Since the onset of the Russian onslaught in Ukraine, millions of people from Ukraine have fled to neighbouring countries, with children in one arm and belongings in the other. Unlike asylum seekers from Afghanistan, Eritrea and particularly Syria who came in 2015, those from Ukraine are heartily welcomed in the European Union (EU), even by leaders of countries like Poland, Hungary and Bulgaria. The hospitality has been applauded, but it has also emphasised stark differences in treatment given to asylum seekers from Africa and the Middle East (see Peers). ‘These are not the refugees we are used to ... these people are Europeans,’ Bulgarian Prime Minister Kiril Petkov told journalists of the Ukrainians.

Also on the legal level, different rules apply. On 4 March 2022, the EU’s Temporary Protection Directive, previously labelled a ‘failed instrument’ by some academic commentators, was activated for the first time, in order to provide a special form of protection to people fleeing from Ukraine. In contrast, the so-called Migration Crisis in 2015 when 1 million asylum seekers from Syria came to the EU appears not to have been perceived as a reason to activate the same Directive. It goes without saying that the war in Ukraine is horrible, but it is questionable whether it differs from the war in Syria in that regard. We therefore perceive unequal treatment and the question that arises is whether this constitutes discrimination in the legal sense. Or could we argue that it is reception in the region that cannot be qualified as discrimination? In this blog, we will discuss the issue from a European law perspective and zoom in on the practice in the Netherlands and Switzerland.

The Temporary Protection Directive

The EU’s Temporary Protection Directive was adopted in the year 2001 in the aftermath of the conflict in the former Yugoslavia, with a view to jointly managing intra-European displacements on a large scale, by giving immediate protection to persons fleeing war and, at the same time, avoiding Member States’ asylum systems becoming overwhelmed. According to its Article 1, the purpose of the Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.

Among the main arguments mentioned in the Explanatory Memorandum for activating the Directive in the context of the Ukraine crisis is that the EU ‘is directly impacted by the war on its external borders, notably through increasing migratory pressure resulting from the many thousands of persons seeking protection in EU Member States’. In this situation, granting temporary protection through an easy procedure is seen as the most appropriate approach (see also Council Implementing Decision of 4 March 2022). It should allow the people fleeing from Ukraine to enjoy harmonised rights across the Union that offer an adequate level of protection. Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus help avoid the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Ukrainian nationals, as visa-free travellers under EU Regulation 2018/1806, have the right to move freely within the Union after being admitted into the territory for a 90-day period. Through the Temporary Protection Directive migrants from Ukraine are granted, among other things, the right to a residence permit (Art. 8), work (Art. 12), housing (Art. 13), education for young persons (Art. 14), family reunification (Art. 15) and access to the asylum procedure; in case no decision about asylum is taken during the temporary protection, the Member State must do so thereafter (Art. 17). However, the procedure in such cases differs from that for persons who apply directly for asylum and should have a decision within six months with an extension up to 21 months, based on the Procedure Directive. In contrast, the temporary protection is in principle for one year but can, under certain circumstances, be extended to a maximum of three years (Art. 4).

Equal treatment vs. solidarity?

Compared to the rights of regular asylum seekers under EU law, the position of persons falling under the Temporary Protection Directive is more beneficial. Therefore, there is a difference in treatment which raises the question of whether this amounts to discrimination. Recital 16 in the preamble to the Directive states that, with respect to the treatment of persons enjoying temporary protection under the Directive, ‘the Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination’. In an annotated comment on the Directive, the UNHCR, while welcoming the special status provided by the Directive, also stresses the importance of non-discrimination. Various academic comments have argued that the Directive, whilst aiming to comply with the principles of non-refoulement and of non-discrimination by providing protection for people in need on a collective basis, in fact uses double standards and reflects latent structural discrimination (see e.g. here, with further references).

At the same time, it has been noted in academic writing that the Temporary Protection Directive has always been perceived as an instrument of interstate solidarity. Indeed, in accordance with Article 80 TFEU, the principle of solidarity and fair sharing of responsibility between the Member States governs the Union’s asylum policy. The Court of Justice of the European Union (CJEU) in its case law has emphasised the importance of this principle (see in particular here). The CJEU stated that in order to better cope with an emergency situation characterised by a sudden influx of third-country nationals on their territory, migrants must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States. In our view, the EU principle of solidarity can be seen as justification for different treatment in the case of the crisis in Ukraine with its mass influx of people into the EU. Indeed, the fact that EU Border Member States such as Poland and Romania have to provide protection to their fleeing neighbours calls on the principle of solidarity for the other Member States and requires practical solutions.

The latter point, namely that practical solutions are required in the case of a mass influx, also appears to be the view of the UNCHR. In fact, the UNHCR emphasises the nature of temporary protection as a transitional response instrument, which in the longer run should not replace the regular asylum procedures and, consequently, equal treatment of all persons in that regular framework (see p. 6 under point c here). That reasoning applies not only in the context of EU law, but more generally, e.g. with respect to the situation of Switzerland (which is not bound by the EU law in question, as will be explained below).

