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Is applying the EU Temporary Protection Directive (TPD) for Palestinian Refugees possible?

Ms Dimitra Fragkou

Dimitra Fragkou is a PhD Candidate in Public International Law at NOVA University Lisbon in Portugal and a Fellow of the Portuguese Foundation for Science and Technology. Her research explores the intersection of human rights, atrocities, and refugee law. Currently, she is attending the Programme for Studies on Human Rights in Context (Ghent University, Belgium) under the supervision of Prof Dr Yves Haeck.

The legal issues arising from the current war in Gaza are undeniably highly complex. That is because the conflict itself is unprecedented. The Israeli occupation of Palestine is the longest in modern history, with the vast majority of the population having no other option than living a life of constant human rights violations and military harassment. The Occupied Palestinian Territories are officially recognised as a non-member observer state, but - as the words say - with a territory that is occupied.

With the legitimacy of the Palestinians’ cause for an independent state being intertemporally and globally recognised, Palestinian refugees always expect to return to a free homeland and take control of their lands. Instead, they depend on the increasingly limited humanitarian assistance of the United Nations Relief and Works Agency (UNRWA), the agency established by the UN to deal with the situation in Palestine since 1949.

UNRWA was established prior to the adoption of the 1951 Refugee Convention. Consequently, refugees officially registered with UNRWA fall outside the scope of the Refugee Convention (art. 1D). The rationale behind distinguishing Palestinian refugees from others is that the Refugee Convention’s initial mandate was to deal with the refugees of post-World War II Europe and that, in contrast to the Refugee Convention, which safeguards the right to not be ‘refouled’ to the country of origin (principle of non-refoulement), Palestinian refugees expressly demand the opposite— the right to return. With a view that the occupation will eventually cease, UNRWA’s mandate is temporary and subject to renewal until the situation of Palestinian refugees is resolved. Until then, Palestinian refugees should be generally considered stateless.

Occasionally, however, certain EU Member States have denied protection for Palestinian refugees outside UNRWA’s base of operations, claiming that the Qualification Directive, which transposes the obligations stemming from the Refugee Convention in the EU, is inapplicable. Later on, though, the Court of Justice of the European Union clarified that for Palestinians forced to flee UNRWA’s area of operations due to serious risk to their personal safety, the protection clauses of the Refugee Convention should step in. The last decision has led, at least in terms of applying the Qualification Directive, to more uniform practice across the EU, but difficulties in interpreting whether UNRWA’s protection is inadequate remain. This interpretation, however, did not create safe, legal pathways for Palestinians to access EU asylum procedures in the first place. During the Syrian conflict, for example, Palestinians living in the refugee camps on Syrian territory had to follow the smuggling route to flee the conflict, even if their refugee status could be easily verified, due to the sophisticated UNRWA registration system.

In our previous work with Veronica Corcodel, we argued, juxtaposing the Russo-Ukrainian conflict with the 2015-2016 ‘crisis’, that behind the differential treatment of Ukrainians vs Others lies the racialised figure of the irregular migrant, hidden within a pretext of ‘neutral legal categories’, one such legal category being the term of ‘mass influx’. Tendayi Achiume sees ‘nonwhiteness, including religious racialisation of Muslims or people perceived as Muslim, [to be] conflated with presumed illegality or outsider status.’ This outsider status, however, is historically produced through geopolitical choices that perpetuate colonial schemes of mobility

Our approach was premised on the contradiction between the swift EU response to the protection needs of displaced Ukrainians after the Russian full-scale invasion in February 2022 and the response to previous crises. To facilitate the protection of the millions of Ukrainians who sought refuge in their territory, the EU Member States moved forward with a widely welcomed initiative by unanimously agreeing to activate the long-forgotten Temporary Protection Directive (TPD). The TPD provides a more protection-oriented regime than the standard ‘recast’ Directives that still apply to everyone else.

