A Comparison of EU’s Approaches to Imminent Mass Influxes

Over the last decade, European countries have faced mass influxes mainly due to internal conflicts and wars. The European Union (EU) has responded to these challenges with a diverse set of approaches. Two distinct strategies stand out: EU readmission agreements for managing irregular mass influxes from North Africa and the Middle East, and temporary protection measures activated in response to the Ukrainian-Russian War.

Starting in the early 2010s, the European Union (EU) shifted its focus to external border management, employing pushback policies and consequently engaging in “readmission agreements” with neighboring states (e.g. Turkey in 2016) to curb imminent mass influxes from North Africa and the Middle East.

Following the outbreak of the Ukrainian-Russian War in 2022, the EU adopted, however, a different approach. It activated the 2001 Temporary Protection Directive, categorizing Ukrainian refugees as recipients of “temporary protection” (ReliefWeb 2023), which meant granting them various human and refugee rights, such as residence permits, access to the asylum procedure, employment, and suitable housing.

Currently, the governance of imminent mass influxes is shaped around two different approaches: readmission agreements and temporary protection. These approaches, each with its own legal basis and scope of measures, have led to a variety of discussions and controversies on human and refugee rights.

Comparative Assessment of EU Approaches

These approaches have different legal foundations. Readmission agreements are governed by Article 79(3) of the Treaty on the Functioning of the European Union (European Union 2012), allowing cooperation with third countries. Temporary protection relies on various legal sources, Council Directive 2001/55/EC (European Union 2001), and international instruments like the 1951 Refugee Convention and its 1967 Protocol (UN General Assembly 1951 and 1967).

Another notable difference between these approaches is their criteria for identifying individuals in need of protection. Readmission agreements target predominantly irregular immigrants and potential asylum seekers, categorizing them as such. Whereas, temporary protection classifies those affected by mass influxes as temporary refugees, rather than irregular immigrants.

The geographical scope further sets these approaches apart. Readmission agreements seek solutions beyond the EU’s external borders, often engaging with neighboring countries. Temporary protection, conversely, operates within the national territories of European countries, offering an internal solution to imminent mass influxes.

Furthermore, readmission agreements restrict the mobility by returning refugees to their origin or transit countries. Temporary protection on the other hand encourages mobility of individuals, allowing them to move freely within EU member states for a limited time.

Impact on Human and Refugee Rights

Human and refugee rights play a pivotal role in distinguishing these approaches. Temporary protection offers a comprehensive framework explicitly safeguarding various human and refugee rights, including freedom of movement within EU member states for a specified period, typically 90 days (European Union 2001). This mobility facilitates better living conditions and family reunification, thus promoting integration and overall well-being.

Furthermore, temporary protection ensures access to essential services, such as healthcare, education, housing, and social welfare support, in compliance with host countries‘ laws and regulations. It also recognizes the importance of family unity, providing provisions for family members to join the temporary refugee in their host country. Member states are encouraged to facilitate integration, by granting these temporary refugees the right to work and offering opportunities for language learning and cultural integration. Additionally, these temporary refugees have the right to access legal aid and assistance to protect their rights, navigate legal processes, and lodge appeals when necessary.

Another fundamental aspect of both approaches, the principle of non-refoulement, prohibits the return of individuals to countries where they may face persecution, harm, or threats to their life or freedom. Temporary protection explicitly respects this principle, ensuring that individuals under its purview are not sent back to perilous situations. This commitment aligns with international obligations and human rights standards, providing robust safeguards for refugee protection during imminent mass influxes.

In contrast, readmission agreements, while addressing the return of irregular immigrants, often lack explicit provisions for safeguarding these rights. Freedom of movement is curtailed as refugees are returned to their country of origin or transit, limiting their ability to seek better opportunities or reunite with family members. Access to basic rights and services is not typically outlined in readmission agreements, potentially raising concerns about access to healthcare, education, housing, and social welfare support for those subjected to return.

Family unity is often not addressed, which can disrupt social bonds and support networks. Employment and integration may not be encouraged, hindering the reintegration of returnees into their home countries and potentially exacerbating their vulnerability. Access to legal aid and assistance for those subjected to return is also not explicitly guaranteed in readmission agreements, leaving individuals without recourse to protect their rights. Readmission agreements may also raise concerns regarding non-refoulement, given their lack of explicit provisions for safeguarding this critical right, especially when the safety of the receiving country is uncertain.

Conclusion: EU Should Reconsider its Approaches to Mass Influxes

In conclusion, the EU’s governance models for handling imminent mass influxes have different legal bases, scopes of measures, and impacts on human and refugee rights. Temporary protection aligns more closely with the international obligations of European states on human and refugee rights, while readmission agreements may raise concerns regarding human and refugee rights. Considering these factors, it is crucial for the EU to carefully evaluate and compare the legal governance methods to ensure compliance with international obligations and protect the rights of individuals in need of international protection during periods of imminent mass influxes.

Ayşe Yıldız Demir is a dedicated author and researcher in the field of international public law with a significant focus on fundamental human rights, refugee and asylum seeker rights and international conflicts. She is currently carrying out a PhD on external migration control methods and the erosion of the fundamental rights of refugees at the University of Glasgow.

References:

-European Union, Consolidated version of the Treaty on the Functioning of the European Union, 26 October 2012, OJ L. 326/47-326/390; 26.10.2012 art. 79 (3)
-European Union: Council of the European Union, Council Directive 20 01/55/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, 7 August 2001, OJ L.212/12-212/23; 7.8.2001, 2001/55/EC art 3(2), 6(2), 12, 13, 14, 18
-ReliefWeb, NGOs Mark One-Year Activation of Temporary Protection Directive and Call for Continued Support for Refugees from Ukraine, accessed 23.05.2023
-UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 art. 1, 33
-UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267