A Response Based on Access to Protection and Rights

In view of millions fleeing Ukraine, in March, the EU activated the Temporary Protection Directive (TPD). We spoke with Catherine Wollard about the current state of affairs, implementation challenges and lessons for future crises.

Dear Ms. Woollard, what is you assessment of the activation and implementation of the Temporary Protection Directive (TPD)?

The activation of the Temporary Protection Directive was the right thing to do politically. It has greatly enhanced the prospects of protection and eased the task for Member States. The preliminary analysis of the first stage of implementation of the TPD is now becoming available, based on the monitoring by ECRE and others (EUAA/UNHCR). Many challenges become apparent, particularly at the practical level - these need to be addressed now. Three months into this crisis, the situation is evolving from a short-term humanitarian response to medium-term structural support and societal inclusion. Identifying and addressing emerging challenges will help this transition.

Do all EU member states grant temporary protection status to people fleeing Ukraine?

All EU Member States are bound by the council decision to grant temporary protection. The exception is Denmark, which has an opt out of EU Justice and Home Affairs matters. Nevertheless, the Danish Parliament agreed on a Special Act which will apply to Ukrainian citizen and refugees recognized in Ukraine.

What are the main challenges related to the implementation of the TPD in the various Member States?

Reviewing the situation on the ground, a first challenge concerns the scope of the TPD. At least 12 Member States have used their discretion to expand the categories covered, for instance to include third country nationals who were non-permanent residents of Ukraine or Ukrainians who left before the invasion. However, the majority of Member States choose a rather restrictive approach. While it should be noted that the scope of the TPD is wide – and indeed wider than might have been expected – there is no reason not to follow the guidance of the Commission and go beyond the strict letter of the Decision. The problem of scope is compounded by the absence of an effective remedy for those excluded from the TPD. Furthermore, member states are confronted with the risk of complex multi-level legal challenges. This could have been avoided with a more foresighted decision on a wider scope.

Even greater difficulties appear on the practical level. The challenges linked to registration have been well documented:  yes, a huge number of 2.7 million people have been registered (96% holders of Ukrainian nationality, which is to be expected given resident population composition at the time of the invasion). There are however 5.1 million people who have fled, meaning that up to 2.4 million people are awaiting their registration or choose not to register.

Two challenges which could explain this high number are the recognition of documents issued by Ukraine (where more guidance from the EU would be highly valuable) and the issuing of ID documents to Ukrainians, where delays have been recorded in some Member States. The latter is important because the documents may be necessary for accessing rights, like access to housing, social security and the labour market. In the EU, the very uneven distribution of people who have fled Ukraine results in a huge variation of responsibilities that Member States have and the capacities to live up to them.

This takes us to biggest challenge so far – housing. Unsurprisingly, ensuring that everyone has adequate housing is the primary concern in most Member States. Problems involve state provision of unsuitable accommodation; pressure on and lack of support for families hosting relatives; difficulties in matching refugees with hosts offering accommodation; and finally, the long-term sustainability of all the above options.

Since the TPD provides the great benefit of having a protection status immediately available and avoiding often lengthy and stressful status determination procedures, challenges to access those rights stand out.  It is a logical matter of sequencing that access to housing emerges as the first challenge. However, access to health, education and the labour market are all likely to become more prominent the longer people are forced to stay outside the country of origin.

How could those challenges be addressed?

First, a broader interpretation of the scope of the TPD will be useful. Second, EU authoritative guidance on recognition of documents (including electronic documents) and document types, as well as related questions of evidence and evidential standards is immediately needed. Third, many of the practical challenges are linked to state capacity: how quickly can a state mobilise to issue documents, or produce guidance for ministries, agencies, local authorities and others involved in the response? What financial and human resources are available to increase capacities, for instance, in the provision of emergency housing or education provision?

Thus, it is clear that the response has to be “whole of society” and indeed whole of state. All relevant ministries need to be involved as does civil society. EU funding, especially cohesion funds, could be decisive if spent in the right way. Civil society is already playing a crucial role and will need to continue to do so – there is no choice because states cannot manage this alone.

Investing in early support is of the essence. For instance, provision of advice and support to people early on can avoid problems later. Such support can be of different nature, like  legal assistance at the point of registration, provision of advice on hosting options to ensure better matches, or information from community groups to dispel myths on different member states etc.

What are positive aspects that the EU should retain from the TPD in view of ongoing and future protection measures?

There are several elements that should be preserved for future responses, most importantly that the EU is determined to deliver and support a response based on access to protection and rights. This open political approach needs to hold and be expanded to all people searching protection in Europe.  

Thank you very much for the interview.

The Interviewee

Catherine Woollard took up the position as Director of the European Council on Refugees and Exiles in 2016. ECRE is a pan-European alliance of 105 NGOs in 39 European countries working to defend the rights of refugees and displaced persons in Europe and in European foreign policy. ECRE’s work covers litigation, advocacy and communications. Ms. Woollard has worked in the NGO sector since 2003, focusing on human rights, conflict prevention, security and governance reform. She has also worked as university lecturer, as a government official and as a consultant advising governments and international organizations on human rights and governance issues.