The main feature of the TPD is that it grants temporary residence permits on a group-based legal status without requiring the displaced to wait in camps or other closed facilities for lengthy individualised protection assessments. Beneficiaries gain residence and socio-economic rights, including access to the labour market, social welfare, healthcare, education, and vocational training. On top of that, the Council Implementing Decision of the TPD has allowed Ukrainians to move freely within the EU until they settle in the Member State of their choice, and thus, it does not force them to sustain detention or resort to smuggling networks. Of course, applying the TPD was not without problems; but despite being temporary and imperfect, the TPD shows that a protective and welcoming regime is possible.

The contrast of the EU policy responses to refugees from Ukraine vs everyone else became so prominent that it led to accusations that the EU is adopting ‘double standards’. ‘Double standards’ was the phrase academics and human rights activists used not only to criticise the retrieval of the TPD to protect Ukrainian refugees in contrast to the much stricter recast Directives, but also to denounce the racist narrative prominent in the Western media at the time, which collectively characterised Ukrainians as ‘white, blonde, and Christian like us’ demarcating an ‘unusual type of refugee’ in contrast to the usual, uncivilised refugees, who flee the countries of the Global South.’

When confronted, the EU institutions’ representatives were careful enough not to adopt the narratives of the press. Instead, they boldly objected to their allegedly differential treatment between refugee groups. They invoked two seemingly neutral reasons – the Ukrainians’ scale of displacement, described as a ‘mass influx’ which could paralyse the capacity of Member States’ asylum systems, and Ukrainians not resorting to smuggling networks for their transfer.

However, ‘mass influx’ was understood differently in the ‘recast Directives’ regime, which is still applicable; instead of optimising policies towards better and faster protection, it was used to enforce deterrence policies and foresaw robust border controls, selection and redistribution mechanisms which led to extensive human rights violations. For example, the deplorable living conditions in the Greek’ hotspots’ after enforcing the EU-Turkey Agreement in 2016 were but one of the consequences of this deterrence-oriented approach. Extensive push-backs and the lack of legal pathways, which often lead to deadly shipwrecks across Mediterranean shores, are some more. It is reasonable to assume that disasters like these would have been significantly avoided if a TPD-based response, as in the case of Ukraine, had been adopted.

Some argue that the TPD was not activated in the context of the 2015 – 2016 ‘crisis’ due to the additional requirement of homogeneity for groups falling under its scope. According to Art. 2(d) of the Directive, ‘mass influx’ refers to ‘[…]a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme’. People fleeing Ukraine are indeed predominantly people fleeing the conflict, mainly women and children, while the percentage of non-Ukrainians remains small and consists of people who also flee the conflict; therefore, they cannot be considered part of a mixed migratory population.

The ‘recast’ Directives, on the other hand, do not refer to ‘mass influx’ except for distinguishing their scope from the scope of the TPD. The flows in the Mediterranean were considered ‘mixed’, consisting of migratory populations, which included refugees, asylum seekers, economic migrants and other types of migrants. In this light, the activation of the TPD was not considered advisable. Provisions of the Asylum Procedures Directive that foresee fast-track procedures were instead preferred to deal with groups designated by the UNHCR as prima facie beneficiaries of international protection.

Prima facie refugee recognition, namely recognition on a group basis, in the absence of evidence to the contrary, should be applicable when ‘entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees.’ Irrespective of common characteristics, prima facie recognition is still not the same as the TPD regime applied in the Ukrainian crisis since it does not guarantee access to the prospective host state’s territory.

 As such, Syrians, for example, have been exempted from extensive refugee status determination (RSD) interviews or had access to accelerated (or ‘fast-track’) asylum procedures if they owned a Syrian passport to verify their nationality. However, by being considered part of ‘mixed migration flows’, they could not access this status without being subjected to deterrence policies and facing the risks that go hand in hand with smuggling.

