Emergency Actions in the War in Ukraine: the Role of State and Non-State Organizations in Supporting Internally Displaced Persons
Prof Yevgen Gerasymenko, Taras Shevchenko National University of Kyiv
This post follows the author’s research stay at Edinburgh Law School in June 2023. The visit was funded by Research England, on behalf of UK Research and Innovation (UKRI), as part of a wider University of Edinburgh-Taras Shevchenko National University of Kyiv twinning arrangement.
On June 6, the Educational and Scientific Institute of Law of the Taras Shevchenko National University of Kyiv and the School of Law of the University of Edinburgh organized the round table aimed to discuss the issues of the state and civil society response to emergency situations of internal displacement during a large-scale war. The mentioned event was held within the framework of the joint project “Labs4Twinned Research” in the context of the cooperation agreement signed by Taras Shevchenko National University of Kyiv and the University of Edinburgh.
The Russian Federation full-scale war against Ukraine started on February 24, 2022 caused serious repercussions in several areas. One of them was an estimated 11 million people forced to leave their homes and seek protection both abroad and within the territory of Ukraine. Official statistics provides for about 4,9 mln. registered internally displaced persons (IDPs) in Ukraine[1] including 3,5 mln. replaced after 24th of February 2022. But estimations at least double this number. Therefore, it is very important to investigate the emergency response provided for internally displaced persons through the analysis of what has been and is being carried out in terms of humanitarian aid by state and non-state actors as the emergency actions. This analysis was made by the international team leaded by the author of this blogpost[2].
General standards for the IDPs protection are established by the Guiding Principles on Internal Displacement (1998), The Pinheiro Principles (2005), the Framework for National Responsibility (2005), Council of Europe Recommendation (2006[3], Manual for Legislators and Policy Makers (2008) and the UNCHR Handbook for the Protection of Internally Displaced Persons (2010). Despite not-binding nature of these documents Ukraine along with the majority countries of the world implemented most of state obligation into the national legislation.
The Law of Ukraine “On ensuring of rights and freedoms of internally displaced persons” (hereinafter “IDP law”) was adopted in 2014 in response to a mas influx of IDPs primarily from the Crimea and conflict-torn areas of Donetsk and Luhansk regions. The Law, inter alia, (1) set a definition of IDP; (2) detailed the registration procedure, (3) established some instruments for the IDPs rights protection.
These standards in relation to the state emergency response provide inter alia for: decent shelter, collecting and maintaining data and statistics on needs of IDPs, coordination by the specially designed agency, procedures of seeking and accepting support, identification and prioritization.
Analysis of reports, articles, databases and other relevant documents demonstrates slow response of the State of Ukraine during first days of the full-scale Russian aggression 24th of February, 2022 to provide protection and support for persons escaping from the battle-zone. However, civil society, through its various forms of action, has maintained an essential role in the provision of humanitarian aid services.
At the early beginning the state was not prepared to provide the urgent immediate actions despite that IDPs phenomena was existing since 2014. In this situation of lack of state support, one should note phenomenal first response of civil society, individual actions and initiatives, established and coordinated horizontally. Therefore, temporary solutions of shelter and basic needs were offered mostly by the non-state actors, overcoming inefficiency of coordination, organization and financial resources.
Lack of access to information on evacuation, shelter and other social needs especially within the most vulnerable groups of population were noted as one of the factors that caused many deaths and injuries during first weeks of war.
Nevertheless, despite limited resources state actors made enormous efforts to adapt their operations to the situation in few weeks. “Ukrzaliznytsia”, a national railroad operator, introduced free “evacuation” trains that became the main tool of facilitating evacuation in the country-wide scale. Two weeks after the full scale war started it was decided that in case local state authorities are unable to pay socials such payments will be done by the central office. State introduced one-time payments of about 150 Euros to the ny paperwork.
