On 24 February 2022 Russian armed forces invaded Ukraine. At the time of writing, hostilities are on going. According to UNHCR over 4 million people have fled Ukraine mainly heading west towards and into EU Member States. On 4 March 2022, the EU opened a temporary protection scheme for Ukrainians (and others who were resident in Ukraine and had to flee) using a directive which was adopted in 2001 but had never been used since. In this blog we will examine the scope of the scheme in light of both the Decision which opened it and the Commission’s operational guidelines issued a few weeks later to clarify Member States obligations. The purpose is to understand what those fleeing Ukraine can expect to receive by way of assistance in the EU and compare the UK’s scheme with it.

The scheme provides for a common system for reception and rights for Ukrainians (and others who were resident in that country before the invasion) across all EU Member States (with the exception of Denmark). The purpose of the scheme is to provide immediate protection for Ukrainians with a common minimum threshold of rights. These include a right to residence permits, housing, social welfare, means of subsistence (if they do not have sufficient resources and medical care. Member States are required to authorise persons under the scheme to take employment and/or self-employment (subject to rules of professional qualifications and a national priority). They are also entitled to family reunification with their spouses or durable partners, minor unmarried children and other close relatives who lived together as part of the family unit at the time of the events which led to the opening of the protection scheme. Special provisions apply to the care and protection of minors.

From the wording of the Directive, it is clear that temporary protection under the scheme is a right of everyone who comes within its personal scope. This means that it is not a status which Ukrainians need to apply for as such. All they need to do is present their documents and the authorities of the EU state where they are register them and provide them with their residence permits. There is no discretion to Member State authorities to exclude anyone who fulfils the criteria of the scheme, except on national security grounds, though there is a discretion to include extra categories of persons who may also need assistance. On account of divergences in implementation among the Member States, the European Commission issued a Communication clarifying its correct interpretation on 21 March 2022 which also includes recommendations to Member States regarding best practice in the scheme’s application.

The Decision which opened the scheme, and which had immediate effect from its adoption on 4 March, sets out who is entitled to protection. The Guidelines set out in the Communication provide extra detail on how the scheme must be applied in practice. Our first consideration is the scope of the scheme – who is entitled to temporary protection. The first category is Ukrainian nationals residing in Ukraine before 24 February 2022 and their family members who were also residing in Ukraine on or after the critical date. Proof of nationality can be established by the following documents (even if expired): any kind of Ukrainian passport, national ID cards, military services books or cards, seaman’s registration books, cards or passports, citizenship certificates or other official documents that mention or indicate citizenship. The Commission encourages Member States to take an inclusive approach to documentation bearing in mind that the purpose of the scheme is to ensure rapid processing by reducing formalities to a minimum.

Documentation to prove the entitlement of family members to protection includes registry documents, marriage certificates, birth certificates or any other document issued by the Ukrainian authorities including attestations by consulates. For other close relatives who lived as part of the family unit any documents indicate residence or proof of payment for care. The Commission reminds Member States that they should use their ‘margin of appreciation’ in the most humanitarian way.

Stateless persons and aliens (as well as their family members) who were benefiting from international protection (ie refugee status or humanitarian status) or had permanent residence in Ukraine are also entitled to temporary protection in the EU provided they were there on or after 24 February 2022. These categories receive a lot of attention in the Commission’s Guidelines, no doubt as a result of certain issues which arose at some border crossing points into EU states.

The Guidelines clarify that that those who are not covered by the scheme include: Ukrainians who were displaced before 24 February 2022 or Ukrainians who found themselves outside Ukraine on that date perhaps because they were studying or on holiday etc in some other country. The same applies to stateless persons and aliens enjoying international protection or permanent residence in Ukraine but not present there on the critical date.

Under the Directive itself, Article 7(1) provides that Member States can extend protection under a scheme to additional categories of persons where they are displaced for the same reasons and from the same country. There is a duty to notify the Commission where a Member State uses this possibility. In the Guidelines, the Commission strongly encourages the Member States to extend protection to those who fled Ukraine “not long before” the critical date. The key consideration according to the Commission should be whether the person can go back to Ukraine or where as a result of the armed conflict this is impossible. This could include Ukrainians who a stranded in the UK having arrived here before 24 February 2022 but who are not included in the UK scheme.

