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UKRAINE SETTLEMENT OPTIONS PAPER: CHILDREN - DIANE MARIE AMANN

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UKRAINE SETTLEMENT OPTIONS PAPER: CHILDREN - DIANE MARIE AMANN

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35 Pages Posted: 6 Jul 2022 Last revised: 27 Sep 2022

Date Written: July 5, 2022

Abstract

The conflict arising out of Russia's 2022 invasion of Ukraine has wreaked disproportionate harms upon children - harms including killing or wounding, sexual violence, and loss of loved ones, homes, and schools through forced displacement. The list grew longer as the war dragged on, and children whose young age intersected with other attributes, such as ethnicity, LGBTI identity, or disability, confronted additional risks. This paper demonstrates the necessity of including this reality in processes aimed at settling armed conflicts like that in Ukraine. (The paper forms part of the Ukraine Peace Settlement Project of the University of Cambridge Lauterpacht Centre for International Law.) Building on recent international child law syntheses and two prior peace agreements, the paper proposes ways to assure particularized treatment of children's experiences, needs, rights, and capacities in any negotiations and eventual settlement.

Keywords: international child law, child rights, human rights, conflict resolution, peace, peace agreements, international criminal law, transitional justice, international humanitarian law, international law, armed conflict, United Nations, children and armed conflict, International Criminal Court

JEL Classification: K33, K4, K14

Amann, Diane Marie, Ukraine Settlement Options Paper: Children (July 5, 2022). University of Georgia School of Law Legal Studies Research Paper No. 07, 2022, Available at SSRN: https://ssrn.com/abstract=4154575

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ukraine settlement options paper: children

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Ukraine Settlement Options Paper: Children

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35 Pages Posted: 6 Jul 2022 Last revised: 27 Sep 2022 Date Written: July 5, 2022 The conflict arising out of Russia's 2022 invasion of Ukraine has wreaked disproportionate harms upon children - harms including killing or wounding, sexual violence, and loss of loved ones, homes, and schools through forced displacement.

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SECURING CHILD RIGHTS IN TIME OF CONFLICT - Diane Marie Amann

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SECURING CHILD RIGHTS IN TIME OF CONFLICT - Diane Marie Amann

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UNIVERSITY OF GEORGIA SCHOOL OF LAW RESEARCH PAPER SERIES

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11 Pages Posted: 4 Mar 2016 Last revised: 7 Aug 2016

Date Written: March 2, 2016

Abstract

Each term in the title of this essay seems simple, yet provides much food for analytical thought. The essay thus explores: what is "conflict," and whether there is a "time" when it is not present; who is a "child"; whether and to what extent children enjoy "rights"; and, finally, how local, national, and international regimes go about "securing" those rights. The essay - based on a talk given at the 2015 International Law Weekend in New York - concludes with a glance at a new potential avenue for child security: the Sustainable Development Goals which the U.N. General Assembly adopted that same year.

Keywords: armed conflict, violence, children, Sustainable Development Goals, human rights, human security, United Nations, State Department, Child Rights Convention, Hague Abduction Convention, child soldiers, international criminal law, sexual violence

JEL Classification: K19

Amann, Diane Marie, Securing Child Rights in Time of Conflict (March 2, 2016). 22 ILSA Journal of International & Comparative Law 483, 2016, UGA Legal Studies Research Paper No. 2016-11, Dean Rusk International Center Research Paper No. 2016-01, Available at SSRN: https://ssrn.com/abstract=2741297

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securing child rights in time of conflict

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Securing Child Rights in Time of Conflict

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11 Pages Posted: 4 Mar 2016 Last revised: 7 Aug 2016 Date Written: March 2, 2016 Each term in the title of this essay seems simple, yet provides much food for analytical thought.

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International Child Law and the Settlement of Ukraine-Russia and Other Conflicts - Diane Marie Amann

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International Child Law and the Settlement of Ukraine-Russia and Other Conflicts - Diane Marie Amann

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The article draws upon twenty-first century projects that examine the lives of children in armed conflict by synthesizing international child law. The projects’ syntheses have influenced the work of certain international organizations bodies but not, to date, the work of peace settlements.

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ADVANCING JUSTICE FOR CHILDREN: innovations to strengthen accountability for violationsand crimes affecting children in conflict

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ADVANCING JUSTICE FOR CHILDREN: innovations to strengthen accountability for violationsand crimes affecting children in conflict

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To download: https://ora.ox.ac.uk/objects/uuid:74d29001-49d8-4797-9de0-730cb12f0656

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Safeguarding Children’s Rights in Immigration Law

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Safeguarding Children’s Rights in Immigration Law

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To access the pdf summary: here

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Safeguarding Children’s Rights in Immigration Law, Klaassen, M., Rap, S., Rodrigues, P. & Liefaard, T

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Since the adoption of the Convention on the Rights of the Child (CRC) in 1989, attention to the human rights of children and young people in migration has progr

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Exhibition - From Despair to Hope: Children Beyond Armed Conflict

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Exhibition - From Despair to Hope: Children Beyond Armed Conflict

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“From Despair to Hope: Children Beyond Armed Conflict” aims at reflecting on the complexity of the lives of children amidst conflict, emphasizing both the tragedy and the faith in a better future.

Organized by the Office of the Special Representative of the Secretary-General for Children and Armed Conflict

https://www.un.org/en/exhibits/exhibit/children-beyond-armed-conflict

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In flight from conflict and violence: UNHCR's consultations on refugee status and other forms of international protection, edited by Volker Türk, Alice Edwards, Cornelis Wouters

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In flight from conflict and violence: UNHCR's consultations on refugee status and other forms of international protection, edited by Volker Türk, Alice Edwards, Cornelis Wouters

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Cambridge Core - International Relations and International Organisations - In Flight from Conflict and Violence

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Women and Girls Fleeing Conflict: Gender and the Interpretation and Application of the 1951 Refugee Convention - Valerie Oosterveld

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Women and Girls Fleeing Conflict: Gender and the Interpretation and Application of the 1951 Refugee Convention - Valerie Oosterveld

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The enduring consequences of conflict-related sexual violence: a qualitative study of women survivors in northern Uganda - Mahlet A. Woldetsadik, Grace Acan & Okwir Isaac Odiya 

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The enduring consequences of conflict-related sexual violence: a qualitative study of women survivors in northern Uganda - Mahlet A. Woldetsadik, Grace Acan & Okwir Isaac Odiya 

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One in three women in northern Uganda report having suffered from conflict-related sexual violence (CRSV), including forced marriage and rape.
Research on the long-term effects of CRSV on the health and social well-being of survivors is scant, but crucial to informing policy and improving programs tailored to conflict-affected communities.
Understanding women’s perceptions of and experiences with CRSV, especially related to the persistent health and social challenges they continue to face, is critical for developing effective and targeted interventions.

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The enduring consequences of conflict-related sexual violence: a qualitative study of women survivors in northern Uganda - Conflict and Health

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Background One in three women in northern Uganda report having suffered from conflict-related sexual violence (CRSV), including forced marriage and rape. Research on the long-term effects of CRSV on the health and social well-being of survivors is scant, but crucial to informing policy and improving…

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Special Eurobarometer: integration of immigrants in the European Union

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Special Eurobarometer: integration of immigrants in the European Union

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68% respondents overestimate the real share of immigrants in the population.

Fewer than four in ten Europeans (38%) think they are well informed about the immigration and integration of third-country nationals.

Half of respondents (50%) consider that the integration of most immigrants is successful in the area in which they live, but a similar proportion (47%) believe that integration is unsuccessful at the national level.

The majority of respondents (69%) believe that actively promoting the integration of immigrants is a necessary investment for their country in the long run.

85% respondents feel that immigrants should be able to speak at least one of the official languages of the EU, in order to be able to better integrate.

Just over half of respondents (53%) agree that their national government is doing enough to promote the integration of migrants into society.

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On the occasion of World Refugee day 2022, the European Commission published the results of a Special Eurobarometer survey. The survey was conducted between 2 November and 3 December 2021 and examined public opinion on the integration of immigrants in the European Union. 26 510 EU citizens were surveyed across all EU Member States.

Key findings

68% respondents overestimate the real share of immigrants in the population.

Fewer than four in ten Europeans (38%) think they are well informed about the immigration and integration of third-country nationals.

Half of respondents (50%) consider that the integration of most immigrants is successful in the area in which they live, but a similar proportion (47%) believe that integration is unsuccessful at the national level.

The majority of respondents (69%) believe that actively promoting the integration of immigrants is a necessary investment for their country in the long run.

85% respondents feel that immigrants should be able to speak at least one of the official languages of the EU, in order to be able to better integrate.

Just over half of respondents (53%) agree that their national government is doing enough to promote the integration of migrants into society.

Source: Special Eurobarometer 519, 2022.

The survey also confirms EU citizens' approval (70%) of the EU approach to integration as a two-way process, and similar levels of support are shown for the EU's multi-stakeholder approach in relation to the integration process. In particular, respondents agree with the importance attached to the role of various actors in the process of integration, such as employers, schools and national authorities at both regional and local levels.

Access the report, related infographics and individual country factsheets online here. The full report and a report summary can also be found below.

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Special Eurobarometer: integration of immigrants in the European Union

# data[].attributes.attachment_link.description
On the occasion of World Refugee day 2022, the European Commission published the results of a Special Eurobarometer survey. The survey was conducted between 2 November and 3 December 2021 and examined public opinion on the integration of immigrants in the European Union. 26 510 EU citizens were surveyed across all EU Member States.

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Effects of COVID-19 on integration of women refugees into Turkish society

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Effects of COVID-19 on integration of women refugees into Turkish society

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Şuay Nilhan Açıkalın,Can Eminoğlu,Şefika Şule Erçetin

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Chapter 19: Family reunification in EU Immigration and Asylum Law

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Chapter 19: Family reunification in EU Immigration and Asylum Law

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Authors: Steve Peers and Nicola Rogers

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"Chapter 19. Family Reunion" published on 01 Jan 2006 by Brill | Nijhoff.

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COMBATTING OR ENABLING DOMESTIC VIOLENCE? EVALUATING THE RESIDENCE RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE - Catherine Briddick

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COMBATTING OR ENABLING DOMESTIC VIOLENCE? EVALUATING THE RESIDENCE RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE - Catherine Briddick

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The treatment of third-country nationals (TCNs) under EU law falls far short of the EU's commitments to eliminate gender inequality and to ‘combat all kinds of domestic violence’.
This article's analysis of the EU Citizens’ Directive and Istanbul Convention supports this recommendation.

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On the scope of the Convention, compare art 2(1) 'This Convention , 'Reflections on Domestic Violence as Gender-Based Violence in European Legal Developments' in and (eds), Family Ambiguity and Domestic Violence in Asia (Sussex Academic Press 2013) shall apply to all forms of violence against women, including domestic violence...' with art 2(2) 'Parties are encouraged to apply this Convention to all victims of domestic violence. Parties shall pay particular attention to women victims...' (emphasis added). If the term 'and' in art 3(e) was interpreted cumulatively, the protections of the Convention would not be available to women subjected to, for example, stalking, sexual harassment and sexual violence where the perpetrator was someone outside of a women's household or family. That the 'and' is used to denote two, potentially distinct beneficiary groups, 'victims of violence against women' and 'victims of domestic violence', the former being only female with the latter potentially including men/boys, is also confirmed by the reference to 'women victims' in cases where a particular right/protection is available only to the former group eg art 18(3) which refers to the 'empowerment and economic independence of women victims of violence'. See further Google Scholar.

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COMBATTING OR ENABLING DOMESTIC VIOLENCE? EVALUATING THE RESIDENCE RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE | International & Comparative Law Quarterly | Cambridge Core

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On the scope of the Convention, compare art 2(1) 'This Convention , 'Reflections on Domestic Violence as Gender-Based Violence in European Legal Developments' in and (eds), Family Ambiguity and Domestic Violence in Asia (Sussex Academic Press 2013) shall apply to all forms of violence against women, including domestic violence...'

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Integration from the perspective of young women who came to Sweden as unaccompanied asylum-seeking girls from Afghanistan. An interpretative phenomenological analysis

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Integration from the perspective of young women who came to Sweden as unaccompanied asylum-seeking girls from Afghanistan. An interpretative phenomenological analysis

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By Mostafa Hosseini and Elisabeth Punzi

Despite being in vulnerable positions, they experienced independence and the capacity to change their lives and sought to contribute to equal rights for women. The participants described integration as a process, enhanced by their personal agency and by their social, relational, and material contexts. Based on the results, we discuss how integration can be supported.

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Conquering the labour market: the socio-economic enablement of refugee women in Austria

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Conquering the labour market: the socio-economic enablement of refugee women in Austria

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By David W. Schiestl1* , Bernhard Kittel and Maite Ibáñez Bollerhof

Refugee women from the Near and Middle East face specific challenges when entering the Austrian labour market.
Particularly gender-based factors, including care and reproductive work, exert pressure on these women and constitute major hurdles for successful entry into employment in Austria.

Based on nine qualitative interviews with refugee women who swiftly gained entry to the labour market as well as ten qualitative interviews with experts from public and private support organisations, we investigate refugee women’s social and cultural capital as well as the individual agencies that foster paths into the labour market.
We introduce the concept of enablement as the process of gathering the preconditions for overcoming the challenges that arise on that path.
Finally, we illuminate the ways in which the three dimensions of individual, relational and institutional enablement interrelate and shape individual agency with regard to labour market integration.

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Reframing ‘integration’: acknowledging and addressing five core critiques - by Sarah Spencer & Katharine Charsley 

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Reframing ‘integration’: acknowledging and addressing five core critiques - by Sarah Spencer & Katharine Charsley 

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Among European scholars, however, there remains no consensus on how integration should be defined nor what the processes entail.

In this paper we argue that it is both necessary and possible to address each of the five core critiques on which recent criticism has focused: normativity; negative objectification of migrants as ‘other’; outdated imaginary of society; methodological nationalism; and a narrow focus on migrants in the factors shaping integration processes.

We provide a definition of integration, and a revised heuristic model of integration processes and the ‘effectors’ that have been shown to shape them, as a contribution to a constructive debate on the ways in which these challenges for empirical research can be overcome.

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Social integration of Syrian refugees and their intentionto stay in Germany - by Cyrine Hannafi · Mohamed Ali Marouan

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Social integration of Syrian refugees and their intentionto stay in Germany - by Cyrine Hannafi · Mohamed Ali Marouan

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States and Refugee Integration: a Comparative Analysis of France, Germany, and Switzerland

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States and Refugee Integration: a Comparative Analysis of France, Germany, and Switzerland

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Accessing language programs was more challenging in France, finding housing was more challenging in Germany, and F type residence permits limited refugees’ rights in Switzerland more than in other countries. Discrimination across domains  is deepening the socio-cultural-economic divide between autochthonous communities and Syrian refugees, but not all domains are equally divisive across countries

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From Integration to Belonging? Exploring the Trajectoryof Integration for Short-term Settled Refugee Women in Berlin 

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From Integration to Belonging? Exploring the Trajectoryof Integration for Short-term Settled Refugee Women in Berlin 

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NIEM report: refugee integration evaluation in 14 EU states

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NIEM report: refugee integration evaluation in 14 EU states

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Since the most recent NIEM comparative evaluation report of two years ago, there has been little to no progress in the 14 countries analysed. Many countries have even seen some 'backsliding', specifically in the areas of residency, housing and social security, although there has been slight progress in the areas of citizenship, collaboration, family reunification, language learning, and social orientation.

Compared with present legal provisions on residence and equal access, all countries do worse when it comes to active policies supporting integration, cross-sectoral coordination, and government support for civil society and local authorities.

During the COVID-19 pandemic, countries with more inclusive integration policy frameworks had more favourable outcomes in terms of minimising the effects of the COVID-19 outbreak upon refugees.

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The Impact of Forced Displacement on Host Communities: A Review of the Empirical Literature in Economics

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The Impact of Forced Displacement on Host Communities: A Review of the Empirical Literature in Economics

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Principles and Guidelines supported by practical guidance, on the human rights protection of migrant on vulnerable situations

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Principles and Guidelines supported by practical guidance, on the human rights protection of migrant on vulnerable situations

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Where migrants fall outside the specific legal category of “refugee”, it may be especially important to ensure that their human rights are respected, protected and fulfilled. Some migrants will need specific protection because of the situations they left behind, the circumstances in which they travel or the conditions they face on arrival, or because of personal characteristics such as their age, gender identity, disability or health status.

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Local Integration: A Durable Solution in need of Restoration? Lucy Hovil* and Nicholas Maple

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Local Integration: A Durable Solution in need of Restoration? Lucy Hovil* and Nicholas Maple

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While refugees continue to find ways to negotiate their own access to communities and labour markets, this is often done against national, regional, and international policies rather than with them.
Ultimately, by highlighting its value as a durable solution, while showing that there is almost uniform acceptance by states and international organisations working on protection concerns that it is no longer politically viable, this article hopes to restart an urgent conversation about the value of local integration and how it can be reinvigorated.

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How to strengthen the integration of migrant women?

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How to strengthen the integration of migrant women?

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Full report here.

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European Migration Network Study: Integration of migrant women 

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European Migration Network Study: Integration of migrant women 

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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By Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***(2022)
Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk

For this temporary protection to be effectively deployed, however, the Council must first establish that the displaced persons fleeing amount to a ‘mass influx’.[16] As this decision is subject to a qualified majority of votes,[17] the TPD had never before been activated, although Italy, supported by Malta, unsuccessfully submitted a proposal in 2011.[18]

In this sense, the recent adoption of the Decision establishing the existence of a ‘mass influx’ of displaced persons,[19] and the resulting activation of the TPD, opens up new ground in the history of European migration policy and highlights emerging challenges for the interpretation of TPD provisions. The purpose of the present study is to examine two particular challenges which may limit the scope of the TPD and affect its primary purpose to promote solidarity and burden-sharing among EU Member States.[20]

The first challenge concerns the personal scope of the Directive’s temporary protection.

[...]

The second issue concerns the social protection-related provisions of the TPD. Despite their innovative features, their substance remains unclear.

[...]

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine | Oxford University Comparative Law Forum

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(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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By Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***(2022)
Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk

For this temporary protection to be effectively deployed, however, the Council must first establish that the displaced persons fleeing amount to a ‘mass influx’.[16] As this decision is subject to a qualified majority of votes,[17] the TPD had never before been activated, although Italy, supported by Malta, unsuccessfully submitted a proposal in 2011.[18]

In this sense, the recent adoption of the Decision establishing the existence of a ‘mass influx’ of displaced persons,[19] and the resulting activation of the TPD, opens up new ground in the history of European migration policy and highlights emerging challenges for the interpretation of TPD provisions. The purpose of the present study is to examine two particular challenges which may limit the scope of the TPD and affect its primary purpose to promote solidarity and burden-sharing among EU Member States.[20]

The first challenge concerns the personal scope of the Directive’s temporary protection.

[...]

The second issue concerns the social protection-related provisions of the TPD. Despite their innovative features, their substance remains unclear.

[...]

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine | Oxford University Comparative Law Forum

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(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine. The meeting focused on the risks of human trafficking amid the current crisis and measures being taken to address vulnerabilities of people on the move and to prevent trafficking.

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VIENNA, 15 March 2022 - The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine. The meeting focused on the risks of human trafficking amid the current crisis and measures being taken to address vulnerabilities of people on the move and to prevent trafficking.

Opening the meeting, Richey briefed national authorities about his visit to the Polish-Ukrainian border on 13 and 14 March, where he assessed the robust efforts carried out by Polish authorities to accommodate and support people entering the country.

Government representatives from Austria, France, Germany, Romania and Slovakia also presented their national measures to respond to the crisis. These include monitoring of online searches (a spike was noted in searches for Ukrainian women for sex and marriage), and distributing leaflets translated into Ukrainian to inform people on the move of their rights and options. Representatives from the EU Commission presented the temporary protection mechanism quickly established by the EU, which includes a temporary residence permit and access to the job market.

Over three million people have left Ukraine in the past weeks, crossing its Western borders into other European countries. These people, mostly women and children, are particularly vulnerable and face significant risks of human trafficking during their journey or upon arrival at a destination country. To respond to these risks and to provide governments with concrete guidance on how to address vulnerabilities and reduce risks of trafficking, the Office of the OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings issued a set of policy recommendations for countries.

"The way we are going to prevent the current humanitarian crisis from turning into a human trafficking crisis is by investing in prevention and by protecting vulnerable people" said Richey.

The complete set of recommendations is available on the OSCE website: www.osce.org/cthb/513784

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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VIENNA, 15 March 2022 - The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine.

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Guidance Note on addressing the risks of trafficking in human beings related to the war in Ukraine and the ensuing humanitarian crisis

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Guidance Note on addressing the risks of trafficking in human beings related to the war in Ukraine and the ensuing humanitarian crisis

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Group of Experts on Action against Trafficking in Human Beings (GRETA)

The Guidance Note addresses a broad range of issues such as registration and safe routes, immediate assistance and integration, information and awareness-raising, detection of potential victims and traffickers, vulnerable groups, as well as co-operation, co-ordination and data collection.

It follows on previous work developed by GRETA, notably the Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection, and complements recommendations issued by other international actors, such as the OSCE Special Representative and Coordinator for Combatting Trafficking in Human Beings.

