their border forces to prevent migration towards Europe – leading to tens of thousands of coerced returns from Turkey to Syria and to horrendous human rights violations in Libya.

Refugees who manage to survive these barriers and reach Europe face violent pushbacks across land and sea borders. As many as tens of thousands of people have been pushed back from EU borders in recent years, leading to dozens of deaths – if not more. EU officials sometimes voice concern about these pushbacks and sometimes actively cover up these unlawful acts. The New Pact on Migration and Asylum, a package of reform proposals introduced in September 2020 that is still being negotiated, aims to entrench exceptional border procedures, enabling states facing mass arrivals to limit due process rights and turn back refugees.

Taking the deterrence playbook to its logical extreme, a few hundred kilometres north of the open Polish-Ukrainian border, Polish security forces continue violently forcing back Middle Eastern, South Asian, and African refugees pushed into Poland by Belarussian authorities.

These pushbacks, side by side with the open reception of Ukrainian refugees to the south, make the EU’s adoption of the TPD, and the amount of agency entrusted to Ukrainians, that much more jarring and surprising. To a degree, the EU had no choice: As civilians began fleeing invading Russian forces, it was clear that deterrence would not work. Ukraine’s proximity made externalisation impossible, and European public opinion would not tolerate border violence against Ukrainians.

Still, the EU took a leap of faith, dispensing with refugee status determination proceedings and waiving the first-country principle – and trusting refugees to engage with these reduced barriers in good faith. Assuming Ukraine is at peace in three years, when the TPD is currently set to lapse, the EU likewise trusts Ukrainians to return home, or to have secured immigrant visas or refugee status in their EU country of choice.

By activating the TPD, the EU created a rare win-win moment for both refugees and member states. The TPD not only spares Ukrainian refugees from enduring years in limbo pursuing asylum in an undesired country, but also from the risks of attempting secondary movements. Likewise, it spares EU states from the logistical challenge of adjudicating an overwhelming surge in asylum claims, and from the prospect of wasting valuable energy and goodwill arguing about burden-sharing.

Extending the welcome

If the EU can find a win-win solution by entrusting Ukrainians with this much agency, surely there must be win-win solutions to be found by entrusting all refugees with greater agency than the EU currently allows.

Multiple commentators have argued that Europe’s differential treatment of Ukrainian refugees demonstrates its racism or its neo-colonialism – pointing a discerning finger at the distance between the universal values the EU claims and how these values manifest themselves at a practical level.

By adopting the TPD, EU leaders have tacitly admitted that EU migration policies, at a purely mechanical level, are unfit for purpose in the face of crisis situations. They have also shown that they consider border control to be fungible – a tool that can be calibrated to exclude and repress or include and support.

Now, EU leaders must show that the gains realised by including Ukrainians can be extended to other refugee groups.

EU leaders have a unique opportunity, in the coming months, to observe and learn from the implementation of the TPD. If the greater flexibility it provides clearly yields better outcomes in refugee reception and integration than the standard asylum system has shown over the last decade, it will be incumbent on them to extend that agency and trust beyond Ukrainians to all those seeking refuge within their borders.

Joel Hernàndez

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