Lessons for Reform from the Ukrainian Refugee Crisis

Lessons for Reform from the Ukrainian Refugee Crisis[1]

By Raquel E. Aldana, Martin Luther King Jr. Professor of Law, UC Davis

 

This policy brief documents and contextualizes the legal and humanitarian aid responses to the Ukrainian refugee crisis. Largely through temporary protection mechanisms, Ukrainian refugees have experienced open-door policies and practices that have facilitated their mobility and economic and social integration. There are many important lessons to be learned from the world’s welcoming and generous response to Ukrainian refugees. This policy brief provides four recommendations centered around important reforms to temporary protected measures, continuing permanent resettlement options, adopting fair burden-sharing mechanism, and granting equal treatment to other refugee populations.  

Summary of Recommendations

• Temporary protected status is a helpful mechanism to move quickly to offer protections to emergency refugee situations, but reforms should include potential paths to legalization, family unification, and access to certain social programs.
• Permanent refugee resettlement should continue to be part of the solution to refugees.
• Nations also have to commit to strengthen mechanisms of more equitable burden sharing when massive, forced displacement occurs rather than expect a handful of nations to host the overwhelming numbers of refugees.
• We have to reckon with and end discriminatory responses to refugees.

The most recent United Nations High Commissioner for Refugees (UNHCR) data on the Ukrainian emergency, dated May 11, 2022, estimates that over 6 million Ukrainians have fled to neighboring countries since February 24 of this year, the fateful day Russian President Vladimir Putin invaded Ukraine. Another 7.7 million Ukrainians are internally displaced. With these numbers, the UNHCR has declared Ukraine a level 3 emergency, the highest level available. Within ten days of the invasion, UNHCR’s High Commissioner Filippo Grandi, in a tweet, labeled the forced displacement of Ukrainians the fastest-growing refugee crisis faced by Europe since the Second World War. Then in April, Assistant High Commissioner Gillian Triggs described the Ukrainian refugee crisis a protection crisis for women and children who account for 90 percent of everyone fleeing. The scale and scope of human suffering flowing from this crisis cannot be overstated. Already, UNHCR is on high alert to counter human trafficking given the high risks of exploitability created by the terrible vulnerabilities affecting Ukrainians fleeing their home.

The Ukrainian refugee crisis is not the only crisis the UNHCR has labeled an emergency under a 2017 policy (updated and revised in 2019) that allows the UNHCR to mobilize human, material, and financial resources quickly in response to the most dire refugee crises. As of May 2022, UNHCR lists ten other country or regional refugee emergencies: Afghanistan, Ethiopia Tigray, DR Congo, Iraq, Nigeria, Rohingya, Sahel, South Sudan, Syria and Yemen; as well, the UNHCR highlights four other situations of particular humanitarian concerns: Burundi, Central African Republic, Central America, and Venezuela. Comparatively, Ukraine has quickly become the second largest refugee crisis next only to Syria (6.6 million), with Venezuela (6 million), Afghanistan (5.7 million) and Palestine (5 million) occupying the next three spots respectively. This data is shifting quickly, driven in great part by the Ukrainian crisis, which is itself occurring in a context in which the world already finds itself overwhelmed by the scale and scope of human forced displacement.

The UNHCR was created in 1950 during the aftermath of the Second World War to help millions of Europeans who had fled or lost their homes. A year later, nations adopted the 1951 Refugee Convention and subsequently its 1967 Protocol to serve as the guiding principles and foundations for the important work of the UNHCR. These treaties embraced the core principle of non-refoulment, an obligation to aid and not return refugees to a country where they face serious threats to their life or freedom. As well, State Parties to the treaties committed to resettle refugees and integrate them as full members of society. More than seventy years since its mandate, however, data reveals that UNHCR’s work has had to focus on providing humanitarian aid to displaced communities stuck in limbo, sometimes for decades, in a handful of host nations forced by geography to shoulder an uneven burden of refugees who can neither return home nor find a permanent home. In 2021, for example, 86% of all refugees were living in a developing country, 73% of which bordered the country from which they fled. The top four major host countries were Turkey (3.7 million), Colombia (1.7 million), Pakistan (1.4 million), and Uganda (1.4 million). Standing alone as a Western, non-neighboring top fifth host country of 1.2 million refugees is Germany.