As the purpose of this Guidance Note is to focus on preventive measures, it does not seek to be exhaustive and does not tackle questions related to, for example, access to justice for victims of trafficking.

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The Integration Challenges of FemaleRefugees and Migrants: Where Do WeStand?

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The Integration Challenges of FemaleRefugees and Migrants: Where Do WeStand?

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Clara Albrecht, Maria Hofbauer Pérez and Tanja Stitteneder

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Reducing Social Isolation for Refugee Women and Other Marginalized Newcomers

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Reducing Social Isolation for Refugee Women and Other Marginalized Newcomers

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2020 - by Natalia Banulescu-Bogdan

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Geographies of Shame: Diachronic and Transnational Shame in Forced Migrants with Experiences of Sexual and Gender-Based Violence

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Geographies of Shame: Diachronic and Transnational Shame in Forced Migrants with Experiences of Sexual and Gender-Based Violence

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Papoutsi, A., Phillimore, J., Akyüz, S., Hannah, B., Goodson, L. & Vaughan, C., 30 Jun 2022, (E-pub ahead of print) In: Journal of Refugee Studies. feac036.

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Forced migration, sexual and gender-based violence and integration: effects, risks and protective factors

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Forced migration, sexual and gender-based violence and integration: effects, risks and protective factors

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Papoutsi, A., Phillimore, J., Akyüz, S., Hannah, B., Goodson, L. & Vaughan, C., 30 Jun 2022, (E-pub ahead of print) In: Journal of Refugee Studies. feac036.

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Forced Migration, Sexual and Gender-based Violence and Integration: Effects, Risks and Protective Factors - Journal of International Migration and Integration

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This paper is the first to use empirical evidence to directly examine the relationship between sexual and gender-based violence (SGBV) and multi-dimensional processes of integration of forced migrant SGBV survivors. While it is acknowledged that forced migrants are subjected to a continuum of violen…

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Asylum, Racism, and the Structural Production of Sexual Violence against Racialised Women in Exile in Paris

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Asylum, Racism, and the Structural Production of Sexual Violence against Racialised Women in Exile in Paris

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By Jane Freedman 1,2,*, Nina Sahraoui 2 and Elsa Tyszler 2

The recent arrival of refugees from Ukraine has thrown into sharp focus the racialised colonial underpinnings of the French asylum and refugee system, as the open-door welcome afforded to Ukrainians, supposedly “closer” to the French population, highlights the rejection and marginalisation of “others” who seek refuge in the country.

The withdrawal of access to welfare and social services, including housing, welfare payments or health services, all form a part of this system of structural violence which leads to increasing levels of harm. Based on ethnographic research carried out in the Paris region, our article aims to emphasise that the structural production of gendered violence, particularly sexual violence against racialised exiled women, illustrates the coloniality of the asylum system and more broadly of the migration regime, which manifests itself in policies of exclusion, neglect and endangerment—including death.

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Paris Centre for Sociological and Political Research (CRESPPA), Université Paris 8 Vincennes-St Denis, 93200 Saint-Denis, France

Paris Centre for Sociological and Political Research (CRESPPA), French National Centre for Scientific Research (CNRS), 75017 Paris, France

Author to whom correspondence should be addressed.

Academic Editors: Olga Jubany and Lucy Mayblin

Received: 15 July 2022 / Revised: 12 September 2022 / Accepted: 16 September 2022 / Published: 20 September 2022

The recent arrival of refugees from Ukraine has thrown into sharp focus the racialised colonial underpinnings of the French asylum and refugee system, as the open-door welcome afforded to Ukrainians, supposedly "closer" to the French population, highlights the rejection and marginalisation of "others" who seek refuge in the country. The current situation lays bare not only the "double standards" applied to refugees depending on their country of origin and race, but also the colonial foundations of the French asylum system as a whole. This might be seen as particularly significant in a country where even within academic research on asylum and refugees the racial and colonial foundations of the current system are rarely mentioned, and where the principle of Republican universalism has been consistently used to both hide and justify racialised and gendered forms of inequality and discrimination. In this contribution we wish to explore the ways in which the coloniality of the French asylum system works to deny exiled women access to welfare and social services, creating systems of racialised and gendered violence against them. We highlight the ways in which the State not only neglects these women, but actively contributes to violence through its racialised neo-liberal policies. The withdrawal of access to welfare and social services, including housing, welfare payments or health services, all form a part of this system of structural violence which leads to increasing levels of harm. Based on ethnographic research carried out in the Paris region, our article aims to emphasise that the structural production of gendered violence, particularly sexual violence against racialised exiled women, illustrates the coloniality of the asylum system and more broadly of the migration regime, which manifests itself in policies of exclusion, neglect and endangerment-including death.

1. Introduction

"When we are afraid of migratory phenomena, I think that here too we must defend our DNA, that is to say our duty to welcome those who are fleeing a country at war, like the Ukrainians today, but at the same time to know how to fight against illegal immigration. By demanding this clarity, I think, we can respond to fears and at the same time provide a Republican response." (Emmanuel Macron, 4 April 2022, on Radio France Inter 1, translation by the authors)

"How must we keep ourselves together

when the universal patterns of migration

make themselves hosts to our agency to stay still

and we are blown apart by gusts of wind

laden with dust

laden with wails

smelling faintly of gunpowder and famine

forcing us into hostile places

that transform us into number sequences printed in cards

and A4 pieces of paper

barcodes with details

of our unwanted migrant histories

and criminal records

when the crime committed is reaching for safety"

Aaiùn Nin, Broken Halves of a Milky Sun, 2022, pp. 34-35

The statement by Emmanuel Macron, the French president, on French radio on the eve of the last presidential elections, illustrates how asylum and migration policies are used to define and defend the purity of the French race with reference to a supposed French DNA, compatible with welcoming Ukrainians but not other exiles whose arrivals must be prevented. In other words, Macron is performing the defence of a white French Republic ( Cohen and Mazouz 2021). It is interesting to note that there was little outrage at this statement. This illustrates the banality of state violence emanating from the intertwining of migration, asylum and white supremacy in political discourse and practice. As Bonds and Inwood ( 2016) have written, white supremacy should be understood not as an artefact of history or as an extreme position, but rather as the basis for the continuing development of practices of race and racism within colonial-and we add postcolonial-states ( Wekker 2016). The words of Angolan poet Aaiùn Nin, whose asylum application was rejected in Denmark, name this racist violence whereby impersonal bureaucracies produce multifold deprivations through the criminalization of migration. We shall highlight in this article how as a result, racialised women seeking asylum in Paris face systematic sexual and gendered violence.

The recent arrival of refugees from Ukraine has thrown into sharp focus the racialised colonial underpinnings of the French asylum and refugee system, as the open door welcome afforded to Ukrainians, supposedly "closer" to the French population, highlights the rejection and marginalisation of "others" who seek refuge in the country. Importantly, French politicians have emphasised the welcoming spirit of the policies concerning Ukrainian refugees, asking state representatives for a benevolent and compassionate application of the law. In a radio interview on France Info on 8 March 2022, Marlène Schiappa, Minister attached to the Minister of the Interior and responsible for Citizenship, answered the journalist's questions about what would happen for those who couldn't take their passports before leaving Ukraine by saying "There is flexibility, obviously we have given instructions, with Gérard Darmanin [the Interior Minister], to the Prefects [state representative at the regional level]..." adding that "when you see that in a family there are people who have their passport and then one of the members of the family who doesn't have his or her passport, it's people who are fleeing from war, so I believe that humanity is also not to add formalities to formalities" 2. Besides the very different legal dispositions that were either activated or designed specifically for Ukrainian refugees, politicians' attitudes revealed the racialised undertone of this double standard at various governance levels. In the Calais region for instance, where for years all humanitarian activities towards refugees have been increasingly criminalised in the context of the 'zero-fixing' policy, Mayor Natacha Bouchart publicly welcomed a Ukrainian refugee family to display her support and express her shock at the refoulement of Ukrainians by the British authorities. Meanwhile, other refugees trying to reach England have been refouled for years by both the French and British authorities ( Freedman 2018). We do not wish of course to minimise the suffering of Ukrainian refugees or the violence that they have suffered, including sexual and gender-based violence against Ukrainian women ( Boesten 2022; Mannell 2022). The points we make should also not conceal hierarchies along the West/East divide within Europe with the existence of discourses that sexualise Ukrainian women's bodies through the construction of the figure of the "Eastern European woman". But we feel that the statements of French politicians are telling in revealing underlying racist and colonialist preferences for refugees who are perceived as white and thus assumed to be more worthy of welcome.

The current situation lays bare not only the "double standards" applied to refugees depending on country of origin and race, but also the colonial foundations of the French asylum system as a whole. As Camiscioli ( 2009) argues, the elaboration of the idea of the "French race" was intimately linked to colonial expansion with the production of a national identity that was made intelligible through reference to white authority and "civilized culture", and which integrated gendered and racialised hierarchies. The colonial period in Africa and the Americas led to the emergence of racist stereotypes of black populations and more particularly of black women, whose bodies are sexualised and bestialised ( Dorlin 2006). Colonial legacies traverse French society to date ( Blanchard et al. 2013) and this hierarchization is fundamental to all migration and asylum policies. This might be seen as particularly significant in a country where even within academic research on asylum and refugees the racial and colonial foundations of the current system are rarely mentioned ( Cosquer et al. 2022), and where the principle of Republican universalism has been consistently used to both hide and justify racialised and gendered forms of inequality and discrimination ( Cohen and Mazouz 2021). In the current contribution we wish to explore the ways in which the coloniality of the French asylum system works to deny exiled women access to welfare and social services, creating systems of racialised and gendered violence against them. By coloniality of power, Anibal Quijano ( 2000) understands the West's enterprise of racialising the world and hierarchising humanity from 1492 and the first conquests of 'America' to the contemporary forms of capitalism's hold on globalisation. The instrument of this racialised coloniality is the institution of a double standard that applies to the various populations in the world, in the societies of the global North and the global South, according to whether they belong-to quote Frantz Fanon ( 2011)-to zones of 'being' (with rights, expectations, norms) or to zones of 'non-being' (without rights, without places, without names). These racialised patterns of exclusion are at work today within French migration and asylum policies. In this article, we highlight the ways in which the State not only neglects non-white exiled women, but actively contributes to violence through its marginalizing neo-liberal policies.

Since 2015, Paris and its immediate suburbs have seen a regular process of creation and destruction of informal camps of displaced persons ( Makaremi 2018) highlighting the processes of marginalization and neglect enacted against non-citizen "others" by the French authorities in the context of racial and colonialist neoliberalism ( Bhagat 2021; Davies and Isakjee 2019). Various NGOs and media reports, as well as academic articles, have highlighted the violent police action to dismantle these camps and disperse their residents ( Barnier et al. 2019; Katz 2019; Tazzioli 2020), but these reports and studies did not address the gendered composition of the camps, which tend to be established and occupied principally by men whilst women seek other forms of shelter. Thus, the gendered and racialised forms of violence against women in exile have been invisibilised both in policy and in research. Rather than staying in camps, women in exile often "choose"/are forced-in a form of bounded agency ( Mai 2016)-to live in the street, in stations, or in other places of precarious accommodation where their existences and experiences are hidden. In this article we show how Paris can be considered as a major, and from the perspective of the women we met to some extent unexpected, site of violence. This violence is frequently invisibilised, but is nonetheless ever present in a variety of forms. Starting from the experience of Patricia D. 3, a woman from the Democratic Republic of Congo, and relating her story to those of other women we met, we examine the ongoing and multiple forms of gendered and racialised violence to which non-white women in exile are subjected. We argue that these experiences demonstrate the ways in which their precariousness is intentionally created and maintained by local and national political authorities, and in some cases reinforced by the practices of the humanitarian organisations which purport to "help" them.

Our article aims to emphasise that the structural production of gendered violence, particularly sexual violence, against racialised exiled women illustrates the coloniality of the asylum system and more broadly of the migration regime, which manifests itself in policies of exclusion, neglect and endangerment-including death. We analyse, at all institutional stages, a systematic relativisation or even denial of the sexual violence experienced by women in countries of origin and on migration routes, as well as the invisibilisation of the risk of violence 4 and of the actual violence experienced by women in the context of non-/mis-accommodation in Paris.

2. Methodology

This article is based on research carried out in various locations in and around Paris in 2020 and 2021. Elsa Tyszler carried out participant observation in retention areas at airports (zones d'attente), notably Paris-Charles-de-Gaulle, for 9 months 5 and Jane Freedman and Nina Sahraoui conducted participant observation and interviews in a refugee accommodation centre for women and families in the Paris suburbs (Centre d'Hébergement d'Urgence pour Migrants, CHUM) for 3 months. We also conducted interviews with a range of actors involved in working with people in exile-NGOs, health service personnel, volunteers and activists-, and discussions with officers of the asylum system, lawyers, interpreters and border police (in the framework of the air border research). Spending relatively long periods of time in these locations, and working with NGOs engaged in the support of exiles, facilitated our access to a wide range of actors for interviews, including some who might be perceived as harder to reach, such as border police. Because we believe that it was essential to hear the views of those primarily concerned, we decided to talk to/interview women in exile in the different research sites. Discussions and interviews with seventy exiled women from a wide range of different countries in the Global South (Ivory Coast, Mali, DRC, Guinea-Conakry, Nigeria, Mali, Senegal, Congo, Brazil, Colombia, Venezuela, Peru, Honduras, Dominican Republic, Haiti) were carried out in French, English or Spanish and were recorded when the interviewee gave permission. The interviews were conducted by us without the presence of interpreters in the languages that were common to us and these women. As part of the investigation at the French air border, women were met at legal aid clinics to which they came themselves. Discussions about the violence experienced were spontaneous. Elsa Tyszler, who was working in the field as both an NGO volunteer and a researcher, sometimes suggested that some women record or write down their stories in order to feed the advocacy work of the NGO and the research. In general, the women were keen to denounce the violence endured at the border. They simply required that the researcher/NGO would keep the story anonymous. At the accommodation centre, we first met exiled women in the context of support activities for an NGO, e.g., accompanying them to medical appointments. We then asked whether they would agree to be interviewed about their migration journey and their experiences of arrival and life in France. Again, the violence they had experienced was central in the interviews. In some cases, we have kept in contact with these women and thus have been able to understand the various experiences at different moments over the time they have been in France. This is the case, for example, of Patricia D. with whom we have been in contact since February 2020, and whose story provides a guiding thread to our article. Her story is typical of the experiences of many of the other women we met.

We are committed to conducting our research fields as feminists ( Clair 2016), abandoning the idea of the objectivity of a distant and neutral scientific method, to make explicit our positionality 6. We approach our research from a feminist intersectional perspective, seeking to make visible and highlight systems of domination based on race, class, gender, sexual orientation, amongst other categorisations. As European women of diverse heritage but often read as white 7, with legal status to live and work freely in France, we are aware of the unequal power relations that exist between us and the exiled women who we met, and of the fact that 'reciprocity' is not possible within such power asymmetric relationships. However, we believe that the "messiness" ( Hyndman 2004) and ethical challenges involved in such research do not outweigh the importance of rendering visible these women's experiences and exposing the structures of violence and intentional neglect to which they are subject. And we hope that we can make some contribution towards this in our research and in this article.

3. Racist Foundations and Neoliberal Development of Asylum Policies

Colonialism has been shown to be central to the development of modern welfare states ( Bhambra and Holmwood 2018) but accounts of development of these welfare states most frequently omit discussion of colonialism and racialisation through a separation of the "economic" sphere from "political" or "social" issues. However, we need to understand the centrality of colonialism to understand current debates on race, asylum and immigration and to see that these are not "new" questions raised by recent migration "crises" but rather continuations of historical debates over who is a "legitimate" or "deserving" member of this welfare state. As others have done previously, we do not understand asylum as an ad-hoc reality but as part of a broader management of migration, against the background of racialised migrants being construed as a threat to post-modern Europe ( Jubany 2020). One way to attend to the coloniality at the crossroads of the welfare state and the asylum system is to render visible the imperialist assumptions that underpin contemporary border politics ( Guttierez Rodriguez 2018; Hernandez 2018; Walia 2021). In Undoing Border Imperialism, Harsha Walia ( 2014) analyses how the history of settler colonialism fails to be critically connected to contemporary migrations which reproduces an imperialist and Western-centric understanding of global mobilities. She contends that the notion of border imperialism encapsulates:

"First, the mass displacement of impoverished and colonized communities resulting from asymmetrical relations of global power, and the simultaneous securitization of the border against those migrants whom capitalism and empire have displaced; second, the criminalization of migration with severe punishment and discipline of those deemed 'alien' or 'illegal'; third, the entrenchment of a racialized hierarchy of citizenship by arbitrating who legitimately constitutes the nation-state; and fourth, the state-mediated exploitation of migrant labor, akin to conditions of slavery and servitude, by capitalist interests."

In our article we seek to acknowledge that contemporary Western asylum policies are anchored in the modern histories of human mobilities that have been fundamentally unequal and racialised. Following the invitation of connected sociologies to historicize sociology ( Bhambra 2014), we share the conviction that 'if colonially derived conceptions of differential humanity are vital in understanding the history of the right to asylum, contemporary critique of exclusionary and punitive asylum policies must also include some consideration of these histories' ( Mayblin 2017, p. 114). Mayblin thus warns us that reading contemporary restrictions on asylum in Europe as a new phenomenon that would depart from the Convention's universalist spirit actually conceals the fact that a racialized understanding of humanity shaped its founding negotiations. Drawing on archival research, she demonstrates indeed that the British understanding of the right to asylum is anchored in an exclusionary definition of who gets to be a 'Man' and bearer of rights with populations outside of Europe being deemed unworthy of these rights in the post-war era. During the negotiations that led to the adoption of the 1951 Geneva Convention, the British delegation to the UN sustainably advocated for an exclusion of the colonies from the realm of the Convention's applicability. These racist logics underpin the workings of asylum to date, as argued by Olga Jubany, 'the racialisation of the "other" is not only present in the obscure legacy of asylum, but it is also critical in today's processes of asylum constructions, asylum policies and social exclusion' ( Jubany 2020, p. 364). However, in French historiography of the asylum system, such historical continuities are rarely foregrounded.

"Why are some foreigners more legitimate than others?" "What is the basis for the distinction between 'political refugees' and 'economic migrants'?" ( Akoka 2020). In her pioneering work on the social history of the administration of asylum in France, Karen Akoka examines the practices of categorisation of asylum applications by the agents of the French Office for the Protection of Refugees and Stateless Persons (Ofpra). She shows that, far from being neutral responses to objective needs, definitions of the refugee, since the construction of the international category between the two world wars, have been politically situated. The understanding of this category changes according to political priorities, and shifts in the international balance of power and the specific ideological stakes of a period. Her work highlights how the politicisation of asylum in France is expressed differently in different historical contexts, depending on whether it was subordinated to diplomatic policies during the Cold War or whether it was aligned with immigration control policies from the 1980s. Despite the richness of her study, Akoka does not mobilise the concept of race, which could be brought to centre-stage to analyse the French asylum system. Indeed, although she points out the distinction made between certain asylum seekers (particularly through the example of the colonial categories of "Indochinese" 8 and "Zairians" 9 applications, the former embodying legitimate refugees and the latter fraudulent asylum seekers), the word racism only appears once: to say that we need to look beyond processes of racialisation to understand what is at stake in the "differential treatment" ( Akoka 2020, p. 337) of asylum seekers. But Akoka does not propose any analysis in terms of race relations. In contrast, other researchers working in France do not hesitate to point out "the continuities between the contemporary set-up of asylum regimes and the ongoing racial oppression at the hands of states and institutions to which the majority of refugees are exposed" ( Giametta and Havkin 2021, p. 109).

Following a historicized and critical approach we contend that asylum seekers, as a position and category, are produced by specific policies and that their legal precariousness and material deprivation result from political choices that have inscribed asylum into the realm of assistance and dependency (for instance through the absence of a right to work for varied but most often prolonged periods of time). Picozza argues in this regard that "refugeeness" is socially produced through practices of management and humanitarian assistance, variously led by the state, NGOs and self-organised support groups that inscribe refugees in repressive, instrumental or disempowering relationships' ( Picozza 2021, p. 7). We depart from accounts that portray asylum seeking women as intrinsically vulnerable and explore how vulnerabilities are produced by the dispossessions that asylum policies enact. In this perspective, the notion of coloniality of asylum reveals how the figure of the racialised refugee is fundamentally constructed as Other:

"The concept of the coloniality of asylum illuminates the racialising border-work of the 'refugee' category, which naturalises some people on the move as objects of European management, charity or, at best, political engagement. This fundamental objectification at the heart of the coloniality of asylum is predicated upon the purported incompatibility of 'Europeanness' and 'refugeeness' as conditions that, spatially, temporally and socially, are utterly Other."

