Mobility and Legal Infrastructure for Ukrainian Refugees

The scale and speed of forced displacement following the Russian invasion on 24 February 2022 has been staggering. At the time of writing, an estimated 7 million have been internally and displaced and more than 5 million have fled Ukraine for another country – making it the largest refugee crisis in European history since the Second World War.1 The vast majority have arrived in neighbouring EU countries. In the course of 2 weeks, Poland alone received more refugees than the European Union combined during the previous peak year of 2015. But hardly any European country has been left unaffected – from Portugal in the South to Finland in the North, emergency measures have been put in place to receive and host new arrivals. A key factor behind the pace and distribution of arrivals has been Ukrainian refugees' unique access to mobility into and through Europe. Across the European Union, the political response to Ukrainian refugees has been almost unequivocally welcoming. Even countries such as Hungary, Poland and Denmark – known for their hard-line stances on asylum and immigration issues – have opened their borders, mobilized public support and adopted special legislation to support refugee reception2 (see the commentary by Pszczółkowska, this issue for on overview of the Polish case). Most significantly, Europe's response to the Ukrainian refugees stands in stark contrast to the policies implemented following the Syrian refugee crisis. Back in 2015, the arrival of 1.3 million asylum seekers led States to close internal Schengen borders, ramp up migration control and introduce broad suites of national measures threatening to undercut both common EU rules and human rights standards in this area (Gammeltoft-Hansen & Feith Tan, 2021). The reactions to the Ukrainian refugee crisis, in that sense, seems to challenge the long-standing “deterrence paradigm” as the overarching framework guiding Western countries' refugee policy since the end of the Cold War3 (Gammeltoft-Hansen & Tan, 2017). As others have argued, the extraordinary response to the Ukrainian crisis more closely resembles the previous Cold War policy paradigm (Stünzi, 2022), during which examples of more generous reception or resettlement policies were often directly tied to geopolitical or ideological agendas (Chimni, 1998). At the same time, however, the unique political circumstances surrounding the Ukrainian invasion seem unlikely to usher in a more general paradigm shift. As Wilde points out, “right now the approach to Ukrainian refugees is operating in tandem with the alternative, far more restrictive approach that operates for other refugees. Thus an extreme two-tier system of refugee protection prevails…” (Wilde, 2022). Underpinning this two-tier system is a more complex set of interactions between different legal frameworks. Within the deterrence paradigm not only national immigration laws have turned more restrictive. Visa rules, aviation law, maritime rescue rules and EU trade and development agreements have each been recalibrated to serve this overarching purpose. This type of “legal entanglement” is well-known in other areas of transnational law and over time they can significantly reshape the constituent legal regimes or give rise to new hybrid legal norms (Gammeltoft-Hansen & Madsen, 2021; Krisch, 2021). In refugee and migration law, a growing body of scholarship have documented these effects in terms of how these adjacent legal areas have gradually developed in a highly discriminatory manner, systematically excluding refugees and irregular migrants from access to what Spijkerboer has aptly termed the “global mobility infrastructure” (Spijkerboer, 2018). Legal entanglements, however, may also work to frustrate or upend the infusion of otherwise well-established political motives across different legal issue areas. The entanglement of migration and human rights law, for example, has provided migrant and refugee advocates with access to an international adjudicatory machinery for migrant and refugee claims – something never originally endowed to these specific regimes (Gammeltoft-Hansen, 2021). Hence, by manoeuvring within the legal topography of border regimes, both migrants themselves and advocacy organizations have managed to carve out bottom-up spaces of resistance to the prevalent deterrence paradigm. But legal entanglements also shape how policy responses to refugee crises are framed at the more structural level. The Venezuelan displacement crisis is a case in point. Since 2015 over 4.5 million Venezuelans have fled their country, the majority to neighbouring countries in the Americas. Yet, the combination of pre-existing free movement agreements and regional refugee law means that, so far, most Latin American and Caribbean countries have maintained a relatively open door policy to Venezuelans, with few entry requirements and different opportunities for regularization. Free movement agreements – pertaining to the Southern Common Market (Mercosur), Andean Community (CAN), Caribbean Community (CARICOM) and the Union of South American Nations (UNASUR) – have each played a major role facilitating entry and onward