Moreover, every year, fewer than 1 percent of all refugees under UNHCR’s mandate are permanently resettled. According to UNHCR data, since 2013 to date, only 1,650,225 refugees have been permanently resettled. The year with the highest number of resettled refugees during this period-- a grand total of 163, 206-- was 2016. In contrast, since 2012, nearly 3.4 million refugees have been returned to the countries they fled. Even so, these numbers pale in comparison to the need. Overall, by the end of 2020, the UNHCR already reported 82.4 million forcibly displaced persons as a result of persecution, conflict, violence, human rights violations or events seriously disturbing public order. Of these, 20.7 million refugees fall within the scope of UNHCR’s mandate[2] while an additional 5.7l million Palestinian refugees are under the mandate of the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA). Another 4.1 million are asylum seekers who seek protections directly at a nation’s border.[3]  It is unsurprising, then, that 15.6 million refugees (76%) were in a protracted situation at the end of 2020, meaning they formed part of more than 25,000 or more refugees from the same nationality who have been in exile for at least five consecutive years in a given host country.

In terms of asylum seekers, refugees seeking protections directly from the host nation at the border or inside its territory, between 2015 and 2021, 2,814,555 applications have been granted while 3,969,868 have been rejected. The asylum data, however, masks the increasing number of asylum seekers who are never allowed to seek asylum based on practices that have substantially limited access to seek asylum. These practices have included interdicting asylum seekers while in transit or outsourcing to third nations even those who arrive at a nation’s borders without ever being allowed to petition for asylum. Interdiction practices at the Mediterranean Sea, for example, date back to as early as 1997. While these have not stopped the flows of millions of refugees, tens of thousands have lost their lives along the treacherous journey. The United States Title 42 policy enacted in March 2020 in response to COVID-19 resulted in the expulsion of over 2 million asylum seekers arriving at the border. As well, the so-called outsourcing agreements are allowing developed nations to outsource millions of asylum seekers seeking refuge at their doorstep. Just this week, for example, Britain announced its plan to outsource nearly all of its refugees to Rwanda, permanently. 

 

The World’s Response to the Ukrainian Crisis

Ukrainian forced displacement across borders has followed similar patterns as other groups insofar as a handful of neighboring nations are hosting the overwhelming majority of refugees. As of May 15, 2022, Poland, for example, is hosting over half of all displaced Ukrainians at more than 3.3 million refugees. Other important hosts are Romania (901,696), Russia (800,104), Hungary (594,664), Republic of Moldova (461,742), and Slovakia (415,402). Not unlike other displaced refugees, the conditions of their stay in these countries are precarious. In Poland, for example, many refugees without family or friends in the country are staying in temporary accommodation facilities largely concentrated in large cities such Warsaw, Kraków or Wrocław. However, Poland moved quickly to facilitate better conditions for Ukrainians in the country, including processing identification to allow Ukrainians to open bank accounts, granting access to Ukrainians to the labor market, and allowing Ukrainian children to enroll in public schools. Then in mid-March, Poland adopted legislation to permit Ukrainians to live and work in Poland for 18-months, subject to renewal. Yet the large cities are already at capacity and Poland has been relocating Ukranians to other parts of the country or to other European Union (EU) Countries since early March. Poland’s ability to send Ukrainians to other EU countries was made possible by the European Union’s expeditious decision in early March to activate the EU’s Temporary Protection Directive and allow Ukranian refugees to enter any of its 27 EU nations and stay for at least 1 year, subject to renewal for up to three years, with full access to the labor market and social benefits such as education and health. By late April, approximately 380,000 Ukranian refugees had arrived in Germany, another 100,000 in Italy and thousands more in Spain, Lithuania, Bulgaria, the Netherlands, and Estonia. These numbers are likely to rise into the millions in the next few months.