Other authors also propose a reading of the asylum system based on feminist and queer theories, ( Danisi et al. 2021) and highlight the femonationalist ( Farris 2017) and homonationalist ( Puar 2007) logics at work in assigning protections based on criteria of gender and sexuality. Calogero Giametta ( 2018), for instance, elaborates on the discrepancy between the widening of refugee protection, through the inclusion of gender identity and sexual orientation as grounds for asylum, and the increasingly restrictive practices that define the refugee granting process in France and the UK. In a more recent article with Shira Havkin, they highlight the double-bind in which queer asylum seekers in France are situated, "namely, having to tell a seemingly genuine story about themselves and fitting into preconceived ideas about identities and places. In doing so, they are made to reinforce the flattening picture of France as a homogenous safe space for queers, and of their countries of origin as inherently and culturally homo/transphobic" ( Giametta and Havkin 2021). The authors equally point out that for many of the respondents they met during their fieldworks, finding a job and decent housing turned out to be "particularly difficult for (often racialized) migrants who are structurally positioned in the lowest ranks of a society organized through hierarchies of nation, race, sex and gender expression" ( Giametta and Havkin 2021). Feminist research on gender in the asylum process highlights similar challenges for racialized women asylum seekers who often struggle to find protection despite the promises of EU countries to defend the rights of women faced with gender-based violence ( Canning 2019; Freedman 2015; Gerard 2014).

The analysis of the material situation of asylum seekers in France supports these arguments. When seeking asylum in France, applicants are not allowed to work for a period of 6 months, after which they can apply for a work permit if their application has not yet been treated. However, they are given no information about this right and the procedure of application for a work permit is so complicated that it remains a right on paper only. Most of our interviewees were only able to work in informal jobs where they risked exploitation, or remained dependent on state welfare payments which as we explain further below, are not sufficient to cover their essential needs. Asylum seekers are in theory entitled to a small financial benefit to be able to sustain themselves, the Allocation pour Demandeur d'Asile (ADA), that amounts to 6.80 euros per day and 14.20 euros if no accommodation is provided. Yet, in practice many of the women we met had received neither accommodation nor financial support. Some of them did receive financial support without accommodation or were able to find temporary emergency accommodation while not receiving any benefits. Social workers highlighted that financial support payments were regularly suspended for many asylum applicants, for instance after missing an official appointment, which was often caused by the lack of a stable address. This withholding of payments is another way of rendering life "unlivable" for asylum seekers, part of a system which provides a mirage of welfare support which is never obtainable on a sustainable and long-term basis ( Coddington et al. 2020).

Within racial neoliberalism's structures of discipline and control, immigration is presented as a "threat" to the welfare state as a part of neo-imperial structures of exclusion ( Kapoor 2013). This then is used to justify the withdrawal of welfare services for refugees who, if they are allowed to stay, must turn themselves into "productive members of society" ( Bhagat 2020) in order to survive. We can understand this exclusion of refugees from welfare provision as part of the logics of racial capitalism ( Shilliam 2018) which establishes and reinforces divisions between the "deserving" and the "undeserving", where the "undeserving" include racialised subjects and colonial "natives" ( Bird and Schmid 2021). As Bhagat argues: "Refugee governance takes place in a raced market that is largely distinguished by exclusion; however, even when refugees are accepted their survival falls outside the purview of state welfare" ( Bhagat 2020, p. 2). In the case of France, neoliberal restructuring of the State must also be understood in conjunction with the (re)assertion of a particular form of Republican universalism, which foregrounds citizens' equality within the nation, one that supposedly transcends any other form of belonging or affiliation to any group or community. Anyone who is perceived to threaten this unity is then cast as a "danger" to the very existence of the Republic itself and thus becomes a legitimate target for State violence and neglect.

The withdrawal of welfare for refugees forms part of what Canning ( 2017) calls a "degradation by design", the creation of a hostile and indeed dangerous environment which produces various forms of racial and gendered violence. Similarly to the use of social policies as a means of migration control ( Ataç and Rosenberger 2018; Ratzmann and Sahraoui 2021), social welfare has also become an instrument of regulation of refugee protection ( Billings 2022). We stress here that the State plays an active role in creating violence, a role which has previously been described as institutional abandonment ( Pinelli 2018) or deliberate indifference ( Davies et al. 2017). The withdrawal of access to welfare and social services, including housing, welfare payments or health services, all form a part of this system of structural violence which leads to increasing levels of harm or even death for refugees.

Furthermore, the violence engendered by contemporary migration and asylum policies is inherently gendered. Previous research has shown the gendered nature of necropolitical governance of borders manifest in the disproportionate death of women at these borders ( Pickering and Cochrane 2013). In the early 2000s, Jane Freedman warned of the gendered effects of European asylum policies, accentuating the vulnerability of exiled women:

"Women who are granted asylum face many obstacles-from their journey to reach a European state, to the difficult conditions imposed by internal reforms of the asylum system. These difficulties are only compounded by the continuing desire of European governments to reduce the number of asylum seekers reaching their countries, and the number of those applicants who are ultimately granted refugee status. If European states continue to pursue stringent policies to reduce the number of refugees on their territory, then it is likely that the situation of these women will only get worse."

Nearly 20 years later, this hypothesis is certainly borne out, as the rest of this article shows. In this context, racialised exiled women have increasingly become a target of State repression. In the following sections of the article we point to the gendered nature and effects of the racialised violence exercised by the French State against women in exile, refusing to protect them and exposing them to physical harm through the refusal of access to welfare and social services.

4. On (Refused) Entry to France. The Onset of State Violence at the Border

In February 2020, one of us met Patricia D., a 25-year-old Congolese asylum seeker, while she was detained at the Paris Orly airport. She had arrived from Athens and was placed in the "zone d'attente" at the airport by the French border police. The zones d'attente, set up in airports and at internal borders in France are areas of deprivation of liberty for foreigners who are refused admission to the national territory. They serves the purpose of migration control through the tools of confinement and deportation ( Makaremi 2010; Frétigny 2013). Initially an informal practice of the French administration based on the idea that the persons concerned were not yet on French territory, administrative confinement at the border was ratified by a law of 1992. The zone d'attente was defined as an area that "extends from the points of embarkation and disembarkation to those where checks on persons are carried out" and which "may include, on the port or airport premises, one or more places of accommodation providing hotel-type services to the foreigners concerned". This definition has been extended ever since, showing the elasticity of the border. The gendered dimension of border control and the experiences of women at air borders remain underexplored. Yet they are affected by racialised and gendered policing practices that produce different figures of "migration risk" to combat at the border ( Tyszler forthcoming). But the "combat" is not only led by the police. The research conducted shows that the violence experienced by women who are illegalized at the air border also emanates from the asylum system, and this is particularly true for women claiming protection on the grounds of gender-based violence.

The research carried out shows that the specific asylum system at the border leads to the almost systematic failure of applications related to gender-based violence. This "border asylum system" is characterised by ultra-rapid interviews and response procedures. OFPRA "Protection officers" working for the border asylum mission 10 have 48 h to organise an interview with a person and issue an opinion. "At the border, it is not a question of examining the asylum application on its substance but only of identifying the claims that are manifestly unfounded" explained the head of mission in an interview in 2021. The interviews last on average 30 to 45 min (not exceeding one hour) and are conducted in person, by phone or videoconference according to facilities available at each of the airports 11. The OFPRA staff is often poorly trained in gender issues as we witnessed when accompanying people during these interviews, and only certain forms of gender-based violence are recognised (see Freedman et al. 2022). Moreover, the interpreting service during the asylum interview is often of abysmal quality, particularly with regard to accounts of gender-based violence-as for example on one occasion, when a woman said that she had been "enslaved" in the house where she was confined and sexually abused, and the interpreter (English/French) translated this as: "she was doing the housework" 12. As former and current OFPRA protection officers told us in interviews, the border asylum mission is often considered, internally, to be a "makeshift" system, lacking adequate resources and investment compared to the main OFPRA services established within France. The women we met in the zones d'attente who had fled sexual violence had generally been re-traumatised by their experience at the air border. The vast majority of them had their application for asylum rejected at first instance, and often experienced their visit to the administrative court for their appeal as yet another act of violence due to the expeditious hearings, the contemptuous, disdainful or accusatory behaviour of lawyers and judges, or due to poorly trained interpreters who are uncomfortable with translating accounts of the sexual violence they recount, as we were able to observe at hearings at the administrative court in Paris.

"Mrs S.'s hearing begins. As the interpreter-a man in his sixties-translates what the judge is saying to her, Mrs S. (who is Nigerian) says that she does not understand his English well. The interpreter, visibly offended, retorts that he speaks perfectly normal English, and that people usually understand him. He ends up saying that he will do what he can, that he will speak slowly. (...) As the woman begins her story, the interpreter becomes irritated because he has difficulty understanding her. The judge suggests that she speaks into the microphone herself, as he can understand English. Mrs S. speaks very softly, Madame spoke too softly, the interpreter becomes annoyed and very intimidating towards Mrs S., to the point of saying out loud, into the microphone, "I don't understand anything! You're mixing everything up! It's not clear at all" (in English). The judge then retorts that the man is going beyond his role as an interpreter and asks him to stick to his role. It doesn't get any better, the interpreter is very aggressive towards her, to the point that, sitting right behind and outraged by the interpreter's behaviour, I let out a "stop intimidating her!"

(Elsa Tyszler's fieldnotes, Paris Administrative Court, 17 February 2020)

This example shows that interpreting at hearings can be yet another obstacle and even a form of violence-in this case-for women victims of sexual and gender-based violence. After an OFPRA interview where the quality of the interpreting had already completely skewed Ms. S. story, she found herself at the court with an interpreter who "doesn't like" having this kind of cases (as he later confided to the researcher), not at all comfortable translating the words of a victim of sexual violence. The asylum application of this woman, who was forced to make public the sexual violence she had experienced for a long time, was therefore completely distorted by the words of an interpreter, for the second time. Her appeal was rejected and she was forced by the border police to board a plane from Paris CDG to return to the place she had fled.

When we met Patricia in the zone d'attente of Orly airport, she was six months pregnant. She explained that she fled the DRC in 2019 because of sexual violence and other political reasons related to her family. She travelled to Europe through Turkey and spent two months in "terrible conditions" in the Samos camp in Greece. After escaping from this camp, she was forced to live on the streets of Athens for six months and was, again, sexually abused. She then sought to flee Greece and asked for help to go to France. This is how she arrived at Orly airport in 2020 and asked for asylum. When we spoke with her, she had just had her interview with the border asylum mission. She talked about the poor conditions in which this interview was carried out. She had to tell her story via video conference, sitting in front of a computer in a tiny room in the zone d'attente guarded by police officers. The video connection frequently cut out, making it hard to hear the questions put to her, and hard to tell her story in a fluid manner. Her first request was rejected as "manifestly unfounded". She therefore lodged an appeal and ended up in the Paris Administrative Court, a hearing that we could observe:

"During the very short hearing of Ms D., her experiences as a victim of sexual violence from a very young age, in a family setting, then in a religious setting, then in the course of her exile, are made public, stated at the microphone, in a context in which Ms D. is surrounded by unknown people and mainly men: civilians and police officers. Then, these experiences of sexual violence are publicly questioned with a very explicit challenge to their potential veracity by the administration's (male) lawyer, who thus accuses Ms D. of being a possible liar. The victim of sexual violence becomes the accused: she is accused of not giving enough details about her multiple aggressors and of never having tried to file a complaint (whether she was a minor or an adult) in DRC, and therefore of possibly lying and not having really experienced the violence."

(Elsa Tyszler's fieldnotes, Paris Administrative Court, 2020)

Patricia's appeal was rejected by the judge. The day after, in tears, she said that she was shocked by the fact that the sexual violence she had experienced had been called into question, and that she was truly offended by the words of the administration's lawyer against her. The violence of this hearing, for Patricia, also owes to the fact that she could not answer for herself to the allegations of lies and to the denial of her experiences and her suffering, since she was reduced to silence. It was her (male) court-appointed lawyer who responded, briefly, to the attacks of the (male) lawyer of the administration, before the (male) judge.

Patricia's case illustrates how women's experience of the border can be experienced as a constant questioning of the sexual violence they have suffered. The research revealed various different places and actors involved in this violence, a violence played out through casting doubt on the veracity and existence of the sexual violence that women have experienced. This violence occurs during the OFPRA interview, in the decision by the Ministry of the Interior to reject the asylum application, during the hearing at the administrative court, and it can also occur in the framework of interpreting services when the women do not speak French.

After her appeal was rejected, Patricia was threatened with deportation by the border police at Orly airport. While visiting the detention area, we asked a senior border police officer about Patricia, and her risk of being deported despite her advanced pregnancy. He replied that:

"Pregnant women come by plane. So why, after twelve days in the Zone d'Attente, can't they leave by plane? If they came by plane, they can leave by plane. (...) Some come pregnant, it's a strategy".

(Interview with Border Police, Orly airport zone d'attente, 2020)

The comments of this police officer show that pregnant women are not exempted from the repressive policy of confinement and deportation implemented at the border, but moreover, they are suspected of using their pregnant bodies for strategic purposes, which would reinforce their categorisation as a reprehensible "migratory risk". Many women claiming asylum on the basis of gender-based violence are eventually forcibly put on planes by the police, after their asylum claim is deemed "manifestly unfounded" at the border. Some of them are also physically abused by the border police during their forced boarding, as several women testified-survivors of violence, beaten again, symbolically and materially-, this time by the French asylum system and the police dealing with those rejected.

After several refusals to embark on her deportation plane from Paris Orly, Patricia was finally transferred to police custody and then to prison, as refusing to board is an offence under French law governing the zone d'attente. After a few days in the Frêne prison (near Paris), a judge "took pity on her"-as Patricia tells us-and let her out. Patricia began a period of forced wandering in the streets of the French capital, seven months pregnant. As we have argued elsewhere ( Freedman et al. 2022), our observations at the air border, as well as those carried out in the Parisian region, show deeply anchored but highly problematic patterns within the French State's position regarding the rights of non-white migrant women and their implementation: "protection through detention and deportation, emancipation through street life". In the following section, we explore the circumstances in which exiled women find themselves living on the streets and shed light on the gendered violence that these situations entail.

5. Surviving on the Streets of Paris: The Gendered Violence of Institutional Abandonment

During our study we found that even pregnant women asylum seekers or women with young children had experienced homelessness and had slept on the streets. The only recourse that they have to find accommodation is to go through the 115 emergency accommodation system. The emergency accommodation system run by the Samu Social consists of the 115 phone line which those in urgent need of accommodation must call in the hope of being allocated a place in an accommodation centre or "social hotel". However it is very difficult to get through on the phone to speak to someone and people report spending many hours waiting for someone to pick up the line. Even when they do get through there is such a paucity of accommodation available that their request is likely to be unsuccessful for several weeks or months.

Like many others, Patricia lived on the streets of Paris for a month despite making daily calls to the 115 emergency housing line. After spending days calling with no response, she eventually managed to get through to speak to someone. After having listened to her request, the person on the other end of the line asked her to fax proof of her pregnancy to prove her situation. It was only thanks to her contacts in migrant support associations that she managed to provide the required document. But even once she had done this, Patricia was not allocated accommodation. It was only on the eve of the first lockdown in France during the COVID-19 pandemic that she was eventually housed-like many homeless people at the time-in a dilapidated and dirty hotel. During the month she spent as a pregnant woman living in the streets, she slept mostly in the corners of Parisian train stations. She was also occasionally housed for a night in evangelical churches. Despite the extreme precariousness in which she was left, Patricia struggled to start her application for asylum in France and to seek ante-natal care at the hospital.

As Patricia's experience illustrates, when exiled women do manage to arrive in France, a major form of violence is the lack of sufficient or adequate accommodation. Patricia's homelessness is not uncommon, but rather a normal situation for asylum seekers in Paris. A former employee of the Samu Social who coordinated the 115 emergency housing service telephone line, explained to us that often after a whole day of responding to phone calls, she had not been able to find accommodation for a single person due to lack of available space. 13 She also explained that the places available were divided between various "groups" of homeless people, and that "local" Parisian homeless people, directed to the 115 by the Paris municipality, would have priority over "migrants" who found themselves living in the streets. This according to a clearly assumed policy of prioritising those who are assumed to be most "deserving" of accommodation i.e., "native" French citizens, demonstrating the racist/colonialist logic of housing allocations. The lack of accommodation thus produces a particularly important form of gendered "vulnerabilisation" for asylum seeking women ( Freedman 2017, 2019; Grotti et al. 2018). This institutional neglect is anchored in the racist foundations of European asylum in that the abandonment of certain lives, certain bodies-those othered by their state of racialised refugeeness-is politically acceptable and has in fact become the norm.

France received around 138,000 first time asylum applications in 2019, and around 81,000 in 2020 (a figure which was reduced because of the COVID-19 pandemic and the added difficulties of arriving in Europe when borders were largely closed to third country nationals). However, only a minority of these asylum applicants are able to access some kind of official accommodation. La Cimade, one of the main NGOs working with asylum seekers and refugees, states in its annual report on the reception conditions for asylum seekers that only two fifths of asylum seekers get a place in any kind of accommodation centre. This means that around 70,000 people are trying to find accommodation for the 7.40 euros a day which they are officially allocated as an asylum seeker to cover for accommodation expenses, whilst around another 30,000 people have no accommodation and receive no financial benefits at all 14. Within this system, families, single women and women with children should be prioritised for allocation of accommodation according to NGOs operating on the ground, but due to the huge lack of places, many still find themselves sleeping on the streets, which engenders a high risk of physical and sexual violence. A psychiatrist at the CHUM (emergency accommodation center) recounted for instance the case of a woman who had been raped whilst sleeping at the Gare du Nord railway station, and had arrived at the Centre pregnant and HIV positive. 15

The women we met inside this emergency accommodation centre had generally experienced living on the streets in Paris before being housed in the centre, and for them this represented an ultimate form of violence after journeys that were all systematically imbued with several forms of gender-based violence. "I didn't know that people were sleeping outside in France". This sentence was pronounced by Inaya who came from Guinea Conakry. A political activist, Inaya fled when her fellow opposition members began to be persecuted. Inaya spent her first night in Paris at the Gare du Nord train station, she called 115 but no one picked up. Her suitcase was stolen. The next day she managed to get someone on the phone but was told that there was no possibility for any emergency accommodation. Finding herself in the streets in France was a shock: "Here it's worse because you don't expect it". Surviving very difficult material conditions is something that Inaya had to face throughout her journey, but always with the hope of a significant improvement once she would be able to file her asylum application. Inaya had for instance spent several months in the forest camps in the north of Morocco, near the Spanish enclave of Melilla (for a gendered analysis of life in these camps, see Tyszler 2019). Once in the enclave, Inaya was housed in a centre with collective rooms (7 people were staying in hers) and strict regulations (for a gendered study of life inside this centre, see Sahraoui 2020): "I thought that in France I would have this at least, something like a CETI [Temporary residence centre for immigrants]". But in France, she had nothing for many weeks and was only given a place in an emergency accommodation centre 6 months after her arrival when she was already in an advanced state of pregnancy. Aissata, aged 26, from Mali, was also homeless for several months. She spoke of it in terms similar to Inaya's words: "Being on the street when I arrived was a shock, it is part of my hardest story". This life on the streets in France can have deleterious effects on the mental health of asylum-seeking women, and the NGO actors witnessed daily the detrimental consequences on mental health when the hope of an improvement of their living conditions fades away. It is necessary to perceive not only the violence directly caused by the lack of accommodation and food, but also the symbolic violence-and its material consequences-of the social indifference that women asylum seekers encounter when they reach the French capital. The lived experiences of exiled women in Paris demonstrate that institutional abandonment paves the way for multiple forms of violence that life in the street unavoidably engenders.

All migrant support organisations we met unanimously highlighted that the lack of accommodation represented the greatest emergency for asylum seeking women. Indeed, the lack of shelter engendered a series of risky situations for these women: whether they found themselves in the streets or in precarious accommodation arrangements, these situations exposed them to sexual violence every day. All NGOs, those long established and those recently created, observed that the failures of the reception system produced institutional violence in that the shortcomings were structural and continuously reproduced. The Comité pour la santé des exilés (Committee for the health of exiles, Comede) noted that the accommodation situation had clearly deteriorated, judging that at the beginning of the 2010s there were some possibilities for emergency shelter, whereas for the last 4-5 years the situation has become very difficult, even for pregnant women. Among Comede's patients in 2019, out of 144 cases, 15% of the rapes were suffered in France. The lack of accommodation is such that some associations are forced to take in a few people in their premises for emergency shelter on certain winter evenings. Several of the women we met at the emergency accommodation centre had found themselves on the streets while pregnant, some for several months. Healthcare professionals at public health services, such as the free Information, Screening and Diagnostic Centre (Centre Gratuit d'Information, de Dépistage et de Diagnostic, CeGIDD), also noted a "massive" exposure to sexual violence on arrival in France for women, with many instances of this violence unfolding in the context of becoming dependent on men to have a roof over their heads or some food. This denial of rights leads indeed to situations of "transactional sex" for asylum seeking women ( Freedman 2016) who are accommodated "in exchange" for sexual services. Our interviewees at the CeGIDD and the Samu Social emphasised that women who suffer this type of violence are also subject to a strong feeling of guilt which can aggravate these spirals and increase their vulnerability. These situations of precarious housing are inscribed within a strong power relationship between the host, often a man, and the woman being "hosted", leading to multiple forms of exploitation. In the context of the specific care pathway for sexual health at Avicenne hospital in the Paris region, the women who consulted also reported forced domestic work and very poor housing conditions. A healthcare professional recounted for instance that one of the patients suffered rat bites leaving scars on her body because she was living in a cellar.

