Confusion and questions over best options for protection for fleeing Ukrainians

When Russian forces launched a full-scale invasion of Ukraine on February 24, Yara was abroad on a work trip.

The young Ukrainian woman, who asked that a pseudonym be used for this piece, was faced with the challenging decision of where to seek refuge now that her home was under attack. She settled on Ireland because she wanted somewhere English-speaking, and heard that it had recently lifted travel restrictions for Ukrainians.

As one of the early arrivals, Yara applied for international protection and entered into a system which conducts individual assessments of a person’s claim.

Less than a week later, the European Council activated, for the first time in history, a Temporary Protection Directive which enabled Ukrainians who have fled the country to have access to a range of entitlements in EU member states including accommodation, employment, and education.

Under Irish law, temporary protection cannot be applied to a person who is an applicant for international protection. This means Yara, and hundreds of other Ukrainians who were early arrivals, may be faced with a choice of whether to continue with their initial applications.

Along with confusion over the best options for protection, there are also questions regarding exactly how the temporary directive will be implemented, what happens after it expires, and what relocation entitlements do those receiving temporary protection have in the EU.

Despite a national pledge to offer as much support as possible, what barriers may Ukrainians face in the Irish immigration system?

What the Directive means

The Temporary Protection Directive, which was enacted by the EU on March 4, gives Ukrainians the right to receive the support and protection of an EU member state.

Among the entitlements the directive provides is permission to reside in a member state for a period of one year, but this may be extended for up to three years. It also provides for full access to the labour market and access to accommodation if needed, as well as access to medical care, social welfare supports and education.

Ukrainians wishing to avail of the supports in Ireland can register at a facility in Dublin airport as well as various hubs in Dublin and Cork, with another opening in Limerick this week. More than 3,000 have been granted temporary protection to date, according to figures released last week.

The directive, which was issued in 2001, is intended to be a more streamlined alternative to other forms of international protection. While there is a stipulation in Irish law that an applicant for international protection cannot qualify for temporary protection, the 2001 directive notes that persons enjoying temporary protection must be able to lodge an application for asylum at any time.

Denise Brett, senior counsel and chair of the Immigration, Asylum and Citizenship Bar Association (IACBA), said the reality was that a person may be entitled to both protections, but they cannot avail of them at the same time. “You can do them sequentially, but you can’t be in both," she said.

A main difference between the two forms of protection, aside from the length of time residency is granted for, is how it provides people with access to work. Applicants for international protection in Ireland have to wait between six and nine months to work depending on when their application was lodged.

“With TP, you get immediate access to the employment market,” Brett said. “Without a second's hesitation, for the immediate crisis TP is the way to go.”

When presented with the question of what a person who applied for international protection but wants to avail of temporary protection should do, a spokesman for the Department of Justice said they can withdraw their international protection application in writing.

Brett said she believed this answer was incomplete as it did not tell applicants what the consequences of a withdrawal would be. She said people will want to know that withdrawing an application will not be a detriment to a further international protection application.

“That's a very significant step in law because you're going to have to reapply to the minister to be readmitted if you're going for international protection,” she added.

Brett said it was also unclear whether someone who received temporary protection in Ireland but wanted to relocate to another EU member state would risk being sent back to the country that granted them the protection. She said family reunification provided avenues for this to occur, but member states had the power to ask people to return to their host country in other instances.

Brett said this was because the country that provides the temporary protection was seen as the one that takes care of the person, including providing social welfare supports.

“So it's not that you can't do it, it's that you can't guarantee that you won't be sent back is my understanding of the system,” she said. “We still don’t know how this will play out".

Unprecedented situation

The Temporary Protection Directive was enacted to prevent overwhelming of the asylum systems in various EU member states. The United Nations (UN) High Commissioner for Refugees has estimated that up to four million people may flee Ukraine as a result of the conflict.

David Conlan Smyth, a senior counsel who specialises in European law, said the invasion of Ukraine was precisely the situation which the temporary protection directive was established to meet. He said the situation in Ukraine was “unprecedented” and the mass displacement of nationals of a European country was “on a scale not seen since 1945”.

“Its activation seems entirely appropriate to allow member states to carry out the minimal appropriate checks to determine that the individuals concerned are Ukrainian and have been displaced as a result of the invasion, without the necessity for the comprehensive assessment that's required in the context of an application for an international protection,” he said.

“That [assessment] would be simply impossible in the context of the numbers of persons who have been displaced from Ukraine to date.”

In terms of what happens after the period of up to three years with which the Temporary Protection Directive can be in place, Conlan Smyth said that was as much a political question as a legal one. He said the directive did not cover that situation but, from a legal point of view, Ukrainians would be entitled to apply for subsidiary protection.

Subsidiary Protection is another form of international protection which deals with a situation where a person would face a real risk of suffering serious harm if they returned to their home country. This differs from refugee status, which is based on individualised persecution because of race, religion, nationality or a small number of other factors.

“If it were to be the case in three years’ time that the council, for whatever reason, wasn't able to agree on an extension to the temporary protection directive and its regime, it seems to me you'd be able to, at least in principle, apply for subsidiary protection status,” he added.

Albert Llussà, a solicitor with Daly Lynch Crowe & Morris, said there was “no doubt” in his mind that the temporary protection directive would be renewed. He said, even in the unlikely event that it was not renewed, he envisioned that the government may grant permission to remain, which is based on humanitarian considerations and a person’s connection to Ireland.

Llussà said the International Protection Office (IPO), which handles claims within the Department of Justice, may prioritise Ukrainian applicants and process refugee status claims expeditiously without the need for an interview.

He said this has been the case with applicants from Afghanistan since US forces exited the country last year and the Taliban regained power.

“I suspect they will do the same with Ukrainians,” he said, noting that having refugee status provides a faster pathway to naturalisation. “So the client would be better off asking the IPO to issue a decision on their international protection claims.”

The Department of Justice, when questioned on whether they would grant Ukrainians refugee status based on papers, said the person would have their application examined in accordance with the provisions of the International Protection Act 2015, “including having an interview”.

A spokesman said the department’s immediate priority was to assist those who have arrived and to continue to arrive in Ireland to seek temporary protection and to provide them with access to state supports as needed.

“The EU Council will decide if Temporary Protection status should be extended beyond the initial one year period,” he said. “Should the temporary protection not be extended, the right to claim international protection at that point will not be affected.”

Potential difficulties

Speculation around what happens in over a year’s time may be premature, given that many Ukrainians may understandably want to return to their home country as soon as possible.

Anna Bazarchina, a Ukrainian-born barrister working in Ireland, said most displaced Ukrainians, especially those who left family or loved ones behind, did not want to permanently reside outside their home country.

“I think the majority that have arrived here, and are availing of the temporary protection, their main wish is to go back to Ukraine, to their homes,” she said. “Obviously there will be situations where people perhaps have lost everything there and might wish to consider staying in Ireland, and that will be looked at then.”

Bazarchina said she was concerned about potential travel and movement difficulties which Ukrainians enjoying temporary protection may face. She said she had recently received an inquiry regarding a Ukrainian lawyer who was granted temporary protection in the Czech Republic but had been unable to find work there and wanted to come to Ireland.

She said immigration NGO staff in Ireland had said the woman may be sent back to the Czech Republic if she relocated. “This is an issue that needs urgent clarification,” she added.

Bazarchina said Ukrainians were highly qualified and many had left good jobs and professions behind. She said some would be eager to return to their work when it is safe to do so.

“How that is going to play out in the future, I mean, it’s all unknown to us,” she said.