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The future of refugee protection

Jennifer VenisFriday 20 May 2022

The Ukraine refugee crisis has prompted unprecedented public and political support. Global Insight assesses the potential for more compassionate responses to future crises.

On the surface, the international response to displacement caused by Russia’s invasion of Ukraine seems to be a success story. There has been a huge outpouring of support from the public, with people offering refugees space in their homes and leaving prams at train stations for mothers who left everything but their child behind. Countries neighbouring Ukraine, such as Poland, have welcomed an extraordinary number of people, and the European Union has triggered a directive that simplifies refugees’ access to safety, healthcare and more.

But, at a deeper level, the story this crisis tells is of a painful contrast to other refugee crises. It has placed a spotlight on the dangers posed by overly bureaucratic protection schemes and on the ‘smoke and mirrors’ of states promising support while passing anti-refugee laws. The successes of the reaction to the Ukraine crisis, meanwhile, highlight what an international response to refugee crises should look like, prompting the question: why have we never seen this before?

Painful contrasts

Matthew Saltmarsh, Head of News and Media for the United Nations’ Refugee Agency (UNHCR), tells Global Insight that ‘the reaction to the Ukraine crisis has been hugely positive, in terms of the coverage, the outpouring of support from individuals, from the public, and also from governments and the private sector in terms of fundraising, which has been phenomenal, probably unprecedented’.

He highlights Poland’s efforts to welcome all Ukrainians fleeing the conflict, and the EU’s implementation of its Temporary Protection Directive (TPD), which helps the bloc avoid strain on traditional asylum systems by granting collective protection status, one to three years of residence and other rights to people fleeing Ukraine.

But these positives sit in stark contrast to past and ongoing responses to other international refugee crises globally. Saltmarsh says ‘it’s very important to stress that there are at least 85 million forcibly displaced people in the world. And the needs of those people haven’t gone away at all. Indeed, if you look at the economic backdrop, in many ways, it’s much more difficult now because of economic contractions and inflation’.

‘So, while the appeals for Ukraine have been generously funded so far, which is very positive, when we look around the world at some other situations, they’re still chronically underfunded. Our Central African Republic fund for this year is only 6 per cent funded. Iraq is 8 per cent funded.’

While the appeals for Ukraine have been generously funded so far […] when we look around the world at some other situations, they’re still chronically underfunded

Matthew Saltmarsh
Head of News and Media, UN Refugee Agency

Saltmarsh adds that it’s not just about funding, but also about the sense of fairness in terms of the asylum system. ‘We’ve been saying for a long time, asylum is not negotiable, the right to asylum is universal’, he says. ‘And in the lead up, particularly to the Ukraine crisis, we saw a number of incidents […] around the world, where asylum seekers were pushed back, were not given access to asylum in many cases, [and] where measures that were imposed for Covid still haven’t been lifted.’

Barbara Wegelin, Treasurer of the IBA Immigration and Nationality Law Committee and a partner at Van der Woude de Graaf Advocaten, highlights that the Ukraine conflict is the first time the TPD has been triggered, despite previous refugee crises affecting Europe. ‘This resolution has been sitting somewhere for 20 years’, she says. ‘The EU discussed triggering it in 2015, in response to Syria, and didn’t – how much misery could that have prevented?’

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Afghan refugees ask for justice and process resettlement within 36 months during a rally outside the UN Refugee Agency UNHCR's office in Jakarta, Indonesia, 15 November 2021. Reuters/Ajeng Dinar Ulfiana

For her, ‘It’s especially painful to see this response compared to three different crises: Syria in 2015, where people literally walked to Europe and we didn’t trigger that directive; more recently Afghanistan, because those were our allies and we basically have left a lot of them at risk in [an] Afghanistan run by the Taliban, and now several countries are already saying it’s a safe place to send people back to; and finally the pushbacks at the Poland-Belarus border last winter’.

The contrast with the response to the Taliban’s takeover of Afghanistan is particularly awkward for the United States, according to Greg Siskind, Vice-Chair of the IBA Immigration and Nationality Law Committee and Founding Partner of Siskind Susser in Memphis. While 80,000 people were evacuated swiftly, over 40,000 Afghans are still waiting on humanitarian parole in Afghanistan itself or in neighbouring countries. ‘Those applications have been sitting there, unadjudicated’, he says, ‘for about eight months’.