Volunteers, NGO employees and healthcare workers often tried to use the 115 phone line to secure shelter, with little success. The Ecological Laboratory (LEO), an association which provides shelter for women with young children informally, also observes daily that very few requests are successful. They foreground furthermore that overnight stays may be offered in the evening and involve long journeys for young women and their newborns. This permanent mobility is problematic in several respects: on the one hand, transport in the Paris and Ile-de-France region is expensive and on the other hand, the health of women who have just given birth may be affected. For example, one woman accompanied by LEO had received an offer of a place in temporary accommodation by text message at 9.30 p.m. one evening, another had been sent across the city to a hotel which turned out to have been closed for several days. Further, the living conditions in many of these social hotels are inadequate-dirty and dangerous-and with no cooking facilities provided in the rooms. A former SAMU employee explained to us that they have little control over the managers of the hotels and that even when there have been reports of sexual violence committed by managers or other hotel staff, no action is taken, other than perhaps moving the complainant to another hotel.

For some women, there is the possibility of obtaining a place in an emergency accommodation centre such as the CHUM. But even for these "lucky" ones, there is no possibility of stability or any form of permanence. The dispersal system put in place by the French State entails moving asylum seekers away from Paris and its surrounding areas. So those accommodated in an emergency centre will normally be relocated to another area of France (often away from a large city or metropolitan area) within a short time. For many this relocation can prove traumatic and difficult, especially if they have started medical treatment or have made contacts with social services in Paris. But as interviewees working in the CHUM explained to us, it is impossible to refuse this relocation. If any asylum seeker does refuse then they will again find themselves homeless, and in addition, their welfare benefits will immediately be stopped.

In addition to lack of accommodation, women face destitution due to the withholding of State welfare benefits. Patricia spent several months with no income before eventually obtaining the basic asylum benefit (ADA). But then this aid was suddenly stopped after her initial asylum claim was rejected, even though she had appealed this decision, leaving her again with nothing. She was involved in a permanent struggle to obtain the benefits officially due to her, and for months had no income or resources, other than money donated by friends or solidarity networks. Managing to feed herself and her baby daughter, to buy baby milk or nappies, was a daily struggle. Patricia's experience is in no way unique and again demonstrates the normalisation of racialised politics of withholding welfare and pushing asylum seekers into poverty and destitution ( Mayblin et al. 2019; Vickers 2021) with their only source of support coming from NGOs-caught up to varied degrees in the State's politics of destitution and often relying on hierarchical relations of dependency between helpers and beneficiaries-and/or individuals in solidarity.

6. Conclusions

More than two years after her arrival in France, Patricia is living in a "social" hotel with her two-year-old daughter, in a small room, with no cooking facilities and no place for her daughter to play. Her asylum claim having been refused both in the first instance and at appeal she has no access to any financial support from the French State and no money to buy food or other necessities for herself and her child. She will have to wait at least five years before having any chance of even applying for a legal residence status in France.

As a pregnant woman, who fled her country because of sexual violence and persecution related to the political activities of her family, Patricia should have embodied the paradigmatic figure of the female asylum seeker who France protects in virtue of its position as a supposed pro-women's rights democracy and land of asylum. But Patricia has never received protection from any part of the French State. She and her child have been constantly (re)placed in danger in France. She survives and manages to bring up her daughter thanks to her strength and determination in the face of the State's policy of deliberate neglect and harm of racialised exiles like her.

The experiences of women asylum seekers we have met in Paris, both at the air border and in an emergency accommodation centre, demonstrate a deliberate institutional abandonment anchored in racist understandings of whose lives matter and are worth protecting. Welfare in the context of asylum is thus weaponized as a deterrence mechanism, whereby minimal biopolitical protection is enshrined in law but in practice is not complied with, as experienced by racialised exiled women and as witnessed everyday by numerous NGOs.

In June 2022 a group of women of West African origin, many with young children, held a demonstration in front of the Paris Town Hall to protest against the lack of accommodation for asylum seekers in the capital 16. The demonstration was triggered by a refusal to house them in a new accommodation centre established for Ukrainian refugees, which was at the time, nearly empty. Despite the availability of nearly 600 accommodation places in this centre, the French Government refused to accommodate these women and their families there, arguing that this was "reserved" for Ukrainians. The French State had clearly decided that there were two categories of refugees: white and "European" Ukrainians for whom places must be held open even if these places were to remain empty, and racialised "others" who were not "deserving" of these places and should thus be left to sleep in the streets. This clear demonstration of the racist-colonialist nature of the French welfare system is contested by the women demonstrators who mobilised to defend their rights in the face of this State violence.

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Asylum, Racism, and the Structural Production of Sexual Violence against Racialised Women in Exile in Paris

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The recent arrival of refugees from Ukraine has thrown into sharp focus the racialised colonial underpinnings of the French asylum and refugee system, as the open-door welcome afforded to Ukrainians, supposedly “closer” to the French population, highlights the rejection and marginalisation of “others” who seek refuge in the country.

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Chapter 27: Trafficking in Human Beings in  EU Immigration and Asylum Law  

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Chapter 27: Trafficking in Human Beings in  EU Immigration and Asylum Law  

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Authors: Steve Peers and Nicola Rogers
Council Framework Decision on combating trafficking in human beings

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"Chapter 27. Trafficking in Human Beings" published on 01 Jan 2006 by Brill | Nijhoff.

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Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”)

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Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”)

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By Ruma Mandal

Page 62: Issues Particularly Affecting Women and Children

Page 73: Vulnerable non-nationals (e.g. single pregnant women, disabled persons, women victims of domestic violence) are sometimes recognised as refugees for humanitarian reasons even if they do not meet the criteria in the statutory refugee definition.

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Gender and the boundaries of international refugee law: Beyond the category of ‘gender-related asylum claims’ - Christel Querton

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Gender and the boundaries of international refugee law: Beyond the category of ‘gender-related asylum claims’ - Christel Querton

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Overall, this article claims that the conceptualisation of a legal obligation in international law to interpret the refugee definition in a way that takes gender into account is inhibited by the development of a distinct category of ‘gender-related asylum claims’ within gender and refugee law scholarship.
Consequently, this article presents a challenge to the borders implicit in the category of ‘gender-related asylum claims’ by revisiting the boundaries of international refugee law.

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PRFDHR Seminar: When does Migration Law Discriminate against Women?, Dr. Catherine Briddick

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PRFDHR Seminar: When does Migration Law Discriminate against Women?, Dr. Catherine Briddick

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Also published article here: https://www.cambridge.org/core/services/aop-cambridge-core/content/view/743ACF142C9D9276C331424A2A466372/S2398772321000507a.pdf/when-does-migration-law-discriminate-against-women.pdf

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PRFDHR Seminar: When does Migration Law Discriminate against Women?, Dr. Catherine Briddick | Yale MacMillan Center Program on Refugees

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Home > Videos > PRFDHR Seminar: When does Migration Law Discriminate against Women?, Dr. Catherine Briddick

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ONE STEP FORWARD, TWO STEPS BACK? INTERPRETING ‘PARTICULAR SOCIAL GROUP’ IN THE EUROPEAN UNION - Christel Querton

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ONE STEP FORWARD, TWO STEPS BACK? INTERPRETING ‘PARTICULAR SOCIAL GROUP’ IN THE EUROPEAN UNION - Christel Querton

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The article tests the claim of feminist scholars that concerns about gender have been marginalised in refugee law, by exploring the interpretation given to the concept of a ‘Particular Social Group’ set out in the 1951 Refugee Convention. It is argued that recent practice at the supranational level in the European Union has contributed to the deterioration of refugee protection standards for women seeking asylum from gender-based violence. However, the article demonstrates that a human rights-based approach to the interpretation of ‘Particular Social Group’, which is supported by extensive examples of good practice in individual Member States, has the potential to redress this.

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A. Definition of 'Particular Social Group' in EU Law

Article 10(1)(d) of the recast Qualification Directive provides that:

Member States shall take the following elements into account when assessing the reasons for persecution: a group shall be considered to form a particular social group where in particular:

- members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

- that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

... Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.

When the European Commission first proposed the Directive, it clearly considered that, as a minimum, a certain 'fundamental characteristic' such as 'gender' could be sufficient to constitute a 'Particular Social Group'. Although the term 'gender' is used, it is clear from the Commission's analysis relating to women and gender-based violence that the Commission actually meant 'sex'. Furthermore, the Commission said that the term 'Particular Social Group' 'was deliberately drafted in an open way and needs to be interpreted in a broad and inclusive manner'. The Commission considered that women at risk of gender-based violence because of their 'gender' constituted a group of 'individuals who are treated as "inferior" or as "second class" in the eyes of the law, which thereby condones persecution at the hands of private individuals or other non-state actors, or where the State uses the law in a discriminatory manner and refuses to invoke the law to protect that group'.

The two limbs of the provision reflect the historical interpretation of 'Particular Social Group' based on the protected characteristics and the social perception approaches. A literal interpretation of Article 10(1)(d) indicates that the two limbs of the provision should be read as alternatives. Although the term 'and' is used to connect the two approaches, the use of 'in particular' suggests that these are illustrative of what might constitute a 'Particular Social Group' and they do not have to be read as cumulative requirements.

EU law also requires that the terms of Article 10(1)(d) be interpreted by placing the provision in its context, and in light of the objective of the Qualification Directive as a whole. It is noteworthy, that Article 9(2)(f) of the Qualification Directive, which concerns acts of persecution, acknowledges that persecution can occur for reasons of sex. As has been seen, although the English version of the Qualification Directive notes that acts of persecution can take the form of 'acts of a gender-specific ... nature', the French language version more explicitly implies causation, referring to 'les actes dirigés contre des personnes en raison de leur genre'. This view was adopted by the Belgian Council for Alien Law Litigation, which determines asylum appeals against administrative refusals, when it read Article 10(1)(d) in light of Article 9(2)(f). The Belgian Court relied on its national legislation transposing Article 9(2)(f) of the Qualification Directive as an indication that sex, being an innate and immutable characteristic, was a sufficient characteristic for there to be a 'Particular Social Group' without anything further.

The view that sex as a protected characteristic is sufficient to constitute a 'Particular Social Group' is supported by the UNHCR's first two Guidelines on International Protection concerned with gender-related claims for asylum and the definition of 'Particular Social Group'. The UNHCR endorsed both the protected characteristics and the social perception approaches but indicated they should be treated as alternatives. As will be discussed in the last section, where women are at risk of gender-based violence, their sex would satisfy the protected characteristics approach and gender dynamics would satisfy the social perception approach. Thus both Guidelines clearly endorse the view that sex can be within the ambit of 'Particular Social Group' with women being a clear example of a 'social subset' defined by innate characteristics. The Gender Guidelines also suggest that it is those innate characteristics that identify them as a distinct group in societies where they are treated differently to men: 'their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries'.

Consequently, the UNHCR notes in its Guidelines on Particular Social Group that women have been recognised as a 'Particular Social Group' under either limb, namely the protected characteristics approach or the social perception approach. In addition, UNHCR notes there is often an overlap between the two approaches and women can constitute a 'Particular Social Group' under either. The judiciary in various jurisdictions, including in Belgium, Spain and the UK, have endorsed UNHCR's guidelines and recognised the proposition that women are a clear example of a 'Particular Social Group' defined by innate characteristics and who are often treated differently from men.

1. CJEU interpretation

However, the CJEU decision in the case of X, Y and Z has been read to mean that the two limbs of Article 10(1)(d) must be read cumulatively rather than as alternatives. The central issue in the case concerned the role of laws criminalising same-sex relationships in the recognition of refugee status. The CJEU was asked for a preliminary ruling on the interpretation of 'acts of persecution' read in conjunction with Article 9(2)(c) and the definition of 'Particular Social Group' in Article 10(1)(d) of the 2004 Qualification Directive. The case concerned three asylum seekers who had claimed refugee status in the Netherlands on the basis of a well-founded fear of being persecuted for reason of their sexual orientation. The referring authority enquired whether persons 'with a homosexual orientation' constituted a 'Particular Social Group' under the Directive, whether and to what extent they might be expected to conceal their sexual orientation or exercise restraint and whether the criminalisation of homosexuality in their countries of origin constituted an act of persecution as defined in the Directive.

The CJEU did not, in fact, expressly determine whether Article 10(1)(d) could be read as an alternative. The CJEU noted that a 'Particular Social Group' exists where, inter alia, two conditions are met, as the Qualification Directive provides that a 'Particular Social Group' exists where, in particular, the two criteria exist. As the CJEU found that the existence of laws criminalising same-sex relationships were sufficient to fulfil the social perception limb, it did not have to consider whether a 'Particular Social Group' could exist solely on the basis of the protected characteristics limb. Thus, the judgment does not necessarily require that the cumulative approach is adopted.

This view is substantiated by the Court observing that the existence of laws criminalising same-sex relationships ' supports the finding that those persons must be regarded as forming a particular social group'. The CJEU's cautious approach could be said to arise from its reluctance to test the boundaries of CEAS harmonisation. Indeed, research published shortly before the judgment was issued concluded that there were significant disparities in Member States' interpretation of Article 10(1)(d) and its short judgment on the first question is entirely limited to the facts of the case.

2. EASO Guidance

EASO supports the EU in achieving the aim of harmonisation in the field of asylum. One of its more recent activities is the provision of guidance documents to EU Member States on the interpretation of refugee law concepts. However, EASO's Guidance to Member States on Membership of a Particular Social Group is built entirely on the assumption that the CJEU endorsed an exclusively cumulative interpretation of Article 10(1)(d). This is inconsistent with its earlier analysis of the Directive, which accurately noted that the CJEU decision did not turn on that specific question. Furthermore, the Guidance fails to apply its legal analysis uniformly to 'Particular Social Groups' of women compared to other groups considered in the Guidance. More specifically, the Guidance indicates that additional and stricter criteria are required for the determination of 'Particular Social Groups' on the basis of sex. For example, although the Guidance says that biological sex and gender are examples of innate characteristics, it adds that 'in practice the criterion of "distinct identity" will, in most countries of origin, only be substantiated if it is combined with more characteristics relevant for the surrounding society to perceive a particular group as different'.

In contrast, decision-makers determining 'Particular Social Groups' based on the protected characteristics of sexual orientation or gender identity are directed to consider 'whether the group has a distinct identity based on this common characteristic, i.e. is this group perceived as being different by the surrounding society because of their sexual orientation and/or gender identity?'. No reasoning is provided for this difference of approach.

On the other hand, decision-makers are unjustifiably directed to make further enquiries in the case of groups defined by sex. The existence of discriminatory laws or practice is no longer sufficient in itself to indicate that a 'Particular Social Group' comprised of women has a distinct identity. At most, 'it forms an indication which needs to be further assessed in the context of the country of origin; how essential is the law for the perception of the surrounding society on different identity, how is it being applied and how does it affect women differently. Often other characteristics will be needed to establish the criterion of "distinct identity" such as a region of origin, ethnicity and/or social situation'. Thus, not only does the Guidance adopt an overly restrictive reading of X, Y and Z, it also inexplicably further restricts the interpretation of Article 10(1)(d) in the cases of women fearing gender-based violence.

The Guidance propounded by EASO reflects a regression with significant implications for the protection of women at risk of gender-based violence, particularly as EASO Guidance aims to promote greater convergence within the EU. The recent transformation of EASO into a fully-fledged EU Agency for Asylum with increased powers on asylum in the EU further emphasises the importance of this finding. Although the Guidance is said to reflect 'commonly agreed standards', the analysis conducted below exploring legislative provisions and the interpretation of 'Particular Social Group' in the context of women at risk of gender-based violence in a variety of EU Member States indicates that different standards and practices exist at the national level.

B. Definition of 'Particular Social Group' in EU Member States

1. National legislation

The notion that women may be at risk of persecution because of their sex and therefore in need of refugee protection is reflected in the domestic legislation of several EU Member States that expressly includes references to gender or sex. Whereas some Member States include persecution based on sex as an additional ground for persecution, in others this is recognised as a specific example of a 'Particular Social Group'.

In the Czech Republic, domestic legislation specifically mentions gender as an additional ground for persecution. Italy has a specific non-refoulement provision that prevents refoulement to a country where a person may be persecuted for, among other reasons, their sex. The definitions of a refugee set out in domestic legislation in Germany, Ireland, Spain and Sweden explicitly include sex or gender as specific examples of 'Particular Social Groups'.

The application of these domestic provisions has led to inclusive judicial decisions resulting in refugee protection for women at risk of gender-based violence. For example, the German Administrative Court in Stuttgart recognised the refugee status of an unmarried woman with a 'Western' lifestyle as she would be at risk of gender-based persecution if she were to return to Iraq. In addition, the German Administrative Court in Aachen concluded that a risk of female genital mutilation (FGM) amounts to a threat to a woman's life, freedom from bodily harm or liberty solely on account of her sex, and therefore constituted persecution due to membership of a 'Particular Social Group'. The Administrative Court of Oldenburg allowed the appeal of an Algerian woman who was at risk of forced marriage on account of her sex and thus due to her membership of a 'Particular Social Group'. A Chinese woman was recognised as a refugee because of the risk of forced sterilisation, which was considered to be a form of gender-based persecution of members of a 'Particular Social Group', this being women.

The express recognition that women may have a well-founded fear of being persecuted for reasons of sex in national legislation and judicial decisions means that women at risk of gender-based violence in their home countries are more likely to be awarded refugee protection in a straightforward manner. Furthermore, reliance on domestic law means that refugee women are insulated from the regressive interpretative trends found in EU law, such as the narrow approach adopted by the CJEU in X, Y and Z and EASO's restrictive guidance to Member States based on its reading of that decision and its contrasting approach to other groups as discussed above.

2. National jurisprudence

The Belgian Aliens Act provides that the two limbs of Article 10(1)(d) are cumulative but in practice the judiciary interpret it more flexibly, sometimes referring to one limb only and sometimes to both. Sex has been recognised as an innate characteristic and thus as a basis for the existence of a 'Particular Social Group' as far back as 2002. The Belgian Council for Alien Law Litigation regularly draws on jurisprudence from other jurisdictions. It endorsed the Canadian decision of Ward v Canada, stressing the jurisprudential evolution of the scope to be given to this Convention ground and found that 'the social group can be defined from the existence of innate or immutable features, such as sex'. The Belgian Council for Alien Law Litigation also regularly cites the UK House of Lords decision in Shah and Islam, the first decision from the UK higher courts establishing that women constituted a 'Particular Social Group'.

Although the word 'and' is placed between the two limbs in the Belgian Aliens Act, they are both prefaced by the words 'amongst others'. In jurisprudence post-dating X, Y and Z, the Belgian Council for Alien Law Litigation has interpreted the national provision transposing Article 10(1)(d) as being not exhaustive. It also took into account the fact that the Qualification Directive merely sets out minimum standards and these have to be interpreted in the light of the Refugee Convention and the EU Charter. The Court has on several occasions pointed out that the characteristic of sex is sufficient to distinguish the group from the rest of society. It thus considers that sex is an immutable characteristic and provides a sufficient basis for the existence of a 'Particular Social Group' but that, in addition, this very fact means that women are perceived as being different from the rest of society.

In the UK, Article 10(1)(d) Qualification Directive is transposed almost word by word, although the words 'in particular' were replaced with 'for example'. In the case of Fornah, the House of Lords expressly indicated that applying the two limbs cumulatively would impose a stricter test than that provided for in international law and the UNHCR's PSG Guidelines reflecting the alternative approach were strongly endorsed. However, the response to this judgment has been inconsistent. In some cases, the Upper Tribunal followed Fornah and has found, for example, that women in Bangladesh are a 'Particular Social Group' because the lack of State protection against domestic violence was 'on account of the fact she is a woman'. In other cases, the Tribunal has departed from Fornah and adopted a cumulative approach by requiring 'discrimination in the wider sense' where the group 'is the broad one of gender or a group with gender-based identifying features'. The need for such an additional requirement has been criticised for being discriminatory and contrary to international refugee law.

More recently, the Upper Tribunal has expressly rejected the cumulative approach after reviewing the relevant authorities in its latest decision providing guidance on the interpretation of 'Particular Social Group'. It noted that the CJEU decision in X, Y and Z did not consider whether a literal interpretation of the provision was compatible with the Refugee Convention. It emphasised that the Refugee Convention imposes a higher standard of protection than is provided by a literal reading of Article 10(1)(d) Qualification Directive and the provision should therefore be read as if the word 'or' linked the two limbs of Article 10(1)(d) and the related national Regulations. Thus, despite some past inconsistent practice, the Upper Tribunal has now confirmed its adherence to the approach set out by the House of Lords. Overall, there is extensive jurisprudence in the UK in which women have been recognised as members of widely defined 'Particular Social Groups' based on the protected characteristics approach.