Despite the enormous challenges facing Ukrainian refugees, Poland’s open-door response and that of the European Union to Ukrainians has been exceptional, not just for these nations but also for much of the rest of the world. Poland, for example, was criticized in the past for shutting its doors to Chechen refugees when Russia invaded Chechnya. Poland’s decision in 2015 to accept merely 6,800 refugees fleeing Syria and Eritrea also deeply divided the country with very strong vocal opposition. Also, in sharp contrast to its response to Ukrainian refugees, the EU refused to extend similar temporary protections to refugees from other parts of the world, including to Syrians when millions were reaching EU shores and thousands were drowning along the Mediterranean attempting the journey. Of course, this contrasting welcoming reception to Ukrainians could change as time passes and the burdens of refugees weigh heavily, especially on nations like Poland. As early as March, when Ukrainian refugees were fewer than 400,000, the limitations of the government response was leaving Polish civil society scrambling while Ukrainians suffered in makeshift shelters. Even with increased global aid and greater governmental response, the situation for Ukrainians in Poland remains challenging in May with some opting to leave and even return to Ukraine.

Another positive development in the response to Ukrainians has been the swift response by nations beyond Europe to host Ukrainian refugees. These responses have largely included comparable (although not identical) offers for temporary refuge as those offered by the EU to Ukrainians who are already present in the host country, have already fled to neighboring third countries overburdened by the Ukrainian refugee flows, and/or who are still trying to flee the territory. In the United States, for example, President Biden extended Temporary Protected Status (TPS) to Ukrainians already present in the United States as of March 1, 2022, subsequently expanding those protections, in an unusual move, to April 11, 2022 to accommodate approximate 10,000 new Ukrainian arrivals at the U.S.-Mexico border. TPS protections will likely extend to approximately 60,000 Ukrainians which protects Ukrainians from deportation for 18 months, subject to extension, and grants work authorization to those eligible to work. TPS will not only improve Ukrainian access to better jobs but improve social integration of the entire family unit across states in the U.S. as shown by studies documenting TPS’s effects on other migrant communities. However, in contrast to the EU, TPS in the United States does not extend much public assistance beyond access to the labor market and K-12 education for children. The U.S. also committed to extend humanitarian parole to an additional 100,000 Ukrainians in a program comparable to what had been promised to the approximately 75,000 Afghans airlifted out of the country following U.S. withdrawal. The U.S. adjudication of parole to Afghan nationals, however, has been mired with complexity, significant delays and denials. Critics fear Ukrainians will suffer the same fate. On April 25, 2022, the Biden Administration launched an online platform, “Uniting for Ukraine.”  The U.S. government has said Uniting for Ukraine is supposed to provide a fast and streamlined process, although it retains strict requirements that include vetting for national security. It is still too early to tell whether Uniting for Ukraine will improve on the process that has applied to Afghan refugees. Canada’s promises to Ukrainians have been even more generous with Canada’s immigration minister, Sean Fraser, promising to waive most of its visa requirements for an “unlimited number” of Ukrainians to live, work and study in Canada for up to three years. Recent media reports suggest that Canada, despite its good intentions, is experiencing delays in the processing of these benefits.

Another hopeful response has been the aid that has poured into funding efforts by UNHCR or nations like Poland to help them address the Ukrainian refugee crisis. According to UNHCR, for example, by April 2022, it has already collected 1.29 billion in donations for Ukrainians, although it anticipates needing more than 3 billion. UNHCR also highlights that humanitarian partners have rapidly increased the scale and scope of operations both in Ukraine and in neighboring countries such that more than 3.4 million Ukrainian refugees have been reached. On May 19, the U.S. Senate voted to approve $40 billion in aid to Ukraine, 954 million of which would go toward providing humanitarian aid to refugees. Two days later, President Biden signed the billing, bringing up the total aid to Ukraine since the war began to $54 billion. Of the $54 billion in total spending by the United States, $31.4 billion can be considered traditional foreign aid. This is higher than any annual amount given by the U.S. to a country in the last decade, according to the U.S. Agency for International Development data. In fact, it is roughly two times the amount given in 2011 to Afghanistan, the largest U.S. foreign aid recipient until now. For its part, the EU has made 143 million Euros available to provide humanitarian aid projects to helps civilians affected by the war in Ukraine. Moreover, to assist EU nations in the implementation of the temporary protections to Ukraine, the EU estimates it will make available around 17 billion Euros from CARE, which stands for Cohesion’s Actions for Refugees in Europe.