Saltmarsh sees a combination of factors contributing to differences in political and public responses to these crises. ‘One is the protracted nature of these situations – Syria, 11 years, Afghanistan, 40 years plus, decades for Somalia. Other crises are perhaps more recent but are not getting the same level of support – we’ve been making a lot of noise about the Sahel region of Africa for the last couple of years, where there’s a combination of chronic political instability, the impacts of climate change, conflicts. But it’s very hard to get global attention on it.’

On the question as to whether racism might be at play, Saltmarsh says the UNHCR hopes that isn’t the case. He notes that there were some appalling racist incidents at the start of the Ukraine crisis on the borders, but that the UNHCR and non-governmental organisations (NGOs) discussed what was happening with authorities on both sides of the border, and that nothing like that level of incidents has been observed recently.

‘Hopefully it’s just the surprise that this has happened in Europe and the effect is seen directly in European countries, but I think time will tell as to whether there is a justifiable reason to be concerned about racial prejudice feeding into the contrast between support for Ukraine and other crises’, says Saltmarsh.

Wegelin says racism may play a part, but agrees proximity has a significant role in how people respond to the different crises taking place. ‘For people from Poland, from former Soviet Socialist Republics, this is so close to the bone’, she says. ‘It’s very recognisable, close, threatening and immediate. And that makes a huge difference, because you’re able to empathise more easily.’

For people from Poland, from former Soviet Socialist Republics, [the Ukraine crisis] is so close to the bone. It’s very recognisable, close, threatening and immediate

Barbara Wegelin
Treasurer, IBA Immigration and Nationality Law Committee

‘Also, the majority of people see this conflict in a very black and white framework, with good guys and bad sides, since Russia invaded a sovereign nation’, she adds. ‘But the discourse about conflict in the Middle East and in Africa is much more complicated, because it’s framed as civil war, warring factions, popular resistance movements turning ugly. It’s more difficult for people to comprehend, so people have more difficulty viewing the civilians who are affected and fleeing for their lives as victims.’

Wegelin hopes that the perception that refugees are people who just happen to have the bad fortune to be at the wrong place at the wrong time in history will be held, not just towards people in Ukraine, but equally towards those from Africa and the Middle East.

She adds that the whole discourse around migration has been so toxic for so long and hopes that the Ukraine crisis changes this. ‘But there is always a lot of popular support when a conflict is in the spotlight’, she says. ‘There was huge support for relocating people from Afghanistan last summer, but as that dropped out of the political and media cycle, support drops too. It’s likely that the same thing will happen with Ukraine.’

In places such as the US, the acceleration of displacement from Central and South America due to the climate crisis and other factors has been the ‘backbone’ of populist policies that have become more severe over the past ten years, Siskind says, and ‘some sensitivity to that may be driving policy now’.

Alex Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and Founding and Managing Partner of MKS Lawyers in Vancouver, argues that displacement crises are going to happen more often, not less – whether because of a war, the climate emergency, or for some other reason – so ‘countries are going to have to get over this’.

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A general view of Hala Orbita, a multi-purpose indoor arena, which has been transformed into an accommodation facility for refugees fleeing Russia's invasion of Ukraine, in Wroclaw. 28 March 2022.Reuters/Agencja Wyborcza.pl

Smoke and mirrors

Behind the outpouring of support for Ukraine, some governments still continue the toxic trend of restricting refugee pathways. In mid-April, the UK government announced a plan to relocate asylum seekers to Rwanda for processing if they enter the UK through ‘dangerous or illegal journeys’, such as by crossing the English Channel in a small boat. Those whose claims are rejected will be deported by Rwanda, and even those granted refugee status will not have a legal right to protection in the UK.

Enver Solomon, Chief Executive Officer of the Refugee Council, said in a statement that ‘This announcement comes at a time when every day the UK is witnessing the brutality of war that desperate Ukrainian families are fleeing. This is the reality faced by refugees escaping conflicts all over the world’.