In France, Article 10(1)(d) Qualification Directive has been transposed mainly by cross-reference to it, and the French National Asylum Court has traditionally interpreted the two limbs of Article 10(1)(d) as cumulative. The main difficulty has been that in order to be considered members of a 'Particular Social Group' it was necessary for women and girls to demonstrate, in their country of origin, their opposition to the practices which they claimed put them at risk of persecution in order to be perceived as having transgressed cultural norms. In addition, in the case of a Syrian Kurdish woman fleeing forced marriage and domestic violence in 2004, the Court refused to recognise 'people of the female sex' as comprising a group because they did not constitute 'a circumscribed and sufficiently identifiable group of persons'. Since the French National Asylum Court required women and girls to have actively manifested their opposition to the acts which would constitute persecution, mothers of girls born in France but who would be at risk of FGM in their home countries should they return were not able to obtain refugee status as the mother had not been perceived as transgressing cultural norms in the country concerned and the children were too young to demonstrate opposition. Therefore, neither were considered members of a 'Particular Social Group' and they were merely entitled to subsidiary protection.

However, this has now changed. Both limbs must still be met, but applicants are no longer required to have expressly and publicly opposed the persecutory practice and as a result membership of a 'Particular Social Group' is to be understood as an objective fact and not dependent on the actions of the person in question. The abandonment of the requirement for women to have publicly opposed the persecutory practice in their country of origin is a positive development and aligns more closely with practice across Europe. Nonetheless, there is still an emphasis on demonstrating that the group has a distinct identity on the basis that society generally perceives the members of the group as different (the social perception approach). The Court has now established that in cases of gender-based violence, this can be demonstrated where persecutory harm, such as FGM or forced marriage, is so commonly practised that it amounts to a social norm in the country in question and the second limb is met by the mere fact of not wanting to be subjected to that prevailing social norm. EASO's Guidance appears to endorse this approach when it gives the example of 'countries or regions where the prevalence rate of FGM is high' in its guidance on whether the concerned group is perceived as being different by the surrounding society.

The French 'social norm' approach raises questions concerning how prevalent violations of women's rights must be before the social perception test is met. The concerns with the French approach are twofold. First, this may become the central focus of asylum determination rather than being used solely to determine whether the applicant has a well-founded fear of persecution. Secondly, the question of prevalence is relevant to whether there is a well-founded fear of persecution, rather than whether a person is a member of a 'Particular Social Group'. Other Refugee Convention grounds do not depend on how many people may be at risk of persecution. For example, family members have been recognised as comprising a 'Particular Social Group', and this is a much smaller group than that of 'women' generally. Equally, it is well established that not all members of the group need to be at risk. Such an approach blurs the boundaries between the assessment of risk and the grounds of persecution in a manner which is unwarranted by international refugee law.

However, the concern that the determination of a 'Particular Social Group' would become focussed on quantitative evaluations of persecutory practice has proven to be unfounded. The French National Asylum Court has subsequently confirmed that because the existence of a 'Particular Social Group' does not depend on the size of the group, the existence of the group is not to be determined solely on the basis of the extent of the persecutory practice in the country concerned. Overall, and despite French practice requiring the use of the social perception approach, recent developments have rendered that approach more inclusive and it still allows for the recognition of women as 'Particular Social Groups'. However, the convergence between the protected characteristics and the social perception approaches, discussed below, would mean that there was an inclusive interpretation, which would better ensure the effective protection of women at risk of gender-based violence.

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ONE STEP FORWARD, TWO STEPS BACK? INTERPRETING 'PARTICULAR SOCIAL GROUP' IN THE EUROPEAN UNION | International & Comparative Law Quarterly | Cambridge Core

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Article 10(1)(d) of the recast Qualification Directive provides that: Member States shall take the following elements into account when assessing the reasons for persecution: a group shall be considered to form a particular social group where in particular: - members of that group share an innate characteristic, or a common

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(2012) Gender related asylum claims in EuropeA comparative analysis of law, policies and practice focusing on women in 9 EU Member States - among the authors: Christel Querton

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(2012) Gender related asylum claims in EuropeA comparative analysis of law, policies and practice focusing on women in 9 EU Member States - among the authors: Christel Querton

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This research considers the law, policies and practice for gender-related asylum claims in nine EU Member States. The resulting comparative analysis demonstrates the many disparities in the way EU Member States handle such claims. The report concludes that women are not guaranteed consistent gender-sensitive treatment when they seek protection in Europe. It identifies a number of recommendations for a range of institutions in order to achieve a gender-sensitive asylum system across Europe.

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Precarious Workers and Probationary Wives: How Immigration Law Discriminates Against Women - Catherine Briddick

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Precarious Workers and Probationary Wives: How Immigration Law Discriminates Against Women - Catherine Briddick

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As it is well-established that indirect discrimination may be revealed by statistical information, I rely on data from over 10 years to demonstrate that certain migration opportunities are distributed differently to women and men.

Finally, an understanding of women’s disadvantageous and discriminatory treatment in relation to the family and labour migration routes considered, is combined with a broader consideration of gendered patterns of migration and the statuses that such patterns produce, to found the normative claim that immigration law as whole disadvantages women.

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journals.sagepub.com needs to review the security of your connection before proceeding.

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The Impact of Asylum Laws, Policies and Practices on FGM-Affected women and girls in Europe - Mapping trends, differences and promising practices in 7 EU countries

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The Impact of Asylum Laws, Policies and Practices on FGM-Affected women and girls in Europe - Mapping trends, differences and promising practices in 7 EU countries

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"The study found that the main differences among countries lay in the qualification assessment, including the use of Country of Origin Information resources, in the (gender-sensitive) support provided to asylum seekers during the procedure, as well as in the asylum the reception conditions and specialised service provision. Moreover, negative generalised trends were identified in terms of lack of data collection on FGM and integration policies in almost all studied countries."

The present paper sheds a light on laws, policies and practices in 7 European Union Member States (Belgium, France, Germany, Greece, Italy, the Netherlands and Spain), uncovers trends and differences among these European countries, and highlights promising practices looking particularly at 5 key aspects of the asylum sector in the context of asylum claims on the ground of FGM: qualification, procedures, reception conditions, data collection and integration.

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Gender, Violence, Refugees. Journal of Refugee Studies, Volume 33, Issue 2, June 2020, Pages 467–469 (need access) - Catherine Briddick

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Gender, Violence, Refugees. Journal of Refugee Studies, Volume 33, Issue 2, June 2020, Pages 467–469 (need access) - Catherine Briddick

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It is axiomatic, both to practitioners and to scholars concerned with forced migration, that refugee women are at a particular and heightened risk of experiencing sexual and gender-based violence (SGBV).

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What is different or special about this violence when perpetrated and experienced in the context of displacement?

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Chapter 18: Some other(ed) refugees?: women seeking asylum under refugee and human rights law (need access) - Catherine Briddick

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Chapter 18: Some other(ed) refugees?: women seeking asylum under refugee and human rights law (need access) - Catherine Briddick

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The second issue considered is the scope of protection offered to women seeking protection from gender-based violence under IRL and IHRL. The chapter concludes with a consideration of a recent success: developments in IHRL that seek to improve the way that women’s claims for protection are determined.

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Deploying the private sector in Europe will be key to the successful economic integration of refugees from Ukraine

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Deploying the private sector in Europe will be key to the successful economic integration of refugees from Ukraine

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Deploying the private sector in Europe will be key to the successful economic integration of refugees from Ukraine

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Leveraging the private sector will be key to improve refugees from Ukraine’s and host communities’ self-reliance and resilience. From multinational corporations and local investors to local microenterprises and social enterprises, the private sector has a critical role to play.

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Conflict, Displacement, and Refugees - by Lucy Hovil

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Conflict, Displacement, and Refugees - by Lucy Hovil

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This chapter examines the treatment of gender within the forced migration context.
It addresses the gendered harms that occur through displacement and the gendered consequences for individuals, families and communities of displacement.

It critiques the international community’s response to entrenched gender problems when responding to the plight of refugees and internally displaced persons (IDPs), and addresses the marginalization of gender as a relevant framework of analysis and practice for refugees and IDP’s.

It shows the strengths as well as the fundamental flaws of existing gender analyses in refugee policy. The chapter suggests that a more comprehensive gender-sensitive approach can shift the paradigm of refugee protection more broadly, leading to greater protection for men and women fleeing persecution.

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The Unaccompanied Child’s Right to Legal Assistance and Representation in Asylum Procedures under EU Law - by Marina Vannelli

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The Unaccompanied Child’s Right to Legal Assistance and Representation in Asylum Procedures under EU Law - by Marina Vannelli

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critically analyze the level of protection that Europe has provided to unaccompanied children’s right to legal assistance.

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by

Department of Law, Umeå University, 901 87 Umeå, Sweden

Received: 27 September 2021 / Revised: 21 December 2021 / Accepted: 24 December 2021 / Published: 29 January 2022

The independent migration of children today is a global phenomenon present in many regions worldwide, where unaccompanied minors seeking asylum do not enjoy full protection of their rights. Among their procedural safeguards, the right to legal assistance and representation is a fundamental right strictly related to the realization of other rights contained in the UN Convention on the Rights of the Child. Nevertheless, despite the fundamental role that guardians and legal advisors play in the wellbeing of unaccompanied children seeking asylum, many issues are currently affecting the exercise and implementation of this fundamental right in several European Union Member States. Therefore, the purpose of this article is to examine the content and scope of protection of this right under EU law, while highlighting the existence of possible ambiguities or gaps in current legal standards. Which EU law rules currently protect unaccompanied minors' access to legal assistance? What changes are necessary in order to strengthen that protection for unaccompanied minors seeking asylum? These are some of the questions that this paper addresses in order to critically analyze the level of protection that Europe has provided to unaccompanied children's right to legal assistance.

1. Introduction

However, it is well recognized at the normative level that unaccompanied children require special assistance and protection during asylum procedures ( UNHCR 1997). Among their guaranteed procedural safeguards, the right to legal representation and assistance is a fundamental right strictly related to the realization of other rights contained in the UN Convention on the Rights of the Child (CRC). In fact, guaranteed legal representation directly contributes to the legal empowerment of children and is often highlighted as a central aspect of the broader right to access to justice. 1

However, despite the clear link between the right to legal representation and access to justice, a number of problems currently negatively affect legal representation of unaccompanied children within the 27 EU Member States. The kinds of legal assistance provided by States to unaccompanied children varies greatly around Europe. For instance, while some countries provide unaccompanied minors with two representatives (a legal guardian and a lawyer) throughout the asylum process, others appoint legal advisors only after the preliminary processing has taken place ( Crock 2015). Recent reports have shown that in several EU Member States, legal assistance is not provided to unaccompanied children in every stage of the asylum procedure, and, further, representation is not usually offered by legal advisors qualified and experienced in representing children (European Council on Refugees and Exiles ( ECRE) 2014). Oftentimes, no specific skills and knowledge on asylum, migration law, children's rights, or psychology are required for guardians and legal counsellors ( Di Stefano 2016). In addition, the excessive workload on guardians and legal representatives is a common protective issue in several States, thereby affecting the quality of unaccompanied children's representation ( ECRE 2014). Accordingly, these gaps in providing adequate legal representation to unaccompanied minors naturally begs the question: What do EU rules require from States in connection to this right? This paper seeks to directly answer this question.

In order to meet this aim, I will examine the following: (i) The asylum seeker's right to legal representation under the EU Charter of Fundamental Rights; (ii) Sources of the right to free legal representation in the Common European Asylum System (CEAS); (iii) The right to legal representation and assistance in the Commission proposals to reform CEAS and the New Pact on Migration; (iv) The European Court of Human Rights and asylum seekers' legal representation; and (vi) The right to legal representation and assistance as interpreted by the Court of Justice of the European Union.

Nonetheless, before engaging in this epistemological endeavor, an analysis of the scope of "legal representation and assistance", particularly in connection to unaccompanied minors, is necessary to more fully understand current EU rules and the issues surrounding this right. After this initial step, this paper will seek to identify the extent of this right under current standards and determine the existence of possible ambiguities, gaps, or contradictions in EU law, as well as define the potential barriers to the effective protection of unaccompanied children in terms of legal representation at the European level.

2. Legal Assistance and Representation: Two Sides of the Same Coin

Several issues affecting the right to representation and assistance of unaccompanied children are connected to the lack of definitions surrounding this right. For instance, scholars have often questioned the scope of the right, asking: What should legal assistance and representation include? What are the differences between guardianship and representation? When should representation be appointed, and which type of representation is needed during the asylum procedure in connection to children? With these questions in mind, in order to have a comprehensive understanding of what is meant by legal representation and assistance, and in order to identify the corresponding States' obligations, it would be necessary to define and limit the scope of this right as included in European law.

However, while the right to legal representation and assistance is recognized under EU law, there are no common definitions agreed in connection to this right ( FRA 2014). In addition, as the rules concerning representation and the terminology applied at the national level vary significantly, difficulties appear when one attempts to apply common terminology such as guardians, advisors, or representatives in different EU Member States.

Within EU legislation, the different roles and tasks of the personnel involved in the asylum-seeking child's representation and assistance (such as guardians, legal representatives, advisers, or counsellors) are not determined. In fact, the term "guardian" is not defined under CEAS 2, and the directives only refer to "representative" or "legal representative", broadly describing a "person or an organization appointed by the competent bodies in order to assist and represent an unaccompanied minor in procedures provided for in this Directive with a view to ensuring the best interests of the child and exercising legal capacity for the minor where necessary" 3. This extensive definition of representatives in the asylum acquis could refer both to guardians and legal advisors.

Nevertheless, it might be possible to find some clarification under UN rules, such as through the "UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1(A) 2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees", which clearly differentiates the roles of guardians and legal assistants. The term "guardian" is here defined as an independent person who is in charge of the child's best interest and general wellbeing, differing from legal advisors, who specifically provide legal assistance in connection only to the legal matters during legal procedures ( UNHCR 2009, p. 26).

These definitions are also shared by the Fundamental Rights Agency's "Handbook on Guardianship", where explanations concerning the roles of guardians are provided. According to FRA, "guardians" exercise three distinctive functions: ensuring the child's overall wellbeing, safeguarding the child's best interests, and exercising legal representation to complement the child's limited legal capacity ( FRA 2014). The roles of "legal assistants" or "advisors", on the other hand, are strictly connected to legal assistance and the legal representation of the child before legal proceedings, such as the asylum procedure ( FRA 2014).

In this sense, while the child's lawyer, legal assistant, or legal advisor should be a person qualified to provide legal assistance, aid, or counselling during the asylum proceedings and to assist the child in all legal matters, the guardian or legal representative will focus on the general wellbeing of the child, including, for instance, on all matters connected to the child's health, education, and accommodation. The adequacy of representation relies precisely on the effectiveness of the interplay between guardians and legal advisors. Effective protection by a guardian and also by a lawyer is an indispensable component for the wellbeing of unaccompanied children, particularly because without legal representation, the probabilities of them presenting their claims successfully are relatively low, if not nonexistent ( King 2013).

Following this line of thought, it would be possible to say that the right to legal assistance and representation comprises both the child's rights to legal aid and, separately, to guardianship during the asylum procedure. This means that every unaccompanied minor applying for asylum should be entitled to the right to protection by a guardian and a lawyer or legal assistant. Regardless of the terminology applied at the national level, the right to legal representation and assistance of the unaccompanied child in the asylum procedure requires the appointment of one or several persons who will ensure the minor's general wellbeing, protect the best interest of the child, complement the legal capacity of the child when necessary, and provide legal assistance on all legal matters connected to court or administrative procedures in which the child is involved.

Nowadays, asylum procedures in EU Member States are complex proceedings which require research, evidence, the child encountering several actors (social workers, translators, psychologists, migratory authorities, etc.), and the child participating in at least one personal interview. In this context, legal assistance and representation is a necessary component of the right to due process. Moreover, guardianship and counsel are absolutely necessary to ensure that other procedural safeguards and fundamental rights of the unaccompanied child are adequately guaranteed. Unveiling the content of this right under primary and secondary sources of EU law will be the subsequent focus of this paper.

3. The Asylum Seeker's Right to Legal Representation under the EU Charter of Fundamental Rights

In December 2009, the Treaty of Lisbon came into force and the Charter became legally binding on EU Member States. 4 Through the amendment of Article 6 of the Treaty on European Union (TEU), it is now recognized that the Charter "shall have the same legal value as the Treaties". 5

The Charter, which now constitutes a source of primary EU law, includes six different chapters providing a set of civil, political, social, economic, cultural, and citizenship rights. Due to the wide array of rights enshrined in this instrument, it has been claimed that "the Charter presents in sharpest relief the indivisibility of human rights" ( Douglas-Scott 2011, p. 651). However, the Charter is only applicable within the field of EU law, 6 and all rights can be subject to a general limitation clause under Article 52. 7

Asylum seekers' right to free legal representation stems from Article 18 of the Charter, which broadly establishes the right to asylum "with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union". 8 The recognition of the right to asylum under the Charter requires, in consequence, procedural guarantees for the effective and adequate protection of this right. As clearly stated by Guild, "in EU law (and ECHR law) where a right exists procedural obligations regarding the protection of that right are inherent". ( Guild 2015, p. 265).

Among the procedural rights included in the Charter, Article 47 establishes the right to an effective remedy and to a fair trial, expressly including legal representation. This provision states:

"Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice".

Accordingly, as provided in Article 47, the asylum seekers' right to legal representation will depend on the need to ensure an effective access to justice and an effective remedy. The Charter also sets forth numerous additional rights related to the adequate representation of a child. For example, the Charter establishes the principle of non-refoulement (Article 19), equality before the law (Article 20), non-discrimination principle (Article 21), and the rights of the child (Article 24). Moreover, with regards to the rights of children, the Charter enshrines the best interest principle, the right of the child to express his or her views and to have those views taken into consideration, and the rights of the child to protection and care necessary for their wellbeing. Finally, Article 21 further establishes that discrimination based on age is prohibited.

In short, under the Charter, asylum seekers' right to free legal assistance and representation will rest on the need to ensure an effective remedy and effective access to justice. In the following section, the main provisions of the asylum acquis attaining to this right would be scrutinized.

4. Sources of the Right to Free Legal Representation in the Common European Asylum System

The Common European Asylum System (CEAS) is a legislative framework which covers all aspects of asylum procedures, such as the rules establishing the responsible Member State for examining asylum applications, and the common standards for asylum procedures, reception conditions, and the recognition of beneficiaries. All Member States are bound by these measures and shall consequently ensure that their national law is compatible with this legal framework. The interpretation of this body of law relies on both national judges and the Court of Justice of the European Union (CJEU), in that national courts must interpret EU law in many cases and, in some cases (where they are the court of last instance in a matter, for example), refer their questions on the proper interpretation of an EU legal provision to the CJEU. 9

For the purpose of this paper, I will rely on those rules which contain the most relevant sources in connection to the right to legal assistance of asylum seekers and, specifically, unaccompanied children. These are the Recast Asylum Procedures Directive (2013/32/EU), 10 the Qualification Directive Recast (2011/95/EU), 11 the Recast Reception Conditions Directive (2013/33/EU), 12 the Antitrafficking Directive (2011/36/EU), 13 and the Recast Dublin Regulation (604/2013) or "Dublin III" 14.

As will be explained below, a common element shared by the numerous directives and regulations when it comes to unaccompanied children's representation is the fact that the different roles and tasks between guardians, legal representatives, advisers, or counsellors are not explicitly defined. Instead, this legal framework mainly refers to "representative" or "legal representative" in a broad manner, combining the roles of both guardians and advisors and only referring in a general way to their fundamental function of assisting and representing the unaccompanied child in the legal procedure without specific requisites. 15

To begin with, the Recast Asylum Procedures Directive (2013/32/EU) sets the main rules concerning asylum seekers' right to legal assistance in addition to the right of the unaccompanied child to legal representation. Accordingly, the directive includes both the asylum seekers' right to legal and procedural information free of charge and the right to legal representation. However, there are significant distinctions when it comes to the extent of such rights. On the one hand, Article 19 requires States to provide applicants on request with legal information free of charge concerning the procedure in connection to the applicant's particular circumstances. In addition, States are also required to provide appeal information on request, including the reason the applicant received a negative decision at first instance and the subsequent means to challenge the decision.

Similarly, free legal representation shall be provided on request in the appeals procedure, in line with Article 20. As other scholars have suggested, it is regrettable that the directive does not strengthen standards by guaranteeing free legal aid and representation at all stages of the asylum procedure, such as during the attendance at the personal interview. See e.g., ( Borland 2015, p. 38). Under current law, Member States are not restrained from applying the "merits test" to the exercise of this right in cases where the court, tribunal, or competent authority considers there to be no tangible prospect of success with the application for asylum. 16 However, if the decision not to provide legal assistance is not taken by a court or tribunal, Member States are required to ensure that the applicant has the right to an effective remedy before a court or tribunal against such decision so that the applicant's effective access to justice is not, at least in theory, hindered. 17

Further limitations are also prescribed. Article 21 allows Member States not to provide legal representation to appellants who are no longer present in their territory and impose monetary or time limits on the provisions of free legal and procedural information and free representation. In addition, States may require reimbursement for costs granted if the applicant's financial situation improves or the decision to provide such costs was taken based on false information provided by the applicant. 18 Lastly, applicants are entitled to consult, at their own cost, a legal adviser or other counsellor at all stages of the procedure, and providers of legal representation may include nongovernmental organizations. 19

Regarding the scope of legal representation, Article 22 requires Member States to ensure that legal advisers and counsellors have access to the information in the applicant's file upon which the decision is, or will be, made. The provision contains restrictions to this right based on security reasons such as national security or the security of organizations or persons who provide the information, among others. In addition, Member States shall ensure that the legal representative is able to access closed areas in order to visit the applicant and allow the applicant to be accompanied by their legal adviser or counsellor to the personal interview. 20

With regards to unaccompanied children, the guarantees of this vulnerable group are expressly included within Article 25. The Article mandates that States are required to appoint "as soon as possible" a representative that represents and assists the unaccompanied child and inform the minor immediately of the appointment of his or her representative. Notably, the requirement "as soon as possible" may lead to the denial of this right by State actors, as States may suggest different interpretations considering various excuses or circumstances to retard the appointment of representatives.