Moving Forward: Policy Lessons 

Even with its challenges, the world’s empathic and swift response to Ukrainian refugees is notable and praiseworthy. Sadly, an end to the Ukrainian conflict seems elusive still even as at least some Ukrainian refuges in Poland are already returning home. The overwhelming majority of refugees, however, are not yet making plans to go home while others may never do so. Regardless of how many and how quickly Ukrainians return home, their labor and social integration in the host country will be critical both to the success of the Ukrainian refugees and their families but also to the arduous and lengthy task of nation building post-war.

Economists are already making the case that nations should be framing proactive policies to capitalize on the potential upside benefits likely to flow from the integration of Ukrainian refugees based on historical examples of nations moving quickly to integrate refugees (e.g., Vietnamese in the US; Ukrainians in Israel; Jews in Europe and the US post WWII). Similar data is available even when based on temporary protection programs that have improved not only the recipients’ labor integration but the overall economic well-being of sending nations who benefit greatly from increased remittances. Other studies point to the positive effect of returning refugees to nations destroyed by wars, such as the Former Yugoslavia, when they returned empowered to transfer knowledge and resources back into rebuilding efforts. In contrast, examples of the ill-effects of bad social integration practices of refugees also abound, such as what has occurred to Syrian refugees in Turkey and other parts of the European Union.

With this in mind, the recommendations below intend to build on what is already a largely positive response to Ukrainian refugees. The focus is largely on improving on existing initiatives in response to both humanitarian and economic concerns. Importantly, the recommendations below also reflect on how the Ukrainian refugee response could serve as a model to improve the plight of other refugee populations. The celebration of global compassion toward Ukrainians should not be tainted by the jarring disparate plight of other refugee populations whose human suffering has been rendered invisible or irrelevant by our indifference or worse yet, our inhumane efforts to rid ourselves of their presence. As such, the Ukrainian refugee crisis must be an opportunity for a race to the top policy reforms regarding the treatment of refugees more broadly.

Temporary protected status is a helpful mechanism to move quickly to offer protections to emergency refugee situations, but reforms should include potential paths to legalization, family unification, and access to certain social programs. Several considerations make reliance on temporary protections as a response to emergency refugee populations sound. One factor is the impracticality of adjudicating in a timely manner who among the millions of displaced Ukrainians actually qualify for the narrow definition under the Refugee Convention and its Protocol. Indeed, given that most Ukrainians who have fled have done so in response to generalized rather than targeted violence, only some would even satisfy the definition. This should not mean, however, that those who are escaping generalized violence should be left unprotected. Rather, temporary protective measures should work parallel to and in addition to refugee protections to respond promptly to the needs of mass displaced peoples facing emergency situations.

Another reason for resorting to temporary protected status measures is the unfairness of prioritizing new waves of refugees in a context of a backlogged system with few opportunities for permanent resettlement. It would prove impossible and arbitrary to prioritize Ukrainian refugees, even if based on strong geopolitical reasons, when so many refugees from other countries have been waiting for their turn for so long. Third, many if not most Ukrainian refugees are likely eager to return home as soon as it is safe to do so. Some will try to do so immediately, while others may wait a few years to amass enough resources that can allow them to rebuild the lives they were forced to leave behind. Nations will want to encourage return especially given the promise that returned refugees could be critical to the enormous challenge of rebuilding nation after a horrendous war. Finally, the opportunity for labor market integration that temporary protected status offers, at least for periods that range from 18 months to two years, will greatly facilitate the economic and social integration of Ukrainians with the types of benefits already discussed.