‘We know these policies will do little to deter desperate people from seeking protection or stop the smugglers but only lead to more suffering, chaos and at huge expense to the UK taxpayer of an estimated £1.4 billion a year’, the statement continues.

Further, the UK Nationality and Borders Act, passed at the end of April 2022, distinguishes between asylum seekers on the basis of their route to the UK – those who arrive by crossing the Channel will no longer receive the same protection as others, and will have more limited family reunification and welfare rights.

Asylum seekers who arrive ‘illegally in the UK – who could have claimed asylum in another safe country – can be considered as “inadmissible” to the UK asylum system’, according to a government press release. It also includes measures to ‘end the merry-go-round of legal challenges’ to removals and ‘speed up the removal of those with no right to be in the UK’.

In the press release, the Home Secretary Priti Patel said that ‘We will now work tirelessly to deliver these reforms to ensure we have an immigration system that protects those in genuine need while cracking down on abuse of the system and evil people-smuggling gangs’.

Solomon’s statement argues that ‘criminalising asylum and creating two tiers of refugees is wrong in principle, does nothing to address the reason why people take perilous journeys to find safety in the UK, and is out of step with the British public’.

‘The government rightly praises the incredible public support for those fleeing war in Ukraine, yet for children facing bombs in Yemen, or Uyghurs fleeing genocide and desperately seeking safety, there are no humanitarian routes to safety here’, the statement continued.

For Wegelin, these laws and policies are ‘basically fuelling this racism discourse because it makes it clear that different rules apply when you’re a refugee from continental Europe or if you’re a refugee from Eritrea or Iraq. But those people are fleeing the same thing’.

While the UK has opened two schemes for Ukraine’s refugees – a family reunification pathway and local sponsorship – it has also been criticised for not waiving visa requirements. Further, applicants still in Ukraine are waiting weeks for updates.

REUTERS/Fabrizio Bensch

People fleeing Russia's invasion of Ukraine arrive at the border checkpoint in Medyka. 9 March 2022. Reuters/Fabrizio Bensch

In early April, the UK’s Minister for Refugees, Lord Richard Harrington, told radio station LBC that the rollout of the schemes was ‘embarrassing’. Refugee rights advocates in the UK have further argued that the delays caused by bureaucracy are putting lives at risk.

As Siskind emphasises, ‘In a refugee crisis, the last thing you want is to set up a whole bureaucratic structure where people have to jump through hoops before they can escape to safety.’

In a refugee crisis, the last thing you want is to set up a whole bureaucratic structure where people have to jump through hoops before they can escape to safety

Greg Siskind
Vice-Chair, IBA Immigration and Nationality Law Committee

A Home Office spokesperson said that, ‘We continue to process visas for the Homes for Ukraine scheme [set up to support those escaping the conflict in Ukraine] as quickly as possible, but accept progress has not been quick enough’.

The Home Office has made changes to visa processing, including allowing for biometric checks to be done after arrival in the UK, and ‘greater resource has gone into the system’.

When asked in a televised interview why the government has not waived visa requirements, the UK Prime Minister Boris Johnson said that, in a wartime situation, people may be ‘pretending’ and that ‘it is important to protect the system from those who might want to abuse it’.

Streamlining the path to safety

For Stojicevic, both the Afghanistan and Ukraine crises highlight the need for a more coordinated, multilateral and less bureaucratic approach to refugee crises, such as the IBA’s proposal for Emergency Evacuation Visas (EEVs).

This proposal from 2019 suggests a multinational, multi-organisational approach to evacuating people from life-threatening situations and, once they are in a safe third country, ‘triaging’ them with the entire range of multilateral, multinational and complementary pathways to both refugee protection and immigration.

All of this should be done, Stojicevic explains, with the support of local NGOs and the host state and, crucially, maximum agency for the displaced individuals, so they can choose which pathway suits their needs – temporary protection if they have hope to return home one day, or family reunification if they don’t consider that a possibility, for example.

