By Katharine Woolrych (HIAS Europe) and Nataliia Krynytska (Right 2 Protection)

Prior to Russia’s full-scale invasion last year, Right 2 Protection (R2P) was providing legal assistance to around 1,500 asylum seekers and refugees inside Ukraine annually. From 24 February 2022, these people found themselves among the millions displaced inside the country and across borders. Based on recent interviews with secondarily-displaced asylum seekers and refugees, we are calling on the EU and Member States to bridge critical protection gaps and ensure a more consistent approach to protecting people fleeing Ukraine.

Refugees and asylum seekers in Ukraine: a small but at-risk population

For more than 21 years, HIAS and R2P have provided legal assistance to displaced people arriving in Ukraine. The UN Refugee Agency (UNHCR) registered some 5,000 asylum seekers and refugees in the country in 2021, but the true number of people with international protection needs prior to the crisis was likely much higher. As only around 100 people are granted protection in Ukraine each year, many asylum seekers were transiting the country to seek safety in the EU. The stateless population, estimated at some 80,000 people, also comprises people in need of protection. In total, of up to half a million non-Ukrainians were recorded in 2021, though our study focused specifically on people seeking or granted protection.

While these numbers can seem vanishingly small in the context of the millions displaced by the war, asylum seekers, refugees (and stateless people) are among the most at-risk groups in this crisis. Having already fled other conflicts or persecution, asylum seekers and refugees in Ukraine may lack documents or even a nationality, do not have a safe home country to return to, and are often denied status due to serious shortcomings in the Ukrainian asylum system.  To better understand their experience since the outbreak of war, in the latter half of 2022 we interviewed 300 asylum seekers and refugees who fled to the EU. Our findings expose failings in the EU’s Ukraine response that put all third-country nationals at risk, not least undocumented or stateless people.

Temporary protection does not protect all people fleeing Ukraine

No one would disagree that the Temporary Protection Directive (TPD) has been highly effective in providing protection and access to rights for some 4.9 million people fleeing Ukraine. Yet, nearly four in ten of the people we interviewed had not received temporary protection. Many asylum seekers and refugees are de facto excluded by the scope of TPD protection. To be included, they must have been granted long-stay documents in Ukraine. This proviso is rather paradoxical: if these people had permanent residency, they would likely not be asylum seeking or stateless. Even if refugees or asylum seekers have been granted documents in Ukraine, these are often retained by the Ukrainian migration service, or Member State authorities fail to recognise or understand them. Though states are free to extend the scope of the TPD (for instance, to protect asylum seekers or stateless persons lacking documents), in practice most states have only extended protection to Ukrainian nationals who left before 24 February.

Problems with TPD implementation for those eligible

Beneficiaries of international protection in Ukraine are eligible for temporary protection in the EU, so long as they hold documents to prove their status. Yet, our research also found problems with TPD implementation in practice. Some of the people we spoke to waited up to five months to receive temporary protection, while Ukrainian nationals are issued same-day documents in at least 17 countries. Overall, 40% of the asylum seekers and refugees interviewed faced delays and obstacles in being granted status. Often, people who should enjoy TPD rights are wrongly misdirected to asylum systems. Further, only 35% of the non-Ukrainian TPD beneficiaries we spoke said they were able to travel freely within the EU, despite free movement being permitted under TPD.

Poor access to legal support and identity documents

Non-Ukrainians attempting to escape Ukraine struggle to access legal information and advice. While all EU member states have launched mass information campaigns on temporary protection, webpages in Ukrainian and Russian will be of little help to Syrians and Afghans – the top two nationalities interviewed for our study. Only a quarter of the respondents knew where to find legal assistance. Faced with a lack of help or accessible information, they are left to navigate a legal labyrinth of asylum policies at national and EU level. As an alarming consequence, more than 10% of the people surveyed were left without identity or travel documents. These people are unable to return to Ukraine to see or retrieve family members, or to access basic needs.

Extending temporary protection to leave no one behind

Despite the TPD’s indisputable success in granting protection on a massive scale, non-Ukrainians fleeing Russia’s war risk finding themselves out in the cold. This runs contrary to the EU’s primary law commitments to ensure equal treatment of all people seeking safety. The EU can act to remedy this situation, both by extending the scope of temporary protection (or encouraging extensions by Member States) and by insisting upon proper implementation at state level.

The European Commission has itself pointed out that widening the scope of temporary protection would be to the advantage of states, by avoiding overburdening asylum systems. If action was taken at EU level, it would prevent a disarray of state practice and guarantee harmonisation. It would also make good on the EU’s commitment to protect all people displaced by the war. Nonetheless, Member States themselves can also extend the national scope of temporary protection. TPD implementation should also take into account the specific needs of third country nationals: the EU and Member States should make tailored information legal advice and support available; provide necessary documents; facilitate access to housing, food, and healthcare; and collect data to better respond to these people’s needs.

In response to Russia’s war on Ukraine, the EU acted swiftly to provide protection and reception conditions to millions of people in a matter of months. This should prove that humane treatment of non-Ukrainian asylum seekers and refugees is not a pipe dream. Moreover, it is a necessary component of the EU’s vision of a Union founded in respect for human rights. To make this vision a reality, the EU and Member States must act extend protection to at-risk populations fleeing Ukraine,  and take a stand for non-discriminatory refugee protection across-the-board.

Op-ed: ECRE publishes op-eds by commentators with relevant experience and expertise in the field who want to contribute to the debate on refugee rights in Europe. The views expressed are those of the author and does not necessarily reflect ECRE positions.

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.