Not all temporary protected status programs, however, are the same and the differences will matter to the success of Ukrainian nationals. The United States TPS legislation, in particular, presents a number of unique challenges that call for reform. One of these important needed reforms is lifting the restriction that TPS protections can only be extended to persons who are already in the country when the designation for protection is made. This substantially limited the U.S. ability to extend protections to fewer than 50,000 Ukrainians who could benefit. In fact, to extend protections, in an uncommon move, the Biden administration changed the TPS designation date to a month later to grant the status to an additional 10,000 Ukrainians who had entered through the U.S.-Mexico border post the original designation, raising the number of possible Ukrainians to benefit from TPS to around 56,000. When the Biden administration committed to offer refuge to another 100,000 Ukrainians, he could not resort to TPS status due to this restriction. Instead, the administration was forced to turn to individualized humanitarian parole which had already proved inadequate to address the humanitarian refugee crisis that ensued when the U.S. pulled out of Afghanistan.  Another factor that should be reformed in the U.S. TPS system is that, in contrast to the EU model, it does not come with any allocation of public funds to assist refugees with job placement, housing, food, or other types of urgent social services. This has been especially problematic for newcomers who are being paroled into the U.S. and who lack basic services that could allow them to seize on their work authorization quickly and integrate into the U.S. economy. Studies show that the availability of key public benefits and social services has been critical to refugee integration. Finally, all temporary protected status programs lack two crucial components that should be considered. First, currently these programs do not include family sponsorship options that could encourage family unity. Yet, we know that family unification is crucial to the social integration of refugees. Second, these programs lack an easy path to permanent legalization, which could be necessary the longer temporary protections extend. In the U.S., for example, TPS status for some groups has extended for decades; yet the lack of a path to permanent legalization for these communities has had detrimental effects on communities who cannot fully integrate into U.S. society despite significant stakes in the country. In this regard, Colombia’s grant to temporary protections to Venezuelans offer an interesting model.  Colombia’s temporary protected status is for ten years with a path to legalization to follow.    

Permanent refugee resettlement should continue to be part of the solution to refugees. Extending temporary protections to refugees should not mean giving up on the permanent resettlement of some, especially those with little prospects of return and who find themselves in precarious situations that aggravate their vulnerability. This will require that more nations commit to permanently resettle refugees and that the handful of nations that already do commit increase their numbers. 

Given the enormous unmet needs of refugees, the UNHCR has prioritized resettlement of refugees based on the needs of overburdened host nations facing forced displacements in the regions with the most urgent humanitarian crisis. Since 2019, the Priority Situations Core Group (PSCG), a multilateral forum on resettlement and complementary pathways for the admission of refugees, help define UNHCR’s resettlement priorities to maximize the strategic impact of resettlement programs in refugee-hosting nations. Within this framework, the UNHCR has estimated that 2022 global resettlement needs will be over 1.47 million refugees, a slight increase from 2021 at 1.45 million refugees. For the sixth year in a row, at just over 610,000 or 42%, Syrian refugees represent the population with the highest rate of resettlement needs. The other four nations in the top five list of priorities are the Democratic Republic of the Congo (10%), South Sudan (9%), Afghanistan (7%) and Eritrea (6%). Regionally, Africa remains the area with the highest need for resettlement (593,598) with over 33 nations in the continent with significant needs for protection from several ongoing wars and other disasters. Given the high presence of Syrian refugees in Turkey, Europe is the region with the second highest need for resettlement, a figure that will only increase given the Ukrainian refugee crisis (401,740). Syrian, Iraqi and Sudanese refugees place the Middle East and North Africa (MENA) as the region with the third largest need for resettlement (315,778). Afghan refugees, largely concentrated in Iran, make up the largest population of refugees in need to resettlement and place Asia and the Pacific region as the fourth region with the highest need for resettlement. Finally, the Venezuelan refugee crisis in the Americas have significantly increased the region’s need for resettlement at 55,640 individuals.