As regards movement into the EU, the Decision and the Guidelines repeat that Ukrainians with biometric passports do not require visas to enter the EU (the obligation was abolished in 2017) and recommends that Member States also apply EU rules as generous including issuing visas at the border for Ukrainians who do not hold biometric passports. Once within the EU, Ukrainians are entitled to travel within the Schengen area for 90 days out of every 180. The Commission recommends that they travel to the State where they wish to have temporary protection and to register there. Once Ukrainians are registered in one Member State and have received their residence permit there, it may be complicated to seek to transfer that residence to another Member State.

The scheme has been opened for 12 months with an automatic renewal for six months thereafter and a further six months after that. A formal decision can be taken to extend the scheme to a total of three years. On the other hand, if the situation changes in Ukraine, the scheme can be terminated at any point.

This is quite a generous scheme, in particular the freedom to the Ukrainians (or stateless persons and aliens with permanent residence or protection in Ukraine) to choose where in the EU they want to go to activate their rights. In comparison with EU rules on asylum seekers which require them usually to seek asylum in the first Member State where they arrived, this is a welcome change of perspective.

By comparison, whilst the UK has joined the rest of Europe watching the same horrifying scenes unfold and seen the same floods of people fleeing to safety, our immigration schemes are, by contrast with the Temporary Protection Scheme, paltry and lacking in any compassion for or true understanding of the dire situation displaced Ukrainians face.

The Nationality and Borders Bill has already been the subject of many blog posts, and with good reason. Sadly, the present crisis offers a perfect demonstration of why the impact of the Bill is so shockingly and punitively bad. The Bill extends the powers of the Home Secretary to declare asylum applications to be inadmissible on the basis that someone could have sought refuge elsewhere, and for Ukrainians, who will find it practically impossible to arrive directly in the UK, this includes any countries they may have passed through in their desperation to flee. In contrast to the EU’s 2017 decision to waive visa requirements for Ukrainian biometric passport holders, in the UK there has not been any indication Parliament plans to entertain lifting the visa requirement for Ukrainians, dramatically limiting the possibility of Ukrainians finding a safe, legal route to the UK and jeopardising their chances of seeking refugee protection in the UK.

In terms of the safe and legal routes open to Ukrainians, there are really only two schemes in place, and a comprehensive guide to these is set out in our FAQs. For the purposes of this blog, suffice to say the options are shamefully limited. Admittedly, under the Ukrainian Family Scheme the Government has amended the usual rules to allow a more generous range of extended family members to use this scheme, and there are varying reports as to how much evidential flexibility is being applied. However, the Scheme still only applies to those fortunate few who have a ‘UK-based’ relative, meaning someone who is either British, holds settled status, is an EU national with pre-settled status, or is themselves a refugee, and to date fewer than 25,000 visas have been issued under this scheme. The much anticipated Homes for Ukraine Scheme was woefully late in opening, also entails gruelling admin, appears to vary in its practical application from local council to local council, and has only been granted to fewer than 5,000 people.

This brings our grand total to fewer than 30,000 visas, which accounts for an abysmally small fraction of the four million that have now fled Ukraine. Realistically, most will seek and find shelter in Ukraine’s neighbouring states and others will likely find safety elsewhere in the EU. However, although the numbers wishing to come to the UK may be comparably small, the UK surely has a moral obligation to provide a smooth and painless end to what must have been an arduous journey. Without question, the current options are not painless and are not smooth.

Hearteningly, the public has been staunch in their criticism of the Government’s response to the crisis and quick to offer to open up their homes to those in need. This must surely be viewed as confirmation that we view providing protection for Ukrainians fleeing the war as a moral imperative. We therefore have to wonder whether, despite Brexit, we should instead approach this as a common European problem and responsibility and that coordination among European states, irrespective of EU membership, and participation in a common generous scheme would prove to the world the determination of Europe to live up to its historic refugee protection obligations. We can only hope.