In addition, the latter provision includes some general requirements concerning both the representatives' role and the quality of representation. In this regard, the unaccompanied child's representative "shall perform his or her duties in accordance with the principle of the best interests of the child and shall have the necessary expertise to that end". 21 Once again, this legal framework refers, in a broad manner, to the requirements attaining this right, which could lead to different interpretations among States affecting the quality of unaccompanied minors' assistance and representation.

Representatives or advisers shall only be changed if necessary, and States shall ensure that the representative has the opportunity to inform the child about the personal interview. 22 Further, States are required to allow the representative or legal adviser of the child to be present during the interview and ask questions or make comments. 23 State authorities shall also provide both unaccompanied children and their representatives with the legal and procedural information in accordance with Article 19. 24

Lastly, Member States may apply one limitation in connection to the appointment of the representative for the unaccompanied minor in accordance with Article 25 (2). Following this provision, Member States may refrain from providing a representative when the unaccompanied child will reach the age of 18 before a decision at first instance is taken.

The Qualification Directive Recast (2011/95/EU) establishes common criteria for determining eligibility for international protection, including both refugee status and subsidiary protection. Unaccompanied children's rights are explicitly mentioned in Article 31(1), which establishes the right of every unaccompanied child to representation "by a legal guardian or, where necessary, by an organization responsible for the care and wellbeing of minors, or by any other appropriate representation including that based on legislation or court order" as soon as possible after granting international protection. State authorities should ensure that the appointed guardian or representative fulfils the needs of the child and are equally responsible for regularly monitoring the quality and exercise of these guardianships. 25 As the latter provision shows, this directive enlarges the level of protection by including monitoring duties for States and including the term guardian to in its wording. However, the specificities concerning monitoring are left to States and the criteria "as soon as possible" is still the main requisite referring to the adequate time of appointment of the guardian or representative, which, as previously mentioned above, could lead to manipulations or delays in such appointments at the national level.

The Recast Reception Conditions Directive (2013/33/EU) includes minimum standards for a full set of benefits granted to individuals who apply for asylum, while specially including a chapter concerning vulnerable persons. 26 In particular, State authorities have the obligation to assure the fulfilment of the principle of the best interest of the child during the implementation of the provisions of the Directive connected to minors. 27 The assessment of the best interest of the child shall consider, among others, the views of the minor in accordance with his or her age and maturity. 28

Article 24 refers specifically to the rights of the unaccompanied child. With regards to legal representation, this right is contemplated with the same wording as Article 25(a) of the Recast Asylum Procedures Directive. 29 The only significant change is the inclusion of regular assessments concerning the availability of the necessary means for representing the unaccompanied child. 30 In addition, the latter provision further requires appropriate and constant training for all those individuals working with the child in connection to the special needs of the child. 31 They are also bound by confidentiality rules in connection to any information they receive during their work. 32

Further, the Antitrafficking Directive (2011/36/EU) demands particular attention from State authorities to unaccompanied children victims of trafficking, and it recognizes that these children "need specific assistance and support due to their situation of particular vulnerability". 33 The rights of the unaccompanied child victim of trafficking are expressly contained in Article 16, where States are required to "take the necessary measures to ensure that, where appropriate, a guardian is appointed to unaccompanied child victims of trafficking in human beings...". 34 Moreover, when the legal representative and/or guardian are appointed, "those roles may be performed by the same person or by a legal person, an institution or an authority". 35

Finally, the Recast Dublin Regulation, or "Dublin III", regulates the determination of the Member State responsibilities when examining an asylum application. Article 6 establishes the right of every unaccompanied child to a representative who assists the minor with all matters concerning the Dublin procedure. In addition, it is mentioned that the representative "shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration" during Dublin procedures and have access "to the content of the relevant documents in the applicant's file including the specific leaflet for unaccompanied minor".

Overall, it is possible to say that a number of rules concerning legal representation are established under the Common European Asylum System, but most of the standards are written in a general way, lacking clear requisites for representatives or specific obligations for State authorities. The lack of clear definitions regarding, for instance, the necessary qualifications of representatives, the differentiation between the roles of advisors and guardians and States' monitoring duties, and so on, leave a great amount of discretion for Member States at the national level. Time limits and States' obligations are also often vague, with expressions such as "where appropriate" or "as soon as possible". 36

The ambiguity of legal standards at the regional level, which resultantly fails to clearly establish the content and extent of this right, is directly transposed to the national level where States offer different types of representation affecting the enjoyment of unaccompanied minors' rights and guarantees during the asylum procedure. In fact, as mentioned above, the kind of legal assistance provided by States to unaccompanied children varies around Europe. While some States offer adequate representation in terms of legal aid and guardianship from the moment the minor is identified, others include the appointment of legal advisors only once the preliminary processing takes place ( Crock 2015). 37 These differences and deficiencies in several protection systems at the national level appear to be tolerated under the lack of specific legal standards at the regional level.

These limitations in the framework of CEAS concerning representation, in addition to other structural issues, were exposed during the refugee crisis in 2015. 38 As a consequence, the Commission proposed a structural reform of CEAS in April 2016 39 and a New Pact of Migration in September 2020. 40 In this regard, special attention will be given in the following section to the Commission proposals to reform CEAS in connection to the right to legal representation and assistance.

5. The Way Forward: The Right to Legal Representation and Assistance in the Commission Proposals to Reform CEAS and the New Pact on Migration

The Commission has enacted a wide array of proposals. The first series of proposals included reforms of the Dublin system, 41 reinforcement of the Eurodac system, 42 and the transformation of the European Asylum Support Office into a European Union Agency for Asylum with a stronger mandate, which will facilitate the functioning of the entire system. 43 Further proposals included the replacement of the Qualification Directive and Asylum Procedures Directive with new regulations, 44 changes to the Reception Conditions Directive, 45 and the proposal establishing a Union Framework on Resettlement. 46 This second set of proposals will be the subsequent focus of this section, as they include reforms to the provisions of legal representation for asylum seekers.

An important inclusion of these proposals is the replacement of the term "legal representative" for the term "guardian", 47 and the incorporation of specific provisions addressing guardians' main tasks and qualifications. Even if some aspects of guardianship continue to be established in a general manner, the standards enshrined in the proposals-as will be shown below-are certainly more extensive than the rules in the current asylum acquis.

Within the proposals, a higher level of procedural safeguards is established in connection to children and particularly to unaccompanied minors. 48 With regards to legal representation, the proposal to transform the Asylum Procedures Directive into a new regulation aims to standardize guardianship practices in the Union in order to ensure that guardianship becomes prompt and effective in all EU Member States. As discussed above, standardizing guardianship practices seeks to avoid disparities within the several guardianship systems in Member States that may lead to the lack of enjoyment of unaccompanied minor's procedural guarantees, thereafter exacerbating their inadequate care or their exposure to situations that could possibly lead them to escape. 49

Accordingly, the former proposal establishes that unaccompanied children should be appointed a guardian as soon as possible and no later than five working days from the moment they present an application. 50 The five days limit introduces a positive modification to the Asylum Procedures Directive, as the current standard is "as soon as possible", which-as described earlier-could lead to misleading and inconsistent results among Member States. 51

The functions of the guardian are also described in Article 22 (3), which states that:

"The guardian shall, with a view to safeguarding the best interests of the child and the general well-being of the unaccompanied minor: (a) represent and assist the unaccompanied minor during the procedures provided for in this Regulation and (b) enable the unaccompanied minor to benefit from the rights and comply with the obligations under this Regulation".

In addition, Article 22 (4) reads as follows:

"The guardian shall perform his or her duties in accordance with the principle of the best interests of the child, shall have the necessary expertise, and shall not have a verified record of child-related crimes or offences".

Within the guardians' tasks, the proposal also includes that guardians are in charge of informing the unaccompanied child about the personal interview, its meaning, possible consequences, and, where appropriate, how to prepare himself or herself for such an interview. 52 Guardians shall be present in the personal interview, as well as legal advisors or counsellors admitted under national law, and shall be able to ask questions and make comments. 53

Moreover, State authorities are equally responsible for monitoring the quality and exercise of these guardianships, and they are required to appoint entities or persons accountable for the performance of guardians' tasks. 54 Unaccompanied minors shall be entitled to lodge complaints against their guardians, 55 and guardians shall be changed when responsible authorities consider that she or he does not adequately perform their main tasks. 56 State authorities are also responsible for not appointing a guardian with a disproportionate number of unaccompanied children at the same time. 57

Overall, the proposals provide a relevant improvement in the current legal framework concerning unaccompanied children's representation in asylum in EU Member States. The inclusion of time restrictions, monitoring systems, and clearer definitions for guardians' roles will lead to a lesser level of discretion in the implementation of this right and a better understanding of legal representation within EU States. In addition, the proposal to transform the Qualification Directive and Asylum Procedures Directive into new regulations will lead to the harmonization of standards, as regulations are directly applicable in the Member States.

Nevertheless, a few words should be said regarding the state of the proposals in the legislative process. The proposal to reform CEAS have not been formally adopted under the 2014-2019 parliamentary term, due mainly to disagreements between the Council and Parliament. 58 However, the stagnation of the past years seemed to have been overcome in September 2020 when the Commission presented a new pact on migration and asylum where it supported the provisional political agreement achieved in connection to the previous proposals and urged for adoption "as soon as possible". 59 However, this seems unlikely to happen at present as the pact holds an integrated and comprehensive approach, covering all aspects of asylum and migration governance, which complicates the negotiations.

The new pact builds from and maintains the proposals while introducing additional elements to them as well. It aims to conclude the negotiations on the 2016 proposals while including several positive novelties. For instance, the pact includes the creation of integrated procedures at the borders through pre-entry screening and specific monitoring safeguards. It also calls for improvements in cooperation in the area of migration management and establishes a more effective solidarity mechanism, such as strengthening return solidarity measures.

The needs of the migrant child are identified in the pact as a priority while seeking to strengthen the safeguards of children under EU law in the context of migration. In this sense, the new proposed rules seek to ensure that all decisions concerning asylum-seeking children are taken with primary consideration of the best interest of the child and with due respect to the right of the child to be heard. Moreover, when it comes to the rights of unaccompanied children, special attention is given to this vulnerable group through, for instance, reinforcements in the right to family reunification and prioritization for relocation of unaccompanied minors. 60

With regards to legal representation, the pact establishes that unaccompanied minors should be appointed a representative no later than fifteen days after an asylum application is presented. 61 In addition, the role of the European Network on Guardianship 62 should be strengthened while promoting stronger coordination, cooperation, and capacity- building of guardians throughout the European Union. 63 The particular needs of unaccompanied children and child-specific procedural guarantees, such as ensuring the right of the child to be heard, swift family reunification, and legal assistance, throughout the entire asylum procedure should be effectively provided. 64

Despite the positive aspects introduced in the pact, the legislative proposals are still being negotiated between the European Parliament and the Council of the EU. In addition, the existing tensions between Mediterranean States and Northern States based on the differences in their interests concerning secondary movements, reception conditions, accommodation, and solidarity and responsibility sharing, sets important challenges to discussions and makes it difficult to reach consensus.

Bearing these considerations in mind, in the following sections it will be critically analyzed the manner in which the European Court of Human Rights and the European Court of Justice have referred to this right in concrete cases.

6. The European Court of Human Rights and Asylum Seekers' Legal Representation

The European Court of Human Rights (ECtHR) ensures the correct application of the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). Procedural guarantees in the European Convention are enshrined in Articles 6 (right to a fair trial) and Article 13 (right to an effective remedy). While these provisions are closely related, the content and extent of the rights enshrined therein are not the same. See e.g., ( Borland 2015, p. 52). Article 13 ECHR can only be engaged if the applicant holds an arguable claim in connection to other provisions of the ECHR, such as, for instance, Articles 2 (right to life), 3 (prohibition of torture), or 8 (right to respect for private life) ECHR. 65 On the other hand, Article 6 ECHR provides for the right to a fair hearing and access to justice in civil and criminal procedures. Further, under paragraph 3c, the provision recognizes the right to free legal aid in criminal proceedings under certain circumstances. 66

The Court has developed an extensive jurisprudence in connection to the content and extent of States' obligations under Article 6 ECHR with regards to the granting of legal aid. 67 However, in the context of migration, the regional tribunal has so far refused to accept that the procedural rights enshrined under Article 6 ECHR are applicable to asylum procedures. 68 Since its first judgment regarding the applicability of Article 6(1) to expulsion proceedings of aliens in the case of Maaouia v. France, 69 the regional tribunal has claimed that:

"[D]ecisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention". 70

Notwithstanding the negative position of the regional tribunal regarding the applicability of Article 6 ECHR in immigration and asylum procedures, the ECtHR has recognized specific procedural guarantees to asylum seekers and migrants by the joint application of other interconnected and interrelated provisions-such as Articles 8 and 13 ECHR-to asylum procedures. 71

To state it differently, while the Court has held that the procedural safeguards enshrined in Article 6 ECHR are not applicable in asylum procedures, Article 13 ECHR, which ensures the right to an effective remedy, is fully applicable in connection to asylum in cases when the applicant builds an "arguable claim" under any other provision of the Convention. 72 In this sense, the Court has acknowledged on several occasions, while analyzing violations in connection to Articles 2, 3, and 8 ECHR in the context of migration, that procedural obstacles such as the lack of legal representation could result in a violation of Article 13 ECHR. 73

For instance, in the case of Abdolkhani and Kariminia v. Turkey, 74 the Court found that the applicants in an asylum case were not guaranteed an effective and accessible remedy in connection with their complaints based on Article 3 of the Convention. 75 Thus, the Court identified a violation of Article 13 ECHR based partly on the lack of legal assistance of the applicants during detention. 76 In fact, according to the regional tribunal:

"A remedy must be effective in practice as well as in law in order to fulfil the requirements of Article 13 of the Convention. In the present case, by failing to consider the applicants' requests for temporary asylum, to notify them of the reasons for not taking their asylum requests into consideration and to authorise them to have access to legal assistance while in Hasköy police headquarters, the national authorities prevented the applicants from raising their allegations under Article 3 within the framework of the temporary asylum procedure". 77

As an additional development of this jurisprudential approach, in the case of MSS v. Belgium and Greece, 78 the Court assessed Article 13 ECHR in connection to Articles 2 and 3 ECHR. Accordingly, the regional tribunal highlighted in this decision that the access to asylum proceedings and the examination of applications for asylum in Greece presented several deficiencies. Among these, the Court specifically highlighted "the lack of legal aid effectively depriving the asylum seeker of legal counsel" 79 in addition to serious lack of information and communication issues affecting asylum seekers, 80 and the lack of practical means of the applicant to pay a lawyer. 81

The importance to guarantee an effective remedy in the context of migration processes where the applicant's complaint is connected to Article 3 of the Convention were further developed by the Court in the latter case of Hirsi Jamaa and Others v. Italy. 82 In particular, the Court was able to recognize that the applicants had no access to a procedure that identified and assessed their personal circumstances before they returned to Libya. 83 Moreover, the Court specially highlighted that "[t]here were neither interpreters nor legal advisers among the personnel on board". 84

Further, when examining States' obligations towards children involved within migration procedures, the European Court has highlighted on numerous occasions how important is to pay attention to their special situation of vulnerability as both minors and migrants. In fact, the Court has reinforced the protection of children's rights by reaffirming that:

"This requirement of 'special protection' of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability". 85

This jurisprudence has been further consolidated with the acknowledgment of the need to introduce a differential treatment able to provide an enhanced level of protection to migrant children. In fact, the Court has repeatedly referred to several provisions of CRC that should be taken into consideration as reference points for States authorities when ensuring the effective realization of children's rights. Among these provisions, the Court has highlighted the special relevance of Article 3 (best interest of the child), 22 (appropriate protection and humanitarian assistance for refugee children), and 37 (detention and punishment). 86

Accordingly, by means of reading the ECHR in the light of the CRC, the Court has acknowledged the relevance of the best interest of the child in all decisions concerning children, 87 and the need to adapt the reception conditions for asylum-seeking children in accordance with the child's age. 88 In addition, the regional tribunal highlighted that the Convention on the Rights of the Child requires States to adopt appropriate measures that ensure that asylum-seeking children enjoy protection and humanitarian assistance regardless of the condition of the child as accompanied, separated, or unaccompanied. 89 In particular, the Court has found in this context that children who apply for asylum alone can face increased levels of vulnerability. 90

The jurisprudential developments of the ECtHR clearly show that the specific vulnerability connected to the condition of being a child seeking asylum justifies an increased level of protection, together with the identification of tightness obligations over State authorities. 91 This rule is fully applicable to the case of unaccompanied children where their intrinsic vulnerability requires higher levels of protection from States, such as adequate legal representation and guardianship.

In fact, the court placed special focus on the extreme situation of vulnerability that affects the child who is unaccompanied in the case of Mubilanzila. 92 In its reasoning, the regional tribunal condemned the two-month detention of an unaccompanied child in a center designed for adults without any person being assigned to look after her, and highlighted that the State authorities had not taken appropriate measures for her protection, as, for instance, "[N]o measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose". 93

Lastly, it would be important to note that even if the Court has expressly denied the application of Article 6 ECHR and the recognition of the entitlement of the right to legal representation under this provision in asylum procedures, it has, however, also identified on several occasions the lack of representation as a predominant factor while examining asylum seekers' right to a fair remedy. In fact, by taking into consideration Article 13 ECHR in connection with other provisions of the European Convention, such as, for instance, Article 3 ECHR, the regional tribunal has required States to establish asylum procedures which contain a set of minimum safeguards, including the right to be heard. 94 As evidenced under the decisions examined above, there is clear concern from the European Court regarding the need for free legal assistance during asylum procedures, especially as asylum seekers are in a special situation of vulnerability. See e.g., ( Guild 2015, p. 280). This interpretative rule is clearly applicable to the case of unaccompanied children, whose specific condition of vulnerability require, from State authorities, higher levels of protection through additional safeguards. Bearing these considerations, the Court has developed an important case law aimed at strengthening the conventional protection of the rights of the migrant child.

7. The Court of Justice of the European Union and the Right to Legal Representation and Assistance

The judicial authority of the EU has, as its main function, to ensure the uniform interpretation and application of European Union law. 95 When it comes to asylum law, the Court of Justice has examined cases concerning different aspects of migration, see ( Costello 2012) and ( Garlick 2015). such as the minimum standards for determining who qualifies as a refugee under EU law, 96 states' obligations under Dublin Regulation, 97 minimum standards for the reception of asylum seekers in EU Member States, 98 and asylum seekers' procedural rights. 99 As indicated by the constant jurisprudence of the CJEU, it is important to highlight that States Members are under the general obligation to ensure judicial protection of an individual's rights under EU law. 100

The Court of Justice has addressed the relevance of the right to legal assistance in connection to Article 47 of the Charter in the case of D.E.B., 101 specifically in the context of the Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes. The latter directive applies to Union citizens and third-country nationals domiciled or who are habitual residents in a Member State in connection to cross-border disputes and to civil and commercial matters, whatever the nature of the court or tribunal. 102 Hence, it leaves outside the scope of its application legal aid in asylum procedures. However, it is worth focusing on this decision, as the reasoning of the Court in the case of D.E.B could be translated to cases concerning asylum seekers and their right to effective remedy. 103

In this case, the Court of Justice examined the scope of Article 47 of the Charter with regards to legal aid by interpreting the provision in its context, i.e., in connection to "other provisions of EU law, the law of the Member States and the case-law of the European Court of Human Rights". 104 As a result of this integrative approach, the court recognized that the grant of legal aid in connection to the right to an effective remedy shall be made "on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated". 105

Moreover, the regional tribunal specifically recognized that the principle of effective judicial protection should be interpreted as including legal aid related to the payment of the costs of the procedures and/or the assistance of a lawyer. 106 Lastly, national courts should assess whether the conditions for granting legal aid constitute a limitation to the right to access to courts which undermines the core of the right, pursuing a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which is sought to achieve. 107 When making the latter assessment, national court shall take into consideration:

"The subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant's capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts". 108

Accordingly, the application of this decision in the context of asylum could lead us to conclude that States need to follow the criteria established above in each particular asylum case in connection to the provision of legal assistance. In addition, the asylum seekers' right to legal aid, established in CEAS, should not be interpreted in isolation, but taking into consideration the context of the legal system of reference, including other instruments and agreements directly related to EU asylum law. Under this integrative approach, the interpretation of asylum seekers' right to legal assistance should also consider-as elaborated by the European Court in the D.E.B. case-the jurisprudence of the ECtHR in connection to the right to legal aid and Article 47 of the Charter.