To guarantee and facilitate rights of IDPs and first of all need to be protected by its state it is recommended that the United Nations is to consider instruments to establish and maintain humanitarian corridors as one of several possible ways to temporarily stop armed conflict. In this regard specific routes and logistical methods should be agreed by all relevant parties to allow the safe passage of humanitarian goods and/or people from one point to another in an active combat area. Another possible way to ensure freedom of movement to the safe parts of the state demilitarized zones in a specific area and could be agreed upon for a specific period of time. In this regard United Nations is generally the body responsible for negotiating the conditions for the implementation of humanitarian corridors. Humanitarian corridors are specific routes and logistical methods agreed upon by all relevant parties to allow the safe passage of humanitarian goods and/or people from one point to another in an area of active fighting, under UN leadership. As an example, such humanitarian corridors were established by several resolutions of the UN Security Council as the UN Safe Areas in 1993 in the territory of Bosnia and Herzegovina during the Bosnian War. On the UN level it is recommended to develop and sign binding instrument (Convention) on IDPs establishing inter alia obligation and responsibility of the states to ensure implementation and enforcement of the movement related rights; to put all administrative efforts to organise evacuation of civilians, to organise humanitarian corridors; to introduce national emergency legislation. At the state level, it is recommended that the Government of Ukraine empower one of the Ministries for coordination of the IDPs protection; to stimulate development of the civil society institutions; to allocate resources for the IDPs rights protection, implementation and enforcement.
Unfortunately, the current situation in the World and number of conflicts caused thousands of deaths of civilians prove that humanity is not ready for total disallowance of armed conflicts as one of the conflict resolution instruments. But we believe that progressive society should made all efforts to exclude deaths and minimize suffering of civilians after these conflicts.
[1] https://www.msp.gov.ua/timeline/Vnutrishno-peremishcheni-osobi.html#:~:text=Початок%20активних%20бойових%20дій%20після,досягає%204%2C9%20млн%20осіб.
[2] Kristine Bdoyan, Yevgen Gerasymenko, Volha Khvasevich, Oleksandr Kyselov and Nuno Oliveira. “Emergency response to the war in Ukraine: The role of state and non-state actors in supporting IDPs.” (2022) 6 Global Campus Human Rights Journal 115-136
[3] Recommendation Rec(2006)6 of the Committee of Ministers to member states on internally displaced persons https://rm.coe.int/16806b5aaf
Image: People crowd under a bridge as they try to flee across the Irpin River on the outskirts of Kyiv, Ukraine, March 5. Emilio Morenatti/AP
Empirical Socio-Legal Research on the EU’s Externalisation of Asylum: Amalgamating Texts and Refugee Artworks?
Berfin Nur Osso
Doctoral candidate at the University of Helsinki, Faculty of Law. LL.B. and Minor degree in International Relations (Koç University, Istanbul), MSocSc in International Relations and Political Science (Tampere University, Finland)
Socio-Legal Research on Externalisation?
Refugees (including asylum seekers) often encounter barriers that prevent or restrict their movement before, whilst, or after reaching EU territory. One of the most contemporary specimens embodying manifold forms of borders in the EU context, the EU-Turkey Statement of 18 March 2016, ensued in reaction to the 2015 migration phenomenon. This Statement exacerbated a growing trend in the EU since the establishment of a common asylum system in the 1990s: externalisation of migration management. With externalisation, the EU attempts contain refugees in the spaces of exclusion at its external borders (e.g., Greek hotspots) and ultimately in refugees’ home countries or in third countries (such as Turkey). This materializes with the expulsion of ‘undesired’ refugees from EU territory and its asylum system towards these countries. Externalisation thereby also suppresses refugees’ voices in claiming asylum and enjoying human rights in destination states. Thus, it manages refugees’ ‘access to right to have rights’, namely their access to state territory, asylum (including procedures), and the spaces within which they can enjoy their human rights.
