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Crisis or non-crisis: What the Temporary Protection Directive could mean for migration in Europe

By Matondo Charlotte Bechert | Issue 23

Photo from Markus Spiske on unsplash

At the beginning of October 2023 the EU prolonged the special status of Ukrainian refugees under the Temporary Protection Directive until March 2025 and newly invested into the accommodation of Ukrainians fleeing hardship and the devastations of war. Under this scheme, Ukrainians have been granted protection and the option of refuge within the EU. As President of the European Commission, Von der Leyen claimed in her final State of the Union address of this legislation in September 2023, the EU should be ‘a Union of freedom, rights and values for all’. The European Union prides itself on principles and virtues of the Enlightenment, with solidarity, individual rights and the rule of law being foundational for the European identity. And so, as the EC president implies, the response to the Ukrainian plight and the activation of the Temporary Protection Directive are an expression of the dedication to these values.

Nonetheless, there exists another regime of migration still, and currently in place in Europe. These two systems coexist, while being functionally and structurally independent. Their distinct application reinforces and reproduces inequality between migrants of different origins.

A discourse of values, solidarity and (averted) crisis

The now much discussed European ideals have been prominently put to the test in 2015, in what was widely described as the European migration crisis. In the years since the first ‘refugees welcome’ chants, Europe has seen increasing hostility towards migrants, the rise of parties campaigning on anti-immigrant-rhetoric and an introduction of ever stricter asylum policy reforms, nationally and supranationally. One result was the New Pact on Migration and Asylum, an EU-level policy package published in 2020 that promised a streamlined, yet stricter procedure by more efficiently distinguishing ‘non-returnable refugees and other beneficiaries of international protection’ from ‘expellable irregular immigrants’ and activating an asylum system of solidarity among Member States (cf. Cerrera and Geddes, 2021). The New Pact aims mainly to relieve the coastal and border members from the burden of handling first entry immigration, as well as to improve the European management capacities. It does this by fast-tracking screenings of claims and people at the outer borders and by deepening cooperation with Schengen and neighbouring countries, such as Tunisia, for the enforcement and militarisation of border controls, as well as the acceleration and increase of returns. These policies outline the first migration regime, which counts mainly on deterrence and intimidation, prioritising return and the minimisation of asylum claims. The “swift”-ness of the decisions supposes a humane procedure. Solidarity, while key to this policy strategy, refers primarily to solidarity with Member States impacted by immigration.

In stark contrast to this stands the second regime, regulating the migration of millions of Ukrainians fleeing the Russian war on the borders of Europe, since 2022. Contrary to what The Economist and others predicted shortly after the escalation of the conflict, the dysmorphia of this momentous mobility into a crisis was averted. Indeed, the EU successfully implemented the Temporary Protection Directive, which was created to prevent the national asylum systems from becoming overwhelmed. It is activated in case of a sudden mass influx of displaced people from non-EU countries, unable to return home – this being considered the first case of its kind since the creation of the directive in 2001. And so, instead of asylum seekers, Ukrainians in search of refuge firstly became people in need of protection. Within a year, ‘more than 4 million people were granted immediate protection in the EU’, including residency status, access to housing, labour market and social welfare. Solidarity meant here, welcoming, offering immediate support and access to the necessities of life. The Temporary Protection Directive laid the foundation for a needs- and people-focused conglomerate of measures that prioritised inclusion and a robust welcoming infrastructure.

Nonetheless, the crisis in the form of overwhelmed asylum systems seemed to feature again this autumn. Public outlets and large media houses were speaking of a new ‘migration crisis’ in Europe. This all came to a head when within a few days in September 2023, hundreds of small boats were landing on the southern shores of Italy, leaving thousands of African migrants – mainly from Sub-Saharan Africa, notably Guinea – stranded on the tiny island of Lampedusa. These migrating people would not fall under the Temporary Protection Directive and therefore filled the local reception capacities, when demanding asylum. Lampedusa, which has been the site of small boat landings for almost a decade, has a limited capacity of 400 in its reception centre. With the Italian government struggling to manage the demands of this influx locally, a new crisis was quickly proclaimed. Given the recent success of the newly activated protection mechanism, the question arises whether the crisis as such could not have been averted.