Unfortunately, not even these carefully vetted and prioritized refugee numbers have moved nations to increase their commitment to refugees, forcing UNHCR to further prioritize refugee allocations based on refugee vulnerabilities.[4]  During the last five years, resettlement numbers have dropped significantly from already low numbers. In 2018, for example, UNHCR submitted a total of 81,337 refugee applications and 55,680 were able to depart to their country of resettlement. By 2021, these number had fallen 63,190 submitted applications and only 39,266 having departed to their country of resettlement. UNHCR concedes that the pandemic affected these numbers but the decline predated the pandemic and was also responding to strong anti-immigrant nationalistic movements in response to increased waves of forced displacement and xenophobia. As well, since 2003, a grand total of only 46 nations have committed to resettle refugees and many resettle fewer than 100 or only a few hundred. Since 2015 to 2021, only the United States resettled more than 200,000 refugees. The other top four countries – Canada, the United Kingdom, Australia, Sweden and Germany respectively, have all resettled fewer than 100,000, ranging from fewer than 20,000 to a little bit over 65,000. Countries must increase and cannot abandon their resolve to offer permanent resettlement to refugees not only based on strong humanitarian considerations but also because doing so has the potential to improve the chances that the sending nations will benefit economically and potentially politically from the stability of their nationals abroad. Most immediately with regard to Ukrainians, the US must reconsider its current allocation of permanent refugee resettlement for the European region, which is currently capped at 10,000.

Nations also have to commit to strengthen mechanisms of more equitable burden sharing when massive, forced displacement occurs rather than expect a handful of nations to host the overwhelming numbers of refugees.  The combination of open-door policies with the grant to temporary protections or humanitarian parole to Ukrainians has tremendously facilitated their mobility across Europe and even across continents. In turn, this flexibility facilitates Ukrainian social and economic integration by allowing them to unify with family or to move to places based on labor opportunities. At the same time, their geographic dispersal gives nations like Poland respite from the concentration of Ukrainians in their territory. Of course, the concentration of Ukrainian refugees in a handful of nations continues to be a challenge and Ukrainian refugees will need assistance to increase their mobility across regions. And this is happening. European nations, for example, are offering Ukrainians free trains to permit them to relocate to other parts of Europe.  Sadly, this approach has not occurred with other refugee communities. To the contrary, policies have been oriented to forcibly concentrate refugees in a few host nations, such as been the case of Syrian refugees who have been sent to Turkey even when they have successfully reached the shores of other European nations following a treacherous journey. 

We have to reckon with and end discriminatory responses to refugees. The enormous gains in terms of nations’ positive responses to Ukrainians refugees are inevitably shadowed by the sharp contrast with how nearly all other refugees, but especially those from non-European, Non-White countries have been treated. Indeed, even the jarring different treatment given to Africans and other Non-Europeans stuck in Ukraine as students when they tried to leave has highlighted the devastating ways in which rationing empathy and doling out legal protections have been racialized.  In this policy brief, sadly, it was too easy to find opposite stories about refugees of color who were denied the exact same protections now being given to Ukrainian refugees. Consider, for example, the ways that Ukranians who arrived at the U.S.-Mexico border were treated. Unlike millions of other refugees, Ukrainians who arrived at the U.S.-Mexico were exempted from Title 42, and they were not subject to the “Remain in Mexico” policies reserved to asylum seekers from the Americas. The terrible human consequences of Title 42 and Remain in Mexico have been well documented, and even if one accepts the strong geopolitical reasons motivating support for Ukraine, it does not justify, legally or morally, our turning away and sending other asylum seekers at our border to danger or even death. As we speak, the U.S. is grappling with whether to end Title 42. The reasons for doing so are compelling, even when ending Title 42 will call for greater humanity and resources from us. How can the lessons we have learned from our humanity toward Ukrainians during this crisis help inform our response to other refugees?