ANALYSIS Bantayehu Demlie Gezahegn 4 April 2022
In less than a month since 24 February 2022, at least 3.6 million people fled armed conflict in Ukraine according to the UN Refugee Agency (UNHCR). The mass movement of people is one of the aspects of the conflict that attracted global attention and rightly so. One key development is the European Union’s first-ever decision to grant temporary protection status to people displaced by the conflict, in terms of not just how swiftly the decision came about but in revealing the limits of the applicability of the current UN refugee definition to people fleeing conflicts en masse.
In the absence of a global consensus on whether people fleeing conflict are recognized as ‘refugees’, the piece inquires if a temporary protection status is as such a refugee status. It further compares regional approaches in providing protection to those who may not necessarily fall within the global refugee criteria, argues that the Ukraine conflict is one but the latest reminder for the need to expand the universal refugee definition, and provides insight on how the African system could provide a model.
Temporary Protection Status
The EU Council decision to activate the never-used Temporary Protection Directive of 2001 was made on 4 March 2022. The 2001 directive was adopted in the backdrop of conflict in the Former Yugoslavia and the Kosovo crisis. The activation of the directive has to be triggered by a Council Decision establishing the “existence of a mass influx of displaced persons”. In other words, temporary protection will be granted on case-by-case basis, and does not automatically apply to all situations of mass influxes.
Accordingly the March 4 decision established “the existence of a mass influx into the Union of displaced persons who have had to leave Ukraine as a consequence of an armed conflict”. The decision extends temporary protection to Ukrainian nationals and other categories of people displaced from Ukraine on or after 24 February 2022 – and their family members. Those in the ‘others’ category include stateless persons and non-Ukrainians who benefited from international protection or equivalent national protection in Ukraine before February 24. Protection to those not falling in these categories including other nationalities with valid Ukraine residence permits for purposes such as work or study is up to the discretion of Member States.
Those with temporary protection status are entitled to a residence permit (valid for a maximum of three years) and access to other benefits such as housing, employment, education, health and other social services.
The EU’s immediate activation of the temporary protection scheme has generally been lauded by several humanitarian actors including UNHCR, Danish Refugee Council, and International Rescue Committee, among others – with some underlining the need for implementing it in non-discriminatory manner. Another notable aspect of the reactions is the differences in the choice of terms including the automatic use of the term “refugees” by UNHCR while such designation is absent in official documents about EU’s temporary protection measure.
Is a Temporary Protection Status a Refugee Status?
A closer look at relevant provisions indicates that temporary protection status does not mean a refugee status. While those with temporary protection status are eligible to seek asylum, EU Member States may restrict the enjoyment of temporary protection if an asylum application is pending. In the language of the directive and its implementing decision, those enjoying temporary protection are referred as “displaced persons.”
Even if UNHCR were to advocate for the broadest protection possible to persons of concern, the likelihood that people fleeing the Ukraine conflict would fall within the current global refugee criteria under the 1951 UN Refugee Convention (and 1967 Protocol) would only be limited, if not debatable. It is not because those fleeing the conflict do not have legitimate protection concerns – they absolutely do – but simply due to the fact that the existing refugee system is not designed to cover large-scale movement of people fleeing conflict or other comparable disasters. Under the 1951 Convention, a refugee status determination entails an individualized assessment of an asylum claim to establish a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” if the individual were to return to his or her country of origin.
Regional attempts at expanding the 1951 Refugee Criteria
The EU’s “temporary protection” approach could be considered to some extent as one of the regional variants to deal with the limitations of the 1951 Refugee Convention. It does not however provide for an expanded criteria and refugee status remains to be decided based on the 1951 definition and any applicable national asylum law. The EU’s approach runs parallel to the asylum system since those with temporary protection status do not automatically hold refugee status. In the case of people fleeing Ukraine, although temporary protection is intended to “not prejudge” refugee recognition under the 1951 Refugee Convention, the directive grants EU states margins of discretion where for example they can “deter” asylum applications by prohibiting the simultaneous holding of temporary protection status and status of an asylum-seeker.
In the Inter-American system, the Cartagena Declaration on Refugees of 1984 seeks to “enlarge” the refugee concept. Accordingly, the definition includes “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”. However, the Cartagena Declaration is not a legally-binding instrument and the definition remains only a recommendation.
The African approach stands out
From among regional efforts at expanding the 1951 refugee criteria, the African approach stands out from an international refugee law perspective. The 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa – more than half a century ago – provides for a refugee definition that also applies to any person “fleeing external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality”.
The 1969 Convention is the only legally-binding regional treaty providing for an expanded refugee definition, complementing the 1951 Refugee Convention. It means there is no need to set criteria every time there is an influx. In the case of the EU, the activation of the directive and the designation of a mass influx situation require a case-by-case assessment. As such there is a risk that protection is extended, as J. Olaf Kleist agues, to “politically desirable refugees” but not everyone seeking it – comparing the reaction to people fleeing Ukraine with those coming from the Middle East and Africa, among others.
For people fleeing Ukraine, the question remains not whether they can apply for asylum in parallel with or after the expiry of their temporary protection status. But the question is: will they ultimately be recognized as refugees given the narrow definition in the Refugee Convention?
Expanding the 1951 refugee definition in line with today’s realities will ensure the enjoyment of the universal right of asylum by all those who need protection without discrimination. That will mark the end of discretionary schemes for “declaring one to be a refugee” and the beginning of “recognizing one as a refugee.” In the words of Kelly Staples “there are many refugees on the move, in spite of our non-recognition of them”. In this effort to come closer to reality, the African system is way ahead and stands to share lessons from a model tested over half a century.
Bantayehu Demlie Gezahegn is a doctoral researcher atFriedrich-Alexander-Universität Erlangen-Nürnberg (FAU). He is part of the International Doctoral Program: “Business and Human Rights: Governance Challenges in a Complex World,” funded by the Elite Network of Bavaria. He can be contacted via firstname.lastname@example.org.
 Preamble Paragraph 14, Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0055&from=EN
 Article 1, Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32022D0382&from=EN
 See Article 1, Council Implementing Decision, supra note 2
 See Article 19 (1), Temporary Protection Directive, supra note 1
 Steve Peers, Temporary Protection for Ukrainians in the EU? Q and A, 27 February 2022, http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html
 Section III (3), Cartagena Declaration on Refugees, Adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia from 19 – 22 November 1984, https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf
 Article 1 (2), Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Convention”), 10 September 1969, https://au.int/sites/default/files/treaties/36400-treaty-36400-treaty-oau_convention_1963.pdf
 J. Olaf Kleist, The return of ‘Cold War’ refugee policy, 04 March 2022, https://www.ips-journal.eu/topics/european-integration/the-return-of-cold-war-refugee-policy-5762/
 Kelly Staples, Simplifying refugee status determination, Forced Migration Review No. 51 (January 2016), https://www.fmreview.org/destination-europe/staples