A reality of material and temporal inequality

The discourses of values, solidarity and crisis surrounding the two contrasting regimes create the basis for two unequal realities of mobility. While navigating the system of an unknown country remains complicated, people benefitting from temporary protection are not faced with the same burdensome bureaucratic processes and waiting times before accessing labour and housing markets and medical care, among others. The status of temporary protection is granted without application. While the process of waiting for rights, such as the right to work, to be granted can take up to six months for regular asylum seekers in Europe, these rights are granted automatically and with no waiting time to temporarily protected migrants. Waiting can be the defining experience of applying for asylum in Europe – for some it still is.

Even though Ukrainians may also apply for asylum, the guarantee for this access to the asylum procedure differentiates them further from irregular migrants attempting to seek asylum at the EU external borders. Tunisia being the primary transit country for irregular migrants crossing the Mediterranean to Italy, is known to obstruct the path, especially for Black African asylum seekers, towards the realisation of their claim. Access to the asylum procedure can not be guaranteed for irregular migrants coming through these transit countries. Notwithstanding that even if one succeeded in claiming asylum, as laid out before, the regimes at the outer borders prioritise deterrence and return. While one’s progression through the asylum system is uncertain and full of obstacles, the other’s is cleared intentionally to allow for safe and effective support. Two realities of immigration to Europe co-exist. The discursive framing of managing migration versus welcoming migrants produces vastly different and unequal realities of access for migrants in Europe.

Averting crisis

Just like the increase in migration to Europe in 2015, the current movements are defined as crises or successes, not on the basis of the number of refuge-seeking people arriving on EU territory, but by the preparedness of the infrastructure that receives them and the effectiveness of the policies in place in dealing with the management of human mobility. While one migration regime managed to avert a crisis, the other is producing precarious realities of exclusion and denied access. Differential application of moral and value-based principles, as well as the resulting disequalising immigration opportunities at the European borders, put into question the universality of rights to asylum, human dignity and protection in the European Union. Faced with ever increasing instability and global challenges, the question imposes itself: What can we learn from the successfully averted migration crisis in spring 2022, over the Russian war in Ukraine? How do we prevent other moments of influx from turning into a migration crisis in Europe?

The climate crisis is destroying livelihoods, shrinking habitable areas in the Global South and by effect also increasing the vulnerability to political and economic instability. This calls into question nationalist imaginations of sedentary and separated societies, exclusively tied to their ancestral lands. It also means that increasing numbers of migrants, regular and irregular, will have to fall under the category of ‘displaced persons from non-EU countries who are unable to return to their country of origin’. What does this mean for the European migration legislation? Does this predictable mass influx warrant temporary protection? Who will be granted temporary protection in the future and how will this temporality be determined? Will the framework of temporary protection, as the exception to a rule of border militarisation, deterrence and underfunded local infrastructure, take hold in the face of inevitable mobility? Or does the definite and irreversible destruction of homelands due to climate change, exclude its victims from the congenial position of the temporary visitor?

Beyond the unease over unequal treatment, there is a sense that Europe has shown that it can, and is capable of planning, deciding and investing in internal unison and in line with its values of individual rights and solidarity. The past year has taught us our own capacity for compassion. However, if the Union does, even now, not manage to accommodate African immigration with claims to asylum, even on a much smaller scale, we need to deeply question the nature of the differentiation between the two regimes and call out the unequal application of rights.

Matondo Charlotte Bechert is a civil servant with the European Parliament and holds a postgraduate degree in Migration Studies from the University of Oxford’s Department of International Development. Her work centres on the interplay of European external affairs, development cooperation, migration and climate governance, with European colonial legacy and visions for the future of the European project in the world.


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