He adds that Canada has reacted to the Ukraine crisis with an EEV-style approach, although it has not been responsible for evacuating people and it does require biometric identification. ‘Canada has essentially said, any [Ukrainian] who wants a visa to come to Canada merely has to apply for one, and we’ll give it to them’, says Stojicevic. ‘And thus far, in practice, people are getting them in less than two weeks. And once they are here, they’re being given a work permit that is valid for up to three years depending on how long their passport is valid, and it’s open and there’s no strings attached to it. This is the first time we have done this in a very long time.’

‘Once they arrive, there’s a suite of services being created, various other organisations that have been mobilised to help settle people if they want to be settled’, he adds. Different pathways have been created, including family reunification and refugee protection, giving those that come to Canada a choice about their future.

Russian claims for protection

Barbara Wegelin, Treasurer of the IBA Immigration and Nationality Law Committee, highlights a forgotten side of Russia’s invasion of Ukraine: the claims for protection from Russians at risk of persecution in their own country.

She tells Global Insight that ‘The numbers of claims from Russians are definitely on the rise in the Netherlands. We’re seeing two dominant groups seeking protection – members of the LGBTQ+ community, because there’s even less tolerance of diversity now, and people who are critical of the government, because there’s no space for dissent anymore’.

But she says there’s no unified response to those protection needs and ideally immigration lawyers would appreciate some guidance from the EU. ‘The people who are leaving now are very much victims of the same conflict as Ukrainians and you want to basically protect them from being sent to penal colonies in remote Russian regions for the rest of their life’, she says. ‘We’re slowly falling through history and Russia is turning into its 1930s version. We need to protect people from falling victim to that.’

‘We need to use this Ukrainian example now as a template and forget about the previous approaches. Increasingly we should be looking to this way to do it: get people to safety, then worry about the other elements’, he adds.

The EEV proposal also includes creating a permanent committee to advise the UNHCR on triggering mechanisms for EEV use, and Stojicevic says the emergency evacuation of Afghans when the Taliban reached Kabul would have been an appropriate situation.

Some of the temporary ad hoc arrangements used by some Western countries to fly large groups of people to a pre-arranged safety point in neighbouring countries mirrors part of the proposal, but ‘the better approach would have been if this was done coherently and multilaterally’, Stojicevic adds.

He suggests that if there was something in place where resources could be pooled between participating countries with the full complement of processes and pathways, ‘then you would have had a more coherent international response’.

‘Another challenge with Afghanistan is that the situation is different because it’s a state actor, now, that is the oppressor’, he says. ‘So everyone is looking for permanent, not temporary, protection and solutions. As a result, you have less flexibility from the EEV perspective to bring all of the complementary elements to bear. But I actually don’t see the difference. If you’ve already identified certain people as ones that you’re going to bring in, what stops you from bringing them in to Canada and the US and then processing them once they’re there?’

A better future

For Wegelin, aspects of the response to Ukraine have shown the possibilities of more compassionate and coordinated approaches to refugee crises in the future. She hopes the EU’s Temporary Protection Directive, for example, ‘becomes a blueprint for how we deal with crises in neighbouring regions. It’s showing the way to a more compassionate manner of accepting refugees as part of our societies’.

The local community engagement with the crisis also gives her hope for a more sustainable approach in the long term. While centralised crisis coordination is necessary initially, ‘when refugees have had their claims processed and they arrive in host countries, what doesn’t work is these huge convention centres where people are stuck for long periods and they can’t become part of society’, Wegelin says. ‘If you want people to integrate – which is better for the host country and the refugees – then you need smaller scale schemes towards a local model where cities or councils are organising the housing, schooling, employment, healthcare needs and so on, so refugees can properly integrate into communities in smaller numbers.’

For Saltmarsh, one thing that’s been particularly positive is an outpouring of support from the private sector. ‘We [were] absolutely inundated with emails and calls from companies that wanted to help in any way they could. And that’s something that we hope can be harnessed beyond the Ukraine crisis for the long-term and that can become structural and sustainable. And then the important players in the global economy become much more focused on solutions for refugees over the medium and long-term.’

‘If you can bring all of those players together and create an ecosystem that systemically supports refugees and works on solutions and development, then I think there is reason to be optimistic’, he adds.

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk​​​​​​​

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