Further clarifications connected to the right to legal aid were developed by the regional tribunal in connection to vulnerable persons. For instance, in Pontin, the Court held that time limits in the procedure could make it too difficult for the applicant to obtain legal advice, due to the applicant's special condition of vulnerability, such as in the situation of a dismissed pregnant women. 109 Accordingly, a 15-day period as time limit for bringing an action for nullity and reinstatement could be reasonable in other cases, but, combined with the vulnerability position of certain applicants, could result in a violation of the applicant's procedural rights. This rule is fully applicable in connection to asylum seekers.

Lastly, the regional tribunal has recently ruled a remarkable judgment in the case of TQ v. Staatssecretariis van Justitie en Veiligheid 110 regarding the interpretation of several provisions of the Return Directive (2008/115/EC) 111 in cases involving unaccompanied minors whose application for international protection has been rejected. In this case, the court identified States' obligation "to apply the best interests principle at all stages of the procedure" 112 before taking any return decision. In addition, the regional tribunal emphasized how important is to hear the unaccompanied child before adopting a return decision with regards to the conditions in which she or he might be received in the State of return. 113 This rule is clearly connected to the right to legal assistance and representation of the unaccompanied child, as the adequate exercise of this right is absolutely necessary to hearing the child properly and examining their best interest in each particular case.

8. Conclusions

This paper has thoroughly examined the main legal developments at the EU level concerning legal representation and assistance for unaccompanied children seeking asylum in the EU. In addition, several deficiencies in current EU rules concerning this right, which lead to significant challenges and disparities in its implementation at the national level, have been highlighted. Among these, one can mention the overbroad and vague definition of the term "representatives" in the asylum acquis-which could refer both to guardians and legal advisors-and the lack of specific standards for legal representation and assistance in the case of unaccompanied minors. In fact, the lack of clarification in the asylum acquis reflects a lack of consistency and harmonization among Member States in the application of EU law when it comes to unaccompanied children's representation.

The continuous sufferings of this vulnerable group confirm that the current general standards of protection have not been enough, and that legal certainty needs to be achieved if the present ambiguities and gaps in the protection of unaccompanied children are to be solved. As both CJEU and ECtHR have recognized, the right to legal representation is strictly connected to the right to justice, a fundamental human right interrelated with other rights enshrined in the CRC and the EU Charter. The right of the unaccompanied minor to legal representation and assistance is necessary to ensure the effectiveness of other procedural guarantees. In fact, proper representation constitutes an effective mechanism to avoid unfounded deportations that could result in violations of other rights, such as the best interest principle and the right to family reunification. As such, ensuring unaccompanied minors protections both procedurally and substantively is of resolute importance.

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The Unaccompanied Child’s Right to Legal Assistance and Representation in Asylum Procedures under EU Law

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The independent migration of children today is a global phenomenon present in many regions worldwide, where unaccompanied minors seeking asylum do not enjoy full protection of their rights. Among their procedural safeguards, the right to legal assistance and representation is a fundamental right strictly related to the realization of other rights contained in the UN Convention on the Rights of the Child.

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Governing adolescent mobility: The elusive role of children’s rights principles in contemporary migration practice - Bhabha, Jacqueline; Holzscheiter, Anna ; Sandin, Bengt ; Josefsson, Jonathan, 2019

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Governing adolescent mobility: The elusive role of children’s rights principles in contemporary migration practice - Bhabha, Jacqueline; Holzscheiter, Anna ; Sandin, Bengt ; Josefsson, Jonathan, 2019

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Child migration is a complex and multifaceted phenomenon spanning continents, age groups, and family patterns governed by two intersecting but not overlapping governance regimes. One of these two regimes is the migration regime, designed to uphold sovereign state borders and manage migration flows. The other is the child rights regime, a governance framework that privileges the protection of the best interests of the child. This article focuses on the mobility of adolescents, their needs, their challenges, and the implications of the complex and sometimes contradictory governance regimes impinging on these youthful migrations.

What is true for the migration field as a whole also applies to the sizable sub-sphere of distress migration, migration affecting populations compelled by circumstances beyond their control to leave their homes. Forced migrants, including refugees and others displaced by forms of persecution, violence, or other hardship, struggle to secure the humanitarian protections that long-standing international legal norms are intended to guarantee.

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Governing adolescent mobility  The elusive role of children’s rights principles in contemporary migration practice

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Afghan unaccompanied refugee minors’ understandings of integration. An interpretative phenomenological analysis

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Afghan unaccompanied refugee minors’ understandings of integration. An interpretative phenomenological analysis

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By Mostafa Hosseini & Elisabeth Punzi

The results showed that integration was understood as a process in which relationships, connectedness, and concrete support are fundamental.
Education, employment, and leisure activities were important for integration. Integration also improved by contributing to the new country, for example, through paying taxes or voluntary work.
We discuss how integration could be supported, for example, through making UMs cocreators of interventions and through acknowledging the importance of meaningful activities, relationships, and concrete support.

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The Impact of Forced Displacement on Host Communities: A Review of the Empirical Literature in Economics

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The Impact of Forced Displacement on Host Communities: A Review of the Empirical Literature in Economics

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Moving Children: Lacunae in Contemporary Human Rights Protections for Migrant Children and Adolescents - by Jacqueline Bhabha

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Moving Children: Lacunae in Contemporary Human Rights Protections for Migrant Children and Adolescents - by Jacqueline Bhabha

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This article posits that all young migrants need protection and assistance of one sort or another: Safe accommodation, and protection from exploitation, from the risks of criminalization, from deprivation of food and medical care at a minimum. Though progress is visible, much more remains to be achieved. The scandal of basic rights denial to tens of thousands of children and young people who deserve much better treatment from the world’s richest States implicates all of us.

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Moving Children: Lacunae in Contemporary Human Rights Protections f...

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Introduction The first four months of 2011 will go down in history as “the Arab Spring”, a moment when the unmet aspirations of the next generation hit global headlines. Alongside the inspiring ima...

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The Women Peace and Security Index: A new lens on forced displacement

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The Women Peace and Security Index: A new lens on forced displacement

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The IRC and the Georgetown Institute for Women Peace and Security's briefing highlights the disadvantages displaced women and girls face in terms of their justice, inclusion and safety and calling for targeted support.

Even before the COVID-19 pandemic, displaced women generally faced much higher risks than host community women of violence at home, were consistently less likely to be financially included, and often experienced less freedom of movement. Now, the pandemic has only compounded these disadvantages.

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The IRC and the Georgetown Institute for Women Peace and Security's briefing highlights the disadvantages displaced women and girls face in terms of their justice, inclusion and safety and calling for targeted support. Even before the COVID-19 pandemic, displaced women generally faced much higher risks than host community women of violence at home, were consistently less likely to be financially included, and often experienced less freedom of movement. Now, the pandemic has only compounded these disadvantages.

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The Women Peace and Security Index: A new lens on forced displacement - World

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The IRC and the Georgetown Institute for Women Peace and Security's briefing highlights the disadvantages displaced women and girls face in terms of their justice, inclusion and safety and calling for targeted support.

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Women in Refugee Law, Policy and Practice: An Introduction to The Refugee Survey Quarterly Special Issue - Moira Dustin, Christel Querton

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Women in Refugee Law, Policy and Practice: An Introduction to The Refugee Survey Quarterly Special Issue - Moira Dustin, Christel Querton

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As co-founders and conveners of the Women in Refugee Law (WiRL) network, we are delighted to introduce this Special Issue. The contributors are WiRL members who take forward the network’s objectives of recentring the study of refugee women by reviewing the state of protection in domestic jurisdictions and internationally, identifying setbacks to adequate protection for women at risk of persecution, and proposing inclusive ways forward.

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Non-State Actors of Protection and the Sliding Scale of Protection for Refugee Women - Christel Querton

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Non-State Actors of Protection and the Sliding Scale of Protection for Refugee Women - Christel Querton

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Law School, Faculty of Business and Law, University of the West of England, Bristol, UK. Email: Christel.Querton@uwe.ac.uk

The article argues that endorsing non-State actors of protection, such as male family members and undefined social networks, amounts to a requirement that women seeking asylum take action to avoid being persecuted by placing themselves under the protection of those private actors. This is contrary to international refugee law doctrine, fails to consider the possibility of new forms of harm and is, in itself, a breach of women’s human rights.

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Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”)

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Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”)

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By Ruma Mandal

Page 62: Issues Particularly Affecting Women and Children

Page 73: Vulnerable non-nationals (e.g. single pregnant women, disabled persons, women victims of domestic violence) are sometimes recognised as refugees for humanitarian reasons even if they do not meet the criteria in the statutory refugee definition.

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Chapter 27: Trafficking in Human Beings in  EU Immigration and Asylum Law  

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Chapter 27: Trafficking in Human Beings in  EU Immigration and Asylum Law  

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Authors: Steve Peers and Nicola Rogers
Council Framework Decision on combating trafficking in human beings

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"Chapter 27. Trafficking in Human Beings" published on 01 Jan 2006 by Brill | Nijhoff.

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The EU Temporary Protection Directive in Practice 2022

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The EU Temporary Protection Directive in Practice 2022

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This paper demonstrates several good examples of innovative tools and measures deployed by the EU countries, including enhanced registration, access to information on procedures, expedited issuance of documentation, systemic approaches with multiple service providers operating in a sequential manner ("under one roof"), increased use of technology and digitalisation of systems including to lodge applications; as well as ensuring stronger linkages between status and rights.

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The Russian Federation military offensive in Ukraine has triggered unprecedented displacement across Europe, with approximately 4.9 million refugees from Ukraine as of 13 June 202221 . While the majority of these refugees are hosted in countries neighbouring Ukraine, substantial numbers have progressively moved onwards within the European Union and elsewhere.

UNHCR has welcomed the decision to activate the Temporary Protection Directive in European Union Member States as one way to provide immediate protection from refoulement and basic standards of treatment for refugees, including access to accommodation, labour market, and social and health services. Temporary protection systems are considered complementary to the international refugee protection regime, being effectively used as an emergency response to the large-scale movement of asylum-seekers.

As of 13 June 2022, approximately 3.2 million individuals have registered for Temporary Protection or similar national protection schemes in Europe.

The application of temporary protection in Europe is unprecedented and its practical implementation demonstrates how to manage mass flows in a manner that provides recognition of international protection needs and guarantees swift access to safety, documentation and rights.

This initial non-exhaustive compilation of practices, drawing from examples of how Temporary Protection applications have been assessed, aims to provide guidance and inspiration to governmental and non-governmental actors on how protection and assistance needs may be assessed in a timely, fair and efficient manner.

The practices outlined in this paper are likely to generate efficiencies if they are extended beyond processing applications for Temporary Protection and are equally applied to asylum procedures. UNHCR has previously noted how the effective processing of asylum applications can be achieved through better system design, innovative tools and measures and practical responses to systemic challenges.

As this paper demonstrates, several of these approaches have been effectively deployed in the context of Temporary Protection, including enhanced registration, access to information on procedures, expedited issuance of documentation, systemic approaches with multiple service providers operating in a sequential manner ("under one roof"), increased use of technology and digitalization of systems including to lodge applications; as well as ensuring stronger linkages between status and rights.

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The EU Temporary Protection Directive in Practice 2022 - World

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The Russian Federation military offensive in Ukraine has triggered unprecedented displacement across Europe, with approximately 4.9 million refugees from Ukraine as of 13 June 202221 . While the majority of these refugees are hosted in countries neighbouring Ukraine, substantial numbers have progressively moved onwards within the European Union and elsewhere.

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Spotlight on practices regarding guardianship for unaccompanied and separated children arriving in the EU from Ukraine - Collected through the European Guardianship Network

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Spotlight on practices regarding guardianship for unaccompanied and separated children arriving in the EU from Ukraine - Collected through the European Guardianship Network

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Good Practices from some countries!

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Activation of the Temporary Protection Directive

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Activation of the Temporary Protection Directive

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Temporary protection is an exceptional measure to provide immediate and temporary protection to displaced persons from non-EU countries and those unable to return to their country of origin.

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FAQs received on the interpretation of the Temporary Protection Directive and Council Implementing Decision 2022/382

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FAQs received on the interpretation of the Temporary Protection Directive and Council Implementing Decision 2022/382

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COMMUNICATION FROM THE COMMISSION on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection

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COMMUNICATION FROM THE COMMISSION on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection

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From here:

In March 2022, the European Commission issued Operational guidelines on implementing the Temporary Protection Directive and the Council implementing Decision, including important chapters on Unaccompanied Minors (Chapter 5) and Trafficking in Human Beings (Chapter 6) noting that the majority of people fleeing Ukraine are women and children who need to be protected against violence and abuse.

While shelter and education seem ensured to a large extent, finding jobs remain a challenge for Ukrainian refugees.

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Explore all HELP (Human Rights Education for Legal Professionals) online courses, which are accessible for free in English and other languages.

To enrol in any of the Council of Europe HELP courses for self-study, scroll down this page and click on the language code under the course picture. Once completed, you can print out a statement of accomplishment.

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Council of Europe HELP courses for self-study, scroll down this page and click on the language code under the course picture. Once completed, you can print out astatement of accomplishment.

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Asylum and Human Rights: Council of Europe and UNHCR launch new HELP online course

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Asylum and Human Rights: Council of Europe and UNHCR launch new HELP online course

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Lanzarote Committee: Follow-up given by Parties to the Special Report on “Protecting childrenaffected by the refugee crisis from sexual exploitation and sexual abuse”

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Lanzarote Committee: Follow-up given by Parties to the Special Report on “Protecting childrenaffected by the refugee crisis from sexual exploitation and sexual abuse”

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Compliance report concerning Recommendation 31 on child friendly proceedings

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Lanzarote Committee: Follow-up given by Parties to the Special Report on “Protecting childrenaffected by the refugee crisis from sexual exploitation and sexual abuse”

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Lanzarote Committee: Follow-up given by Parties to the Special Report on “Protecting childrenaffected by the refugee crisis from sexual exploitation and sexual abuse”

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Compliance report concerning Recommendation 12 on prosecution of offenders.

North Macedonia page 32.

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Protection of children affected by the refugee crisis from sexual exploitation and sexual abuse: States’ main obligations under the Lanzarote Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse

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Protection of children affected by the refugee crisis from sexual exploitation and sexual abuse: States’ main obligations under the Lanzarote Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse

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Guidance Note on addressing the risks of trafficking in human beings related to the war in Ukraine and the ensuing humanitarian crisis

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Guidance Note on addressing the risks of trafficking in human beings related to the war in Ukraine and the ensuing humanitarian crisis

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Group of Experts on Action against Trafficking in Human Beings (GRETA)

The Guidance Note addresses a broad range of issues such as registration and safe routes, immediate assistance and integration, information and awareness-raising, detection of potential victims and traffickers, vulnerable groups, as well as co-operation, co-ordination and data collection.

It follows on previous work developed by GRETA, notably the Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection, and complements recommendations issued by other international actors, such as the OSCE Special Representative and Coordinator for Combatting Trafficking in Human Beings.

As the purpose of this Guidance Note is to focus on preventive measures, it does not seek to be exhaustive and does not tackle questions related to, for example, access to justice for victims of trafficking.

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine. The meeting focused on the risks of human trafficking amid the current crisis and measures being taken to address vulnerabilities of people on the move and to prevent trafficking.

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VIENNA, 15 March 2022 - The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine. The meeting focused on the risks of human trafficking amid the current crisis and measures being taken to address vulnerabilities of people on the move and to prevent trafficking.

Opening the meeting, Richey briefed national authorities about his visit to the Polish-Ukrainian border on 13 and 14 March, where he assessed the robust efforts carried out by Polish authorities to accommodate and support people entering the country.

Government representatives from Austria, France, Germany, Romania and Slovakia also presented their national measures to respond to the crisis. These include monitoring of online searches (a spike was noted in searches for Ukrainian women for sex and marriage), and distributing leaflets translated into Ukrainian to inform people on the move of their rights and options. Representatives from the EU Commission presented the temporary protection mechanism quickly established by the EU, which includes a temporary residence permit and access to the job market.

Over three million people have left Ukraine in the past weeks, crossing its Western borders into other European countries. These people, mostly women and children, are particularly vulnerable and face significant risks of human trafficking during their journey or upon arrival at a destination country. To respond to these risks and to provide governments with concrete guidance on how to address vulnerabilities and reduce risks of trafficking, the Office of the OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings issued a set of policy recommendations for countries.

"The way we are going to prevent the current humanitarian crisis from turning into a human trafficking crisis is by investing in prevention and by protecting vulnerable people" said Richey.

The complete set of recommendations is available on the OSCE website: www.osce.org/cthb/513784

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OSCE States meet to discuss anti-trafficking prevention measures amid humanitarian crisis in Ukraine

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VIENNA, 15 March 2022 - The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings Valiant Richey today called together the anti-trafficking authorities from 17 OSCE participating States, including the ones most affected by the unfolding humanitarian crisis in Ukraine.

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COEHELP e-Desks on asylum/migration for lawyers assisting people fleeing the war in Ukraine

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COEHELP e-Desks on asylum/migration for lawyers assisting people fleeing the war in Ukraine

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To assist lawyers from most affected countries dealing with the influx of war refugees, mostly women, girls and boys, the Council of Europe took immediate steps, thanks to the flexibility of its Human Rights Education for Legal Professionals (HELP) Programme, and the coincidental start of the EU-funded “HELP in the EU III” project. As European Bar associations are members of the HELP Network and there is a sound basis of HELP tutors (many of them also experts on asylum/migration), HELP could rapidly respond via tailored legal support – that can evolve as we go through all stages of conflict, peace-building and post-conflict.

Thus, as of 1 March 2022, virtual Asylum/Migration HELP e-Desks were set up, managed by HELP tutors and legal experts to support lawyers assisting refugees from Ukraine in four EU neighbouring countries (Romania, Slovakia, Hungary and Poland) with EU financial support, as well as in Moldova, with Council of Europe's own funding.

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COEHELP e-Desks on asylum/migration for lawyers assisting people fleeing the war in Ukraine

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Thus, as of 1 March 2022, virtual Asylum/Migration HELP e-Desks were set up, managed by HELP tutors and legal experts to support lawyers assisting refugees from Ukraine in four EU neighbouring countries (Romania , Slovakia , Hungary and Poland ) with EU financial support, as well as in Moldova , with Council of Europe's own funding.

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What can the EU do to better protect refugees? 

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What can the EU do to better protect refugees? 

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The Children of the Contact Line in East Ukraine 2017 - Assessment Update

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The Children of the Contact Line in East Ukraine 2017 - Assessment Update

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Three things differentiate this assessment from the previous one.

First, this assessment was conducted in parallel with the 2017 Education Cluster School Survey, which covers all of government-controlled Donetsk and Luhansk Oblasts creating a more comprehensive picture of the situation in the two regions and allowing findings from the contact line to be compared with areas further away. Data from that survey will be cited in this assessment.

Second, some themes were added or expanded from the previous assessment, such as questions on social services and detailed mapping of the proximity of military sites to educational facilities.

Finally, following the 2017 health facilities assessment and initial interviews that indicated little substantial change in the situation, collection of information on health and HIV and AIDS was very limited for this assessment.

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

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By Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***(2022)
Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk

For this temporary protection to be effectively deployed, however, the Council must first establish that the displaced persons fleeing amount to a ‘mass influx’.[16] As this decision is subject to a qualified majority of votes,[17] the TPD had never before been activated, although Italy, supported by Malta, unsuccessfully submitted a proposal in 2011.[18]

In this sense, the recent adoption of the Decision establishing the existence of a ‘mass influx’ of displaced persons,[19] and the resulting activation of the TPD, opens up new ground in the history of European migration policy and highlights emerging challenges for the interpretation of TPD provisions. The purpose of the present study is to examine two particular challenges which may limit the scope of the TPD and affect its primary purpose to promote solidarity and burden-sharing among EU Member States.[20]

The first challenge concerns the personal scope of the Directive’s temporary protection.

[...]

The second issue concerns the social protection-related provisions of the TPD. Despite their innovative features, their substance remains unclear.

[...]

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine | Oxford University Comparative Law Forum

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(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

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Principles and Guidelines supported by practical guidance, on the human rights protection of migrant on vulnerable situations

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Principles and Guidelines supported by practical guidance, on the human rights protection of migrant on vulnerable situations

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Where migrants fall outside the specific legal category of “refugee”, it may be especially important to ensure that their human rights are respected, protected and fulfilled. Some migrants will need specific protection because of the situations they left behind, the circumstances in which they travel or the conditions they face on arrival, or because of personal characteristics such as their age, gender identity, disability or health status.

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IOM Handbook on Protection and Assistance to Migrants Vulnerable to Violence, Exploitation and Abuse

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IOM Handbook on Protection and Assistance to Migrants Vulnerable to Violence, Exploitation and Abuse

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This handbook presents the determinants of migrant vulnerability (DOMV) model for analysing and responding to migrant vulnerability. The DOMV model is specifically designed to address the protection and assistance needs of a specific subset of migrants: those who have experienced or are vulnerable to violence, exploitation and abuse before, during or after the migration process.