mobility for Venezuelan nationals.4 Countries like Argentina and Uruguay have similarly relied on MERCOSUR agreements to grant legal status to arriving refugees (Selee & Bolter, 2020). Others, such as Brazil, Mexico and Peru, have relied on the Cartagena Declaration's broad refugee definition to provide temporary status. Combined with bottom-up agency on part of displaced Venzuelans, the entanglement of free movement and asylum law further led to unexpected (and initially unintended) consequences that additionally favour mobility and humanitarian resilience. For example, in the border area between Brazil and Venezuela, refugees effectively pursued mobility in both directions; to the Brazilian side for affordable food, shelter, basic health care, and some limited economic sustenance, and to the Venezuelan side for the provisioning of extended family and community members, as well as for temporary retreat from outbreaks of xenophobic violence or backlash from local authorities in Brazilian border towns (Moulin & Magalhães, 2020). While the asylum system was rudimentary, access to mobility helped foster both refugee resilience and temper political inclinations to revert to a deterrence-oriented paradigm (Byrne et al., 2002). It was not a perfect nor long-lasting response—Brazilian Covid-19 measures introduced new forms of legal entanglements, favouring health and security law to the detriment of both mobility and asylum5 Bertino Moreira, 2020; Hoffmann & Gonçalves, 2020a). Yet, it shows how, even within a global policy paradigm largely detrimental to asylum (Ghezelbash & Feith Tan, 2020), the broader legal topography and the particular ways in which local actors (both state and non-state) navigate within it may play an important role in framing alternative and more humanitarian responses to forced displacement. Is Ukraine case another such example or is it, as many commentators have suggested, a one off and sui generis reaction to the particularities of Russian aggression? We suggest it might be both, for while Ukraine response is unlikely to provide a general blueprint for refugee mobility in the short term, it has, arguably, managed to reconfigure the ordinary hierarchy and mutual relationship between EU asylum law and the Schengen acquis. Like in the Venezuelan case, pre-existing mobility agreements play a key role in this regard and, compared to other refugees, provide Ukrainians with a unique privilege to legally enter and move across EU Member States. Since 2017, a change to the European Union visa regulation has enabled Ukrainian nationals with biometric passports to freely enter and travel across the Schengen area for 90 days. This visa liberalization came on the back of the 2014 EU–Ukraine Association Agreement, enabling easier access to EU labour markets. Both helped frame Ukrainian nationals as “wanted migrants,” and since 2014 millions of residence permits have been issued to Ukrainians across the Member States (Dubenko & Kravchuk, 2021). In practical terms, Ukrainians are thereby exempted from the border procedures ordinarily applied to refugee-producing countries. Nor are they required to apply for asylum immediately on arrival within the Schengen Area but can move to other Member States where they might have personal networks or believe they have better opportunities. In this case, hence, pre-existing mobility rights have overturned the ordinary modus operandi of EU asylum law with its emphasis on first country of arrival, in favour of a more spontaneous, bottom-up approach to responsibility-sharing (Chachko & Linos, 2022). Beyond political support, this may also have been an important factor for the EU's decision to activate the never-before-used 2001 Temporary Protection Directive in early March. Notably, onward mobility rights were further expanded as part of this decision, as the Member States agreed not to apply the directive's in-built option to return beneficiaries in case of secondary movement.6 Political crises, such as the invasion of Ukraine, often prompt not just legal shifts, but also cross-cutting reconfigurations in the way that different legal regimes interact or are entangled (Bergman-Rosamond et al., 2022). Likewise, external shocks, such as a sudden refugee influx or a global pandemic, can prompt short-term legal reconfigurations which may end up having more long-term effects on asylum and immigration policy (Achiume et al., 2020; Hoffmann & Gonçalves, 2020b).The legal infrastructures emerging from these processes are not a hermetic representation of any given political paradigm, but rather the result of dynamic mobilizations by diverse actors – including displaced populations themselves–forming links within this broader legal environment. For Ukrainian refugees this has enabled an unprecedented degree of mobility into and across EU Member States. For the latter, the Ukrainian refugee response vice versa represents a unique opportunity to critically revisit the impact and necessity of current deterrence policies. The opinions expressed in this Commentary are those of the author and do not necessarily reflect the views of the Editors, Editorial Board, International Organization for Migration nor John Wiley & Sons.