Upon reference to EU Commission documents, the deterrence goals of the EU asylum policy for everyone else except Ukrainians can be easily identified. Even after recognising the 2015-2016 influx as ‘unprecedented’ and mainly comprised of Syrians - thereby admitting the existence of an explicitly designated group - the Commission enumerates as proving a successful outcome of its operations the reduction of flows, the externalisation of protection through cooperation schemes with third countries and countries of origin and the strengthening of border protection. As such, we should admit that Syrians would not have to follow the smuggling route provided that alternative legal pathways were offered to them. To return to our argument with Veronica, the ‘irregular migrant’ is deliberately created through migration management policies and is depicted afterwards as a risk to justify those policies.

The case of Palestinians offers an excellent opportunity for the EU to debunk accusations of the EU applying racist ‘double standards’. There are a number of factors that could facilitate an approach as such. First of all, the experience of actually applying the TPD in the Ukrainian crisis has created valuable know-how on how to tackle the practical impediments of its implementation. The fact that, as already explained, a significant percentage of Palestinian refugees is registered with UNRWA and, therefore, easily distinguishable from other migrants and asylum-seekers – can provide a significant advantage in contrast to previous crises. Suppose the EU wanted to offer protection equivalent to the TPD; that would not be a practically unattainable task.

At the moment, Palestinians still have the same fate as everyone else who falls under the regular regime, with the only exception being that some states consider them stateless and, thus, non-returnable and do not subject them to administrative detention for return, even if the practice is not uniform or consistent. Nevertheless, the robust border controls, the push-backs and the Dublin Regulation are, for all that matters, still fully enforced upon them, and no other pathway is currently offered for their access to protection in the EU except for resorting to smuggling networks.

Following the CJEU’s judgement in El Kott, there is no doubt that Palestinians who will flee Gaza now are, by default, unwillingly availed of UNRWA protection and, therefore, prima facie refugees.

Since the Israeli attacks on the territory of Gaza continue, so continues the total blockade of the region, meaning that since the people of Gaza face this inescapable devastating humanitarian crisis, the EU has to act fast to find alternative solutions; if not by activating the TPD itself, at least to consider other possible pathways for resettlement before ‘mass influx’ actually occurs, instead of externalising the problem.

Unfortunately, the EU’s initiatives so far indicate a deterrence-oriented approach, like the one for Syria in 2015-2016. In line with the precedent of the notorious EU-Turkey Agreement, the European Commissioner Ursula Von der Leyen is pushing for a deal with Egypt offering financial aid in exchange for keeping Gazan refugees from accessing Europe. That is, at the moment, without considering solutions, at least for the reunification of Palestinians already residing in Europe with their families who are trapped in the Gaza catastrophe.

The risk of irregular migration seems to continue to be the primary concern for most EU Member State officials. Despite contentions for the danger of ‘terrorists infiltrating refugee flows’, calls for an ‘EU immigration crackdown to stop terrorism’ and the reiteration of vigorous border controls, anti-terrorism panic has not yet erupted in the EU public statements. It is possible that the UN Secretary-General Antonio Guterres’s call for peace on Twitter and before the Security Council, stating that ‘the horrendous attacks [of Hamas] cannot justify the collective punishment of the Palestinian people’, despite sparking Israeli backlash, has also set up a standard of common sense for other high-level officials. Hopefully, the recent terrorist attacks in Europe will not undermine any efforts to protect innocent Palestinian civilians. Hopefully, the situation will not worsen further by moving from the narrative of the ‘risky irregular migrant’ to that of the ‘roving terrorist’.

Update: By the time this blog post was under review, the EU Member states overcame political deadlock and reached an agreement on the ‘so-called’ New Pact on Migration and Asylum, a series of secondary instruments which opt for even harsher patrols of EU’s external borders and the regularization of deterrence policies across the Union. Civil society actors have characterized the Pact as ‘catastrophic for people fleeing war and violence’. It has yet to be seen whether the celerity with which the EU Member States moved forward with the Pact is related to the Gaza Crisis. Nevertheless, the possibility of a more protective approach for Palestinians in the face of this development seems to be moving further away. 

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