In this contribution, I reflect on the methodology of my doctoral research project that explores the interplay between externalisation and refugee struggles in regaining their ‘right to have rights’ despite externalisation. The interplay I ponder in my project enables to expose the perspectives of both states and refugees as part of the mutually-constitutive externalisation process. To make sense of externalisation, we need to understand how externalisation laws are produced and used in reaction to refugee mobility, and how refugees challenge externalisation laws and practices with their political agency. This demonstrates externalisation as a constantly evolving process within which borders continuously rejuvenate and challenge refugee struggles.
The proliferation of externalisation since the early 1990s in the EU has proliferated scientific research on its impact on refugees and their rights. Externalisation in the Greek-Turkish external border has received considerable attention, notably since the launch of the EU-Turkey Statement. The academic background of these researchers varies within law and other social sciences. Nevertheless, shortcomings exist in legal research that concurrently conducts legal analysis, draws on the methods beyond ‘traditional’ legal approaches, and engages in theoretical and philosophical discussions. Much of the currently available research that focuses on externalisation perceives refugees as the nemeses or the victims of externalisation laws and practices. Conversely, a growing body of research in critical (border) studies investigates externalisation also from the perspective of refugees and focuses on harkening refugees’ voices (see e.g., Fiske, 2016; Thomaz, 2018; Üstübici, 2018; Catalani, 2019; Martiniello, 2022). Hence, there is an urgent need in legal research to address the link between externalisation and refugee struggles by bridging the distinction between the law in the books and the law in its social and political context. While the doctrinal approach falls short of explaining this phenomenon with its own ‘methods’, a theoretically informed and empirically oriented multidisciplinary approach is essential. In this sense, socio-legal studies provides ample grounds for conducting theoretical and empirical research on externalisation.
Amalgamating Texts and Refugee Artworks within Empirical Socio-Legal Research
Addressing the shortcomings in legal research on externalisation, my doctoral project merges a sophisticated theoretical framework with empirical data using qualitative approaches. I engage in empirical analyses drawing on textual and (visual) ethnographic data in the context of the Greek hotspots and Turkey as part of EU’s southern external border. I interpret the research data by developing a theoretical and conceptual framework that combines perspectives from legal theory and critical border studies (e.g., Arendt, 1973, 1998; De Genova, 2017; Huysmans et al., 2006).
The project encompasses three main methodological components: (1) a qualitative content analysis (QCA) of legal documentation; (2) a QCA of non-legal documents; and (3) a visual ethnography and QCA of refugee artworks. First, I aim to unveil how certain concepts, principles, and rules (such as the safe third country concept) are produced in EU law for externalising asylum, and how they are used in practice. In this sense, I analyse the content of legal documentation (legal norms and rules) and non-legal documentation (e.g., policy documents, reports of relevant government agencies, international organizations, and NGOs) through qualitative content analysis. I expose how externalisation laws and their implementation produce certain categories of individuals to manage their access to EU territory, asylum, and rights within designated spaces (such as the Greek hotspots and Turkey).
Second, I seek to reveal how the implementation of these concepts, principles, and rules is perceived and experienced by refugees. I dwell on visual ethnography as a method for collecting first-hand data from the field. In this sense, I analyse the paintings created by the refugees hosted by the Hope Project Greece in the island of Lesvos. To make sense of refugees’ experiences of borders, I attend to the patterns that reflect in the refugees’ artworks their struggles to subvert borders buttressed by externalisation. Utilizing the data I obtain from legal and non-legal documents and refugee artworks, I engage in theoretical reflections on the interplay between externalisation and refugees’ self-emancipatory struggles through political agency. I write up the research findings into four peer-reviewed articles.