Temporary protection in the Netherlands, i.e. in the framework of EU law

EU migration law needs to be implemented in the various Member States. In the context of the Ukraine crisis, the European Commission published guidelines on 2 March 2022 for migration control of the EU external borders for people fleeing from Ukraine. These guidelines should ensure that Ukrainians can leave the country quickly while at the same time ensuring a high level of security control. On 21 March 2022, the European Commission published guidelines for the application of the Temporary Protection Directive. In this way, the European Commission is trying to accommodate the Member States in the complex reception of millions of displaced people. However, this cannot prevent differences between Member States. By way of example, Germany, Spain and the Netherlands have chosen to extend the scope of the Temporary Protection Directive, for example to extend the period of fleeing from Ukraine, whereas countries including Hungary and Poland decided on a limited scope.

There may also be differences in terms of the procedure that will lead to temporary protection. In the Netherlands, initially it was said that refugees from Ukraine did not need to apply for asylum in the Netherlands. However, the State Secretary for Justice and Security announced in a letter dated 30 March 2022 that this group must nevertheless go through a simplified asylum procedure in order to be eligible for temporary protection. The Netherlands has implemented the Temporary Protection Directive in 2005. It provides that persons who qualify for temporary protection are treated as asylum seekers. However, the procedure differs from that for 'normal' asylum seekers. The Immigration Service checks that someone is eligible for temporary protection and does not pose a threat to public order. If there is a right to temporary protection, the asylum procedure will be suspended. It is expected that a decision on the asylum application will not be made until the temporary protection has ended. In theory, this period could last a maximum of five years and the procedure therefore could take much longer than for ordinary asylum seekers. On the other hand, the temporarily protected Ukrainians are allowed to work without a work permit. The balance between being prejudiced or being disadvantaged is not yet very clear. The diligence and benevolence with which the people from Ukraine are received is in contrast to the refugees from Syria, Afghanistan and Eritrea. But that can be interpreted more socially than legally.

Temporary protection in Switzerland, in a different legal framework

Switzerland is not an EU Member State, but it is associated to part of the EU’s asylum law through the EU-Swiss Schengen Association Agreement (SAA). This concerns the so-called Dublin system, i.e. the SAA is limited to certain procedural issues. It is a so-called dynamic agreement, which means that Switzerland is obliged to agree to applying new EU rules that fall within the material scope of the agreement. The EU’s Temporary Protection Directive is, however, not part of this body of law, i.e. Switzerland is not bound by the Directive.

Already in 1998, Switzerland adopted its own, national law on temporary protection (Chapter 4 of the Swiss Asylum Act). Like in the EU, the reasons introducing these rules were of a practical nature, related to a mass influx of migrants fleeing from conflict and the need to deal with them (see here, p. 19). More recently, as a result of the Ukrainian crisis, the Swiss rules were somewhat adapted in view of the EU’s Temporary Protection Directive and then activated. The UNCHR welcomed this decision and also the fact that the Swiss law in adapting the status looked to the EU Directive. However, differences between the two legal regimes do remain. Indeed, it has been found that, overall, the special protection rights under the Swiss law are less far-reaching than those under the EU Directive.

Similar to EU law, within the framework of Swiss national law migrants from Ukraine benefitting from the special ‘protection status S’ enjoy considerably more rights in Switzerland than irregular migrants and notably asylum seekers do. Again, the issue of discrimination arises. For example, in April 2022 the Swiss national radio broadcast interviews according to which less privileged migrants do note the difference in treatment and where they question its legality, suspecting in fact that the reasons might be differences in ethnic origin and religion. The Swiss Refugee Council, an NGO, has argued that it is high time to grant equal treatment to all refugees who are in need of protection. The Swiss Refugee Parliament – an informal body – has taken the same view.

Concluding remarks

To activate the Temporary Protection Directive in the context of the Ukraine crisis was the right thing to do. It is true that granting temporary protection has led to different treatment of people fleeing the Ukraine crisis as compared to people fleeing other conflicts at the same point in time. At the same time, we can follow the reasoning by the UNHCR that situations of mass influx may justify such differences, if only for a limited and reasonable time.

Another question is that of equal treatment of different cases of mass influx. In our view, the Temporary Protection Directive should also have been activated during the Syria crisis. The influx of more than a million fleeing people was a sufficient cause. Any argument to the effect that in the Ukraine crisis the reception is in the migrants’ own region – which would imply that this is a relevant difference between the two cases – would appear to us to be more of a political than of a legal nature, and is not convincing. In fact, there was serious resistance against reception of people from a mainly Islamic country by EU Member States like Hungary.

On a more general level, the question of whether different treatment of people fleeing from different regions amounts to discrimination remains a difficult one. In any case, it needs to be remembered that the principle of equality demands that any differentiation must be objectively justified.