To be or not to be a refugee?

The Ukraine refugee crisis has set up a number of precedents, not merely in terms of the fastest growing number of refugees who sought shelter in other countries of Europe since World War II, but also in terms of legal and practical issues concerning their status, their rights and obligations and their reception by the host communities.

First of all, the refugees are by definition the responsibility of the host country, the country whose territory they are situated in at a given moment. The response to the incoming flow of humanity from Ukraine has been enthusiastic, warm and commendable, with unprecedented volunteerism in the local response and addressing related risks coming from initial lack of regulation and/or vetting [e.g. online platforms privately offering accommodation, transportation, etc.]. As for arrivals from Ukraine, due to their “Europeanness” and the fact that they are hoping/considering/seeing their exile as temporary, they have in many reported instances refused to be called refugees.

The Ukrainian government, on its part, has been making every effort to retain extra-territorial jurisdiction over their refugees abroad, where a number of further precedents arose. If wrongly implemented, such processes will lead more in the direction of offshore migration control than in the direction of international cooperation. The efforts at extra-territorial prerogative place both the host governments and international protection agents [e.g. the UNHCR] in a difficult position. They must be mindful of the risk of a given country of origin’s authorities becoming persecutors, rather than protectors, which, sadly, can happen with any country.

The first precedent, of course, is the EU’s temporary protection (TP), which has been in existence as a legal instrument of EU Law since 2001 but was first operationalised for the Ukraine refugee emergency. Countries applying temporary protection are still struggling with the challenges of its implementation, in-country and cross-border, with its budgeting, and its interoperability with the traditional system of asylum, etc.

As a precedent, TP has given rise to a wave of discontent by other groups of refugees, most-notably of non-European origin, who never did and most likely never will experience the same treatment and the same possibilities in terms of accessing rights and assistance, employment and/or ability to move around the EU and seek protection in a preferred destination.

Other precedents arose from the Ukrainian government’s desire to know exactly where its refugees are, their numbers and their profile, and perhaps even more detail – notwithstanding the fact that, for example, the conscientious objectors should have a chance to apply for asylum in the host-country without it being known to the Ukrainian government, regardless of that nation’s righteous fight against foreign occupation and the martial law still in power in Ukraine.

When it comes to unaccompanied and separated children on the territory of neighbouring and second-line countries, the Ukrainian government already has or is in the process of trying to bring about bilateral agreements with the host countries on the return of their children, even before the lifting of martial law in Ukraine, which could theoretically be alright if the returns were to be preceded by a bona fide and participatory best interest determination of the child, and if they were voluntary and sustainable returns.

At this point in time, it is difficult to see how a return to a [still] war-torn country can be sustainable, beneficial, informed and/or voluntary for unaccompanied children. Even upon the lifting of the martial law in Ukraine and/or cessation of hostilities, all return to Ukraine must be voluntary.

The principle of voluntarity should also apply to the schooling of Ukrainian refugee children abroad. The good systems of online schooling devised by the Ukrainian authorities during Covid-19 lockdowns remained in use for the purpose of educating Ukrainian refugee children abroad in their national language and curriculum. In the long term, however, sole reliance on the Ukrainian curriculum may significantly impede a meaningful integration of these children into their host environment.

It is important to note here that, unlike in “classical” refugee situations, there is no obligation on the part of the host country to enrol refugee children in national schools under the TP regime. Both host authorities and refugee parents therefore lack motivation and a sense of urgency to enrol their children in national schools in host countries come September. Inclusion in the local community, and particularly inclusion in the local schools, would make for a more meaningful, more sustainable experience for the Ukrainian refugee children, and is one of the tenets of international protection.

The desire by Ukraine to preserve the culture and the heritage of its refugees is by no means a lonely endeavour, but it may best be accomplished not by cocooning of children, but by maintaining parallel systems of schooling – under the Ukrainian curriculum and under the host country curriculum – akin to educational practices kept up by so many other ethnic communities in the diaspora throughout the world. However, Ukraine is likely to keep encouraging the refugee families abroad to continue educating their children online, for the upcoming school year.

Many of the Ukrainian refugees and certainly the government of Ukraine tend to emphasize that the refugees’ stay outside their homeland is merely temporary, which is a valid point, but what happens if the stay ends up lasting longer than expected? It seems that the Ukrainian government is sending the signal to host governments that their refugees should be temporarily hosted and not fully integrated, for fear of losing their Ukrainian identity, emphasizing support and maybe inclusion but not integration.

All solidarity, sympathy and xenophobia aside, according to the letter of the law, Ukrainian refugees deserve more space to breathe and decide for themselves and other bona fide refugees deserve opportunities more akin to those presented to people fleeing from Ukraine, for the EU to collectively make a more meaningful step forward for the European Commission’s New Pact on Migration and Asylum.

By Vera O’Donnell
Dublin, 23 Aug 2022

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