Conclusion
Externalisation scholarship is vast, and this phenomenon is largely investigated. What is underinvestigated, particularly in legal studies, is the juxtaposition of the perspectives of states and refugees. The overarching aim of this research project is shedding light on how externalisation in the EU context produces border regimes as the zones of contestation between EU and Member States and refugees. This contestation transpires between the attempts of EU and Member States to control and manage refugee mobility and refugees’ struggles to overcome such attempts. Through investigating the paintings created by artmaking refugees in the Greek Lesvos Island alongside textual data, the research enables bridging the gap between creative imagination and the law. The enriched insights provided with the amalgamation of the analyses of legal and non-legal texts and refugee artworks help us understand the blind spots of EU asylum law and its externalisation. In this sense, socio-legal research elucidates externalisation in its social and political context.
Image by, and with consent of, Nazgol Golmuradi, Hope Project Greece
Sleeping BEaUty – The Revival of the EU Temporary Protection Directive
Ms Jannicke Martin, Candidate, LLM in Human Rights Law 2021/22, winner of the EU Asylum and Immigration Law Prize 2022, University of Edinburgh
Introduction
Faced with the reality of mass arrivals of displaced people following Russia’s large-scale invasion of Ukraine, the established mechanisms of the EU asylum systems ran a substantial risk of collapsing under the migratory pressure. Determined to avoid putting the efficiency of timely asylum processes and, consequently, the asylum seekers‘ rights for international protection in jeopardy, there was instant and wide-spread support among EU interior ministers to make use of the previously dormant EU Temporary Protection Directive (TPD).
Designed to ensure temporary protection in the event of a mass influx of displaced people, the TPD contains provisions meant to streamline asylum procedures and to circumvent the concrete impact on the operations of the asylum system. In addition to procedural provisions, the Directive further enables protection-holders to benefit from social and welfare rights such as residence permits, access to employment and banking services, as well as free movement in EU countries. Despite this rich legal toolbox, the TPD has not been put to use since its inception in the wake of the Balkan war. With a two-decade long history of non-implementation, there are concerns about the contemporary adequacy of the instrument’s ability to facilitate equitable burden-sharing.
Taking a Closer Look at the TPD‘s Legal Toolbox
Upon its activation by means of a unanimous Council implementing decision on 4 March 2022, the TPD’s in-built solidarity mechanism (Art. 25), which functions on the basis of both financial and physical reception burden-sharing, began its work in balancing the efforts between Member States in receiving and bearing the consequences of the mass arrival (Preamble). Instead of relying on hierarchical criteria as envisioned by the Dublin III Regulation (Chapter 3), the TPD is set out to ensure the capacity-sensitive redistribution of applicants among all EU Member States, apart from Denmark. This flexible burden-sharing mechanism seems to make the directive a time-sensitive and efficiency-based framework to address situations of mass influx. So why wait all this time and only activate the tool now?
Pursuant to Article 5(3)(c) and 25 of the TPD, the Council implementing decision installs the use of a ‘Solidarity Platform’ through which Member States inform each other of their reception capacities and number of persons enjoying temporary protection in their territories (para. 20). However, as the 2016 Commission Evaluation Report on the TPD reveals, the assessment of a state’s reception capacities is inherently voluntary in nature and not pursuant to a common capabilities framework. As such, the mechanism encroaches on the principle of fair responsibility sharing and may run the risk of violating Article 80 of the TFEU. Yet, with solidarity at the forefront of the EU Agenda on Migration, the TPD‘s central tenet cannot be seen as a lost cause, but as one in need of a more refined operational legal framework.
In Solidarity We Trust
The present absence of a central record on member states’ reception capacity solicits the development of a combined capacity index on the distribution of persons eligible for temporary protection. Without legally-fixed and comparably calculated key indicators that record the distribution of migration pressures, there cannot exist a fair basis for objective measurement of the Member States’ actual capabilities. Instead of EU Member States communicating “in figures or in general terms – their capacity to receive such persons,” (TPD, Art. 25 (1)), reliable quantitative indicators would enable a united and functional capacities overview that can help alleviate interconnected issues associated with member states’ varying expertise in responding to high pressure migration situations.
