Navigating the Controversy: European Policies and Ukrainian Refugees
The ongoing invasion of Ukraine has transformed the European landscape of migration, making Ukrainians the largest group of arriving asylum seekers. This group stands out not only for its demographics – comprising predominantly of women, the elderly, and children – but also for its unprecedented transborder mobility. In light of these significant developments, it seems important to examine this new refugee population and their differential treatment within the context of post-Dublin Europe.
Since February 2022, Ukrainians have benefited from an indiscriminate reception including quicker temporary protection processes. This contrasts sharply with the challenges faced by other asylum seekers who have had to spend substantial funds on their dangerous journeys, face life-threatening risks during pushbacks, and endure longer waiting periods within the legally entrenched system of the Fortress Europe. This raises questions of whether Ukrainians benefited from preferential treatment in terms of the choice of their destination and access to job markets, housing, and social services, and whether it was intentional or the result of various factors converging.
Understanding Facilitated Transborder Mobility: a Unique Configuration of Ukrainian Citizenship Within the EU
In recent discussions, facilitated mobility for Ukrainians is often associated exclusively with the Temporary Protection Directive (TPD), a legal tool activated in response to the Russian aggression. However, even if this directive had not been activated, Ukrainians would have still displayed a significantly distinct pattern of transborder mobility compared to other refugee groups. This is due to two main factors.
Firstly, starting in 2017, Ukrainians gained intra-European mobility rights similar to a short-term Schengen visa by possessing a biometric passport. This achievement, resulting from a decade-long Ukrainian campaign within the European Council – was integrated into the Ukraine-EU Association and Free Trade Agreement (FTA). Consequently, Ukrainians’ access to the EU predates the war, setting them apart from asylum seekers lacking legal travel documents, and aligning them closer to full European citizens, albeit with some notable exceptions.
The FTA, although facilitating the flow of goods and capital from Ukraine, fell short of granting Ukrainians full membership in the European political community. Since 2017, Ukrainian citizenship has taken on somewhat semi- or quasi-European characteristics. In this capacity – that could be described as a “child-like” or “infantilized” form of EU citizenship – Ukrainians are eligible for protection but face exclusion from active participation in the decision-making processes, particularly regarding their migration status.
Secondly, whether under the Temporary Protection Directive (TPD) or not, Ukrainians would still meet the criteria for individual international protection according to the EU law. Subsidiary protection, a separate category from asylum, covers situations where there is a threat to life or physical safety due to indiscriminate violence in an international armed conflict. Unlike other asylum seekers from war zones who undergo admissibility interviews to determine access to European territory, Ukrainians, because of the nature of the invasion and their prior Schengen status, were deemed eligible by default.
“Ukrainian Exceptionalism” – Between Travelers and Asylum Seekers
Since February 2022, and perhaps for the first time since the introduction of the Nansen passport, Europe experienced a wave of refugees who were not considered illegal migrants or undocumented asylum seekers. Instead, they were recognized as legally mobile refugees, free from visa restrictions. This gave rise to a unique phenomenon that could be referred to as refugee tourism, merging two opposite and formerly mutually exclusive categories: the unrestricted traveler and the asylum seeker. In addition, the quasi-European character of Ukrainian citizenship allowed them to bypass the Dublin regulations, which oblige refugees to request asylum only in the country of first entry. This rule did not apply to Ukrainians (as is the case for unaccompanied minors of all origins), precisely because their mobility was not restricted by the absence of a valid travel document.
Therefore, it is important to recognize that the effect of “Ukrainian exceptionalism” did not arise from an unprecedented act of generosity by European governments. Instead, it emerged through a multifaceted interplay of historical contingencies, gaps in international law and strategic policy choices made in response to an influx of a new type of refugees, whose mobility European governments were not able to restrict.
This insight offers a more nuanced perspective than the common belief that the facilitated treatment of Ukrainian refugees is solely due to the racial and religious hierarchies ingrained in the European border regime. While it does not invalidate the exclusionary and racialized nature of the Fortress Europe, it highlights that Ukrainians managed to navigate it due to an interplay of factors, with their citizenship status playing a significant role alongside other considerations, beyond ethnicity, religion, or skin color.
An Experiment in Europe After Dublin?
In conclusion, what the Ukrainian case highlights is the importance of considering regional governance dynamics and historical contingencies when examining the production of refugee regimes. Rather than emphasizing potentially divisive notions of “Ukrainian exceptionalism,” it should be viewed as a loophole within the Fortress Europe framework and a practical experiment in a post-Dublin European context. This experiment shows the benefits of allowing asylum seekers to freely choose their country of destination, and exercise their right to move within the EU, even for a limited period.
Furthermore, the Ukrainian case serves as a compelling argument for former colonies to advocate for free circulation rights between their territories and the former colonial powers, as a form of compensation for past exploitation and extractive practices. Such rights could offer protection to their citizens during times of armed conflict. As Ukraine progresses toward EU membership, it should actively support these negotiations and possibly take a leading role in advancing this cause.
Dr. Nataliya Tchermalykh is a social and legal anthropologist currently holding a teaching and research position at the Center for Children’s Rights Studies at the University of Geneva. In the past years, she has led a research project supported by the SNSF, dedicated to exploring the access to justice for unaccompanied minors. Her research primarily centers on the role of law and legal actors in various social arenas, including children’s migration.