Partially drawing on a study by the European Parliament Directorate General for Internal Policies, five potential competence measures should represent the baseline for such shared statistics. Firstly, GDP per capita, as well as population and territorial size should serve as indicators representing the capacity to financially support and physically accommodate displaced persons in the country. Member states with comparatively high GDPs and larger population have the means to carry more of the burden-sharing. In order to assess the capacity to physically accommodate asylum seekers, the inverse variable of population density must be considered. By weighing population and territorial size, the measure can help determine and account for a lower capacity.
It is necessary, in the spirit of solidarity, to further mediate these key indicators in order to avoid unproportional distribution. An asylum-seeker and refugee numbers index, as currently developed by the EU Justice and Home Affairs Council (Press Conference, 18:23), could represent and acknowledge the previous efforts of applicant accommodation, as to take the real-time strain of a state’s asylum system into consideration and gauge current capacities more accurately. Lastly, other key social indicators associated with resident rights, such as but not limited to health care, housing opportunities, education, and access to the labor market, represent crucial tools to assess the availability of the TPD’s set minimum protection rights standards (Art. 12-14) in each member state. As as result, a combined capacity index for unified information-sharing help identify holes in member states capacity framework, but simultaneously strengthen other provisions within the directive.
Conclusion
The activation of TPD is a hopeful sign in promoting European solidarity in the legal framework of migration and asylum. Granted a successful operational makeover of the burden-sharing mechanism, the directive’s underlying objective can still contribute to a fair sharing of responsibility as foreseen by the TFEU. A standardized capacity overview may not only help the Council in matters of urgency to efficiently “recommend additional support for Member States affected” (TPD, Art. 25 (3)), but also enable better cooperation with other agencies, such as the European Union Agency for Asylum, as proposed in the 10-Point Plan on stronger European coordination.
Nevertheless, with the looming climate migration of an estimated 216 million people looking to escape environmental hotspots by 2050, the EU will have to constantly reevaluate its available redistribution instruments and decide when and how they need to be revised and potentially reinvented. Only in a joint commitment to enable unified progress will European solidarity be upheld.
(Legal Status as of 12.04.2022)
Asylum-seekers’ and refugees’ access to healthcare in Germany and the UK
Asylum-seekers’ and refugees’ access to healthcare in Germany and the UK
Sioned Ellis, MSc Public Policy, University of Edinburgh
Asylum-seekers and refugees (ASRs) are particularly vulnerable to a number of health risks, from infectious diseases acquired in transit to psychological trauma resulting from war or persecution. This makes the accessibility of healthcare services paramount for them, but in many countries, they face significant barriers to accessing such services.
Analysis of these barriers herein aims to demonstrate the need for ASRs to be granted full access to health services from the point of their arrival in a host country. While said barriers are common across Europe, their presentation can vary by country. Comparisons between the UK and Germany can thus be particularly valuable given the typical distinctness of the countries’ approaches to asylum policy.
Before making such comparisons, however, it is important to identify the wider consequences of ASRs’ exclusion from healthcare wherever they seek refuge. These include deterioration in their health outcomes, knock-on effects on their quality of life, and increased pressure on the emergency services to which they are forced to turn as a last resort.
Shared challenges
The EU’s standards for the treatment of ASRs are contained in the Common European Asylum System (CEAS). The CEAS stipulates that ASRs should have access to necessary and emergency healthcare; however, its lack of detail about cost raises questions of affordability. Even in countries with fully state-funded health services, ASRs may be required to pay for their care depending on their documentation and legal status. Emergency services are often excluded from costs but this inevitably pushes people to either overuse such services in non-emergency situations or, more commonly, to delay treatment until their health reaches a breaking point.
ASRs are further deterred from accessing healthcare by the practice of data sharing between health and immigration authorities; in the UK in 2016, for example, data sharing by the NHS caused the Home Office to be alerted to the presence of 5,854 undocumented migrants. The practice has since been curtailed in the UK but still occurs in cases of overdue payments for treatment. Perhaps as a consequence of this, ASRs are more likely to rely on NGOs for certain health concerns, specifically for support following rape and other violence in the UK and for mental healthcare in Germany.
Another issue is that frequent internal relocations by immigration authorities disrupt ASRs’ medical treatment and impede the development of long-term trusting relationships with care providers. Furthermore, availability of translation services is not guaranteed and patients often rely on informal translation by family members or unqualified support workers which can result in miscommunication.
This is particularly problematic in discussions of sensitive subjects like mental health. Rates of mental health problems are disproportionately high among ASRs, but fears of stigmatisation often prevent them from seeking help. Manifestations of mental distress can vary considerably between different cultures; in non-western cultures they are often expressed as physical symptoms such as non-specific pain, so western clinicians must be attentive to this. In addition, many ASRs do not know what services are available to them, others lack trust in western medicine, while some are not aware that conditions like anxiety can be treated.
The UK vs Germany
Uncharacteristically, in the case of healthcare, the UK’s provisions for ASRs are more generous than Germany’s. Nonetheless, the UK system is certainly not without flaws.
UK-wide, ASRs generally have free access to primary, secondary and emergency health care and are exempt from the Immigration Health Surcharge faced by regular migrants. In Scotland and Wales, this does not change if one’s application for asylum is rejected, but in England, continued free access depends on the type of legal protection, if any, that one is subject to as a rejected asylum-seeker. Undocumented migrants, on the other hand, face charges after receiving urgent NHS care and before receiving non-urgent care, at 1.5 times standard costs.
Furthermore, while guidance exists for clinicians on ASRs’ health needs and rights, they report feeling out of their depth when treating these patients, which is exacerbated by low service capacity. GP practices are not legally permitted to reject applications for registration from patients based on race, ethnicity, nationality, citizenship and so on, but some are reluctant to accept ASRs as they are more likely to require translators, for example, which represent additional costs.
By contrast, in Germany, asylum-seekers’ and refugees’ exclusion from healthcare services is explicit and intentional. The Asylum-seekers Benefit Act states that after 15 months of residence in Germany, ASRs gain the same rights to healthcare as the general population, but for the first 15, they have only a basic entitlement to emergency and acute healthcare, and require a health voucher to access non-emergency care.
The Asylum Procedure Acceleration Act of 2015 introduced an electronic health card which reduces restrictions to access, but only in five of sixteen states. Differentiation between categories of asylum-seeker also adds complexity as unaccompanied minors are entitled to total healthcare coverage but those seeking asylum with their families are subject to the Asylum-seekers Benefit Act restrictions. This is reflective of the layers of bureaucracy that are common across the health systems of both countries.
Future directions
Barriers to accessing public healthcare services in general are often upheld by governments due to fears of ‘health tourism’ (where migrants enter a country to take advantage of its health services) or are a result of linguistic and cultural obstacles, poor signposting to services, or financial or logistical difficulties. Policy officials often attempt to justify the exclusion of certain groups from public services by financial constraints. But as with the right to work, granting ASRs full access to healthcare is beneficial not only to them but also to the countries that host them.
This is because it reduces the costs incurred from emergency care by prioritising more preventative treatment. Thus, unless asylum-seekers and refugees are to be excluded from all forms of healthcare, including emergency care – which would be morally disastrous – then it is only logical to ensure they have the same rights to healthcare as natives.
While Germany is comparatively liberal in other areas of asylum policy (for example, the right to work), it needs an expansion of access to health services before its rules can be considered to be mutually beneficial to ASRs and the German state. On the other hand, in the UK, the NHS is immediately available (notwithstanding its infamous waiting times) but not always inclusive of ASRs.
Both countries should therefore take the World Health Organisation’s advice to fully include this group in public health systems. The best time to do this would have been decades ago. But with increasing numbers of asylum-seekers arriving in Germany from Ukraine, and already-settled refugees from elsewhere still facing hugely unequal health outcomes in both countries, the next best time is now.