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IOM Handbook on Protection and Assistance to Migrants Vulnerable to Violence, Exploitation and Abuse | IOM Publications Platform

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This handbook presents the determinants of migrant vulnerability (DOMV) model for analysing and responding to migrant vulnerability. The DOMV model is specifically designed to address the protection and assistance needs of a specific subset of migrants: those who have experienced or are vulnerable t…

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Forced displacement from Ukraine: notes on humanitarian protection and durable solutions

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Forced displacement from Ukraine: notes on humanitarian protection and durable solutions

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Introduction
The Russian invasion of Ukraine February 24 2022 marks the start of a new displacement crisis. In a statement on February 24, Filippo Grandi, the High Commissioner for Refugees, emphasized that 'The humanitarian consequences on civilian populations will be devastating. There are no winners in war, but countless lives will be torn apart. We have already seen reports of casualties and people starting to flee their homes to seek safety'. UN officials estimate up to 4 million people could leave Ukraine if the situation deteriorates. As of March 4, 1.2 million people had fled Ukraine to other countries in the region.

Ukraine was one of 15 republics of the Soviet Union and became an independent state in 1991. Ukraine is a 2002 signatory to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. As of January 2022, it had a population of approximately 43 million. The country is bordered by Russia, Belarus, Poland, Slovakia, Hungary, Romania and Moldova. To contribute to the understanding of the evolving displacement context and the implications for the international protection regime and durable solutions, this blog provides a set of initial reflections. We draw on our backgrounds in refugee and migration studies to do four things:

First, we survey scholarship on displacement and the Ukrainian context. The bibliography of sources used in this blog is provided at the end.

Second, drawing on this literature, we provide a brief background context, sketching displacement occurring over the past century.

Third, we pay special attention to Ukraine in the context of contemporary refugee politics, with a view to understand Ukraine as a receiving country, as hosting a large internally displaced population and as a refugee-producing entity prior to 2022.

Fourth, we begin to carve out a list of initial issues concerning vulnerability, prioritization and pathways with a view to support advocacy on behalf of Ukraine.

1. A tentative state of the art
As part of this reflection, we have surveyed a set of key (English language) journals in refugee, migration and humanitarian studies to map out existing scholarship on displacement and the Ukrainian context. We are aware these are Global West publications and reflect what is visible in these areas of research, rather than a comprehensive overview of existing knowledge. In doing this work, we have also observed that there are important contributions published in law, area studies, history and cultural studies. Note that we mostly bracket Holodomor studies (see here and here) in this exercise.

Journals such as Refugee Survey Quarterly and the International Journal of Refugee Law have not published on Ukrainian displacement. In the Journal of Refugee Studies, there are a few contributions on internal displacement and elections ( Woroniecka-Krzyzanowska and Palaguta 2017); and politicization of religious actors as humanitarian providers and state failure ( Leustean 2021). Forced Migration Review has published shorter interventions on asylum seekers in Poland ( Szczepanik and Tylec 2016) and shelter ( Dean 2017; Wetterwald and Thaller 2020) and also hosts older contributions on deportees ( Uehling 2008) and statelessness ( de Chickera and Whiteman 2014). As noted in an interesting contribution in a US law journal, surprisingly little attention has been given to the continued refugee resettlement of Ukrainians to the US on the grounds of religious persecution ( Klokiw 2019).

The Journal of Ethnic and Migration Studies features a substantial gender oriented literature on labor market participation, transnational marriages, motherhood (i.e. Górny and Kępińska 2004; Kindler and Szulecka 2013) but no contributions focusing on displacement and conflict in Ukraine. The International Migration Review is home to some older scholarship on Ukraine and European migration ( Shamshur 1992) and on post-war Ukrainian refugee resettlement to Canada ( Luciuk 1986). International Migration has a contribution on legal and illegal migration in the 2000s ( Uehling 2004); and Migration Studies features publications on internal displacement ( Uehling 2021) and socio-legal aspects of return migration ( Kubal 2015). While we have found few scholars with a large body of published scholarship in this topical area, it might be noted that Greta Uehling, an anthropologist at the University of Michigan has been an important and prolific contributor to this field for more than two decades.

In the adjacent field of humanitarian studies Journals such as Disasters, the Journal of Humanitarian Affairs and the Journal of Humanitarian action have nothing on Ukrainian displacement (though note Ukraine focus as part of the large scholarship on famine relief ( Werther 2021). A contribution on Polish aid to Ukrainian internally displaced people (IDPs) is published in Humanitarian logistics( Piotrowicz 2018).

While the academic specialist fields of refugee and forced migration studies have a limited track record on Ukraine, a larger body of work on forced displacement can be found in area studies, (with a key point of reference being a special issue in Europe-Asia Studies 72.3 (2020)). This includes research on the IDPs ( Kuznetsova and Mikheieva 2020) in Crimea ( Charron 2020) and Donbas ( Sereda 2020; Sasse and Lackner 2020); media representations of IDPs ( Rimpiläinen 2020) IDPs and public space ( Lazarenko 2021) and gender ( Kuznetsova 2021; Khrystova and Uvarova 2022); humanitarian crisis ( Scrinic 2015; Quinn 2015; Bulakh 2017).
2. A century of Ukrainian displacement and resettlement
In the following, drawing on historical scholarship and scholarship in history, we provide a brief chronology of displacement in Ukraine over the past century. There was substantial out-migration to North America prior to the First World War ( Chyz 1939). Between the early 1920s and 2020, Ukraine - until after the Second World War divided into Western and Eastern Ukraine - has experienced numerous periods of mass emigration, forced relocation and displacement. Before the first World War, poverty and land scarcity led to large scale migration from Western Ukraine (then part of the Austro-Hungarian Empire and later Poland and Romania) to North America. In the East, peasants were subjected to massive, forced relocations to other parts of the Czarist empire. The annexation and deportation continued under Stalin. The Holodomor - to kill by starvation - was a man-made famine in Soviet Ukraine between 1932-1933 that killed millions of Ukrainians. The famine was exacerbated by the governments rejection of outside aid, confiscation of household foodstuffs and the restriction of population movements ( Basciani 2011). In addition to ethnic Ukrainians, national minorities were also oppressed and deported in the 1930s and 1940s (ethnic Germans, Crimean Tatars, Poles, Bulgarians, Armenians, and Greeks) ( Malynovska 2006). As the international refugee regime began taking shape, the emergence of anti-immigration laws in the US (the Immigration Act of 1917, the Emergency Quota Act of 1921, and the Immigration Act of 1924) significantly curtailed transnational Ukrainian migration. Groups displaced by the first world war were again displaced by World War II from reception countries in eastern Europe ( Kulischer 1949).

The Second World War took an enormous toll on Ukraine. While there are no reliable numbers available, 5 to 7 million people are estimated to have died, and an estimated additional 2.3 million Ukrainians were sent to Germany to perform forced labor. The repatriation agreement signed by Allied powers in at the Yalta conference in February 1945 categorized Ukrainians from the East as Soviet subjects to be forcibly repatriated to the USSR, and many fought to gain recognition as refugees. Ukrainian Displaced Persons (DPs) residing in the German, French, and British zones of temporary occupation at the end of the Second World War were a very mixed group comprising of Ukrainian prisoners of war taken by the Soviets, guerillas fighting against the Soviets, slave labor for the Nazis and Nazi-sympathizing Ukrainians. After the War, this group became classified as political refugees ( Stebelsky 1991). In terms of overseas resettlement, in 1947, in a first for Australia, the country joined Argentina, Canada and the US in resettling DPs as part of the International Refugee Organization (IRO) resettlement agreement ( Persian 2018). Post-war resettlement to Canada was a short-lived affair, due to conflicts between the established diaspora community and arriving DPs ( Luciuk 1986). With respect to the US, of the 352,000 people admitted to the US under the Displaced Persons Act of 1948, 15 percent were Ukrainian, and most were Ukrainian speakers from Western Ukraine. Most Ukrainian immigrants were subject to the limitations that the National Origins Quota System regulating immigration from 1924 to1965. A specific case concerns the postwar trajectories of ethnic Germans (Volksdeutsche) from Ukraine. Under Nazi resettlement, this population had ended up in Germany and Austria. While not eligible to be assisted by IRO, some did seek assistance. Broadly belonging to Catholic, Protestant, and Mennonite faith groups, the latter was comparatively much more successful in utilizing religious networks for overseas emigration. While individual efforts to switch national identification mostly failed and petitioners living in 'mixed' marriages had some success, the well-organized Mennonites managed a 'collective conversion' from German to Dutch nationality and resettled as a group ( Panagiotidis 2020). By 1955 only about 250,000 of the 2.3 million Ukrainians displaced because of World War II had been allowed to relocate abroad ( Wenner 2010). By 1952, most Ukrainian refugees in DP camps had been resettled ( Dyczok 2000).

In the post-World War period, religion has been a key structuring factor in resettlement. Post-World War II Ukrainian refugees tended to be Orthodox and Ukrainian Catholic; beginning especially in the late 1970s, numerous Soviet Jewish refugees arrived in the US ( Basok and Brym 1991), along with smaller populations of Evangelicals, Baptists and Pentecostals. As president Gorbachev's glasnost policy allowed people to apply for emigration on the grounds of religious persecution, refugees from various evangelical faiths settled at the end of the Cold War. Ukraine experienced economic crisis from the late 1980s until the late 2000s, engendering high outward migration. However, it was the 1990 Lautenberg Amendment that became a primary driver of Ukrainian immigration to the United States. On denominational grounds, Ukrainians were admitted as religious groups with a lesser group-based burden of proof with respect to discrimination. While initially intended as a temporary protection mechanism for persecuted religious minorities in the Soviet Union, it has become a central gateway for Ukrainian Jews, Catholics, Orthodox, Pentecostal, Baptist and Evangelicals ( Klokiw 2019).

Whereas the 2001 USA PATRIOT Act took refugee admissions under 30,000 per year. Between 2001 and 2003, the US maintained a separate designation, and an associated quota, for countries from the 'former Soviet Union.' This quota was removed in 2004, when Ukraine was integrated into a broader 'Europe' refugee quota which led to a rapid decline of admissions. Nevertheless by 2011, Ukraine was among the ten countries with the most refugee arrivals (Capps 2015) during FY 2000 through FY 2011. By 2013, only 227 Ukrainian refugees were admitted ( Klokiw 2019). At the Russian occupation of Crimea and the subsequent arrival of the Trump administration, the numbers surged again. While the Trump administration slashed the resettlement quota, by 2019, Ukrainians were one of the top groups resettled as refugees in the United States, with a 75 percent growth in arrivals. On a parallel track, Ukrainians have received high admissions under US visa schemes, making up the highest portion of overall European admissions from 2009 to 2018 ( Klokiw 2019).
3. The politics of displacement prior to the 2022 invasion
Ukraine has since the end of the Soviet Union been a country of origin, transit and arrival for forced migration, as well as a provider of 'durable solutions' for ethnic Ukrainians returning to the country form which they had been exiled during the Soviet era.

In the 1990s, the ethnic composition of Ukraine changed significantly. Many ethnic Russians left, and many ethnic Ukrainians returned, including Tatars originally from Crimea, whose returned population increased fivefold between 1989 and 2001. Returnees arriving after the adoption of a new citizenship law in November 1991 did not have Ukrainian citizenship on arrival, as the new law linked citizenship to permanent residence in Ukraine. A sizable population was stateless, as Tatars also had not been granted citizenship of the ex-Soviet Republic in which they lived before their departure. The population from ex-Soviet Republics in which there were conflicts also increased, including from Armenia, Azerbaijan and Georgia.

Ukraine developed a refugee protection framework from the 1990s, with the adoption of the Law on Refugees in 1993, the opening of a UNHCR Liaison Office in Kyiv in 1995, the ratification of the 1951 Geneva Convention and its 1967 Protocol in 2002. Asylum claims were processed from 1993. Asylum procedures were criticized as weak, with high levels of forced returns for instance of Chechens. Still, Ukraine recognizes several thousands of refugees a year, and this in some years has included sizable contingent of Afghan refugees since the 1990s. Ukraine in the 1990s was also a country of transit for irregular migrants, with 100 000 migrants being detained at its western borders between 1991 and 2003. Human trafficking, particularly of young women, also increased in the 1990s, and Ukraine ratified the UN Convention against Transnational Organized Crime in 2000. With the expansion of the European Union in 2004, and the perspective of an association agreement with Ukraine, the European Union focused on capacity building and contributed to fund asylum processing centres.

The suspension of negotiations of the EU association agreement by a pro-Russia government in 2013 led to the Maidan protests in Kyiv and a pro-European regime change the following year, rapidly followed by Russia's occupation of Crimea. 5.2 million people were affected by the conflict and 1.6 million were displaced within and outside Ukrainian borders, Ukrainian IDPs have moved westward. As of 2019, there were 1.4 million IDPs in Ukraine, the 12th-largest population of IDPs worldwide Outside the borders, most Ukrainians sought refuge in Russia, but many also went to European Union countries, where the refugee recognition rate was very low - many Ukrainian nationals did not apply for asylum.

As of 2020, the main countries of origin of refugees and asylum seekers in Ukraine were Afghanistan, Syria, Russia and Bangladesh (the latter almost only asylum seekers), with a total of 2249 refugees and 2359 asylum seekers. There were also 35,875 stateless people. Besides, at the end of 2019, IOM estimated that there were between 37,000 and 60,900 irregular migrants in Ukraine, of various nationalities, concentrated in large cities, and with the largest shares from South Asia, West Africa and the Horn of Africa. The majority were young men with secondary education who had arrived with valid visas as tourists or students.
4. Pointers for advocacy
How the exodus from Ukraine will play out remains to be seen. Many of the structural impediments to transit and (temporary) settlement are not present in the current context. Ukrainians don't require Schengen visas to enter the European union and can stay for up to 90 days. Furthermore, in an unprecedented move, Slovakia admits Ukrainians without valid passports 'if they pass an individual assessment conducted by border officials'. Poland has also explained that they will admit those without valid documents. At the supranational level, the European Union has for the first time triggered the adoption of the EU temporary protection directive. The directive grants immediate protection, to Ukrainians and non-Ukrainians legally residing in Ukraine and fleeing toe war for one year. In terms of the traditional framework for durable solutions, traditional overseas resettlement countries have announced visa extensions for Ukrainians and priority processing of family reunification. Ukrainian diasporas, for instance in Canada, which hosts of one of the largest population with Ukrainian origins, are mobilizing resources to support their fellow nationals. Canada has also announced an emergency, two-year temporary protection measure for Ukrainian nationals fleeing the war, with no ceiling on eligible applications. Public opinion and politicians at municipal and provincial levels have signaled they will welcome Ukrainian refugees. Several countries are pressured to do more than the changes they first announced, such as the UK and Australia.

At the same time, vulnerability is gendered: all men between 18 and 60 have been conscripted and denied exit from the country. Also, Ukrainian men are currently prevented from leaving Ukraine so as to be available in case of mass mobilization and this appears to disregard concerns for men in vulnerable situations or the impact of family separation. From this perspective, gender-based advocacy focusing on men is necessary, especially as it has not been a priority in refugee advocacy.

Furthermore, the politics of solidarity are not universal: solidarity with Ukrainian refugees does not seem to apply to non-White people also fleeing Ukraine. Instances of discrimination and racism has been reported in Ukraine and at the Polish borders, with African students in Ukraine being trampled on or stopped from fleeing by border guards. The situation has been denounced by the African Union. All advocates should support fair treatment for all people affected by the war regardless of their ethnicity and migratory status.

Finally, vulnerability is tiered. The invasion has meant further displacement for refugees who had fled to Ukraine, such as Afghans who had fled the Taliban's return to power in 2021. Governments and civil society providing support to forced migrants from Ukraine should ensure non-Ukrainians are not just not discriminated against, but rather prioritized given their particular vulnerability.

We don't know how long the invasion will last, what kind of conflict this will develop into and what the civilian toll will be. Our intervention, albeit a tentative exercise, aims to provide a background context for discussions - both scholarly and in various practitioner and activist communities - about humanitarian protection and durable solutions moving forward.
Kristin Bergtora Sandvik, Cand.jur UiO 2002, S.J.D Harvard Law School 2008, is Research Professor in Humanitarian Studies, PRIO Professor of Sociology of Law, Department of Criminology and Sociology of Law, University of Oslo. Adèle Garnier is an Assistant Professor and the Director of undergraduate studies at the Department of geography, Université Laval, Canada. We would like to thank Greta Uehling for her careful reading and encouragement to publish this blog. Provisional bibliography
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Basok, Tanya, and Robert J. Brym. "Soviet‐jewish emigration and resettlement in the 1990s an overview." Innovation: The European Journal of Social Science Research 4.3-4 (1991): 359-372.

Bulakh, Tania. "'Strangers among ours': State and civil responses to the phenomenon of internal displacement in Ukraine." Migration and the Ukraine Crisis (2017): 49.

Capps, Randy, et al. "Integrating refugees in the United States: The successes and challenges of resettlement in a global context." Statistical Journal of the IAOS 31.3 (2015): 341-367.

Charron, Austin. "'Somehow, we cannot accept it': Drivers of internal displacement from Crimea and the forced/voluntary migration binary." Europe-Asia Studies 72.3 (2020): 432-454.

Chyz, Yaroslav J. The Ukrainian immigrants in the United States. Ukrainian Workingmen's Association, 1939.

Dean, Laura A. "Repurposing shelter for displaced people in Ukraine." Forced Migration Review 55 (2017): 49-50.

Dean, Laura A. "The Diffusion of Human Trafficking Policies in the Post-Soviet Region: A Comparative Analysis of Policy Adoption in Ukraine, Latvia, and Russia" Journal of Comparative Policy Analysis 19.5 (2017): 403-418.

de Chickera, Amal, and Joanna Whiteman. "Discrimination and the human security of stateless people." Forced Migration Review 46 (2014): 56.

Dyczok, Marta. "The Last Phase of Displacement (Summer 1947-January 1952)." The Grand Alliance and Ukrainian Refugees. Palgrave Macmillan, London, 2000. 148-170.

Górny, Agata, and Ewa Kępińska. "Mixed marriages in migration from the Ukraine to Poland." Journal of Ethnic and Migration Studies 30.2 (2004): 353-372.

International Organisation for Migration. Irregular Migrants in Ukraine, Analytical Summary. 2019. https://iom.org.ua/sites/default/files/irregular_migrants_in_ukraine_eng.pdf

Khrystova, Ganna, and Olena Uvarova. "Gender Component of Internal Displacement in Ukraine: A Case of Business (In) Capability to Localize Human Rights Impact Assessment." Business and Human Rights Journal (2022): 1-

Kindler, Marta, and Monika Szulecka. "The economic integration of Ukrainian and Vietnamese migrant women in the polish labour market." Journal of Ethnic and Migration Studies 39.4 (2013): 649-671.

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The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog - please see here for contribution guidelines.

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Forced displacement from Ukraine: notes on humanitarian protection and durable solutions - Ukraine

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Introduction The Russian invasion of Ukraine February 24 2022 marks the start of a new displacement crisis. In a statement on February 24, Filippo Grandi, the High Commissioner for Refugees, emphasized that 'The humanitarian consequences on civilian populations will be devastating. There are no winners in war, but countless lives will be torn apart.

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The EU grants Temporary Protection   for people fleeing war in Ukraine

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The EU grants Temporary Protection   for people fleeing war in Ukraine

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On the State's duty to protect anyone fleeing Ukraine (and other conflict zones)

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On the State's duty to protect anyone fleeing Ukraine (and other conflict zones)

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Chiara Scissa, PhD candidate - Scuola Superiore Sant'Anna

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Since the beginning of the Russian war against Ukraine and as of 18 March 2022, more than 3.2 million people have left the country, seeking refuge mainly in EU neighboring States, such as Poland, Romania, and Hungary. The EU is expecting to receive up to 6.5 million people, thus potentially compromising the functioning of national asylum and reception systems of the EU Member States exposed to massive conflict-driven inflows. For these reasons, on 4 March 2022, the Council of the European Union decided to implement Directive 2001/55/EC on Temporary Protection for the very first time since its adoption in 2001. Indeed, temporary protection is an emergency mechanism that can be applied in cases of mass influx due to, inter alia, conflicts, systemic violence or violations of human rights to provide immediate and collective protection, i.e. bypassing the examination of individual protection claims that in a situation of emergency might not be feasible. By providing protection on a collective basis, this instrument ultimately aims to comply with the principles of non-refoulement and of non-discrimination, by ensuring a safe place to everyone in need.
For the purposes of this contribution, we will particularly focus on the latter principle, which is not only a general principle of international law and of international refugee protection, but it is also essential to define and implement the 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol, which provide the cornerstone of the international legal regime for the protection of refugees. Indeed, discrimination on account of race, nationality, political opinion, religion, and membership of a particular social group is at the core of the well-founded fear of persecution. Discrimination of any kind leading to unlawful exclusion, restriction or privilege that has the effect of nullifying a particular right is forbidden under the 1948 Universal Declaration on Human Rights (articles 2 and 7). The 1951 Refugee Convention clearly states that provisions enshrined therein must be applied without discrimination as to race, religion, or country of origin (article 3). The EU legal order has embedded the principle of non-discrimination not only as a cross-cutting, underlying component of the fundamental rights of the individual in general (article 21 of the EU Charter of Fundamental Rights), but also in relation to refugees and migrants in particular, by virtue of binding all Member States to implement the Common European Asylum System in full compliance with the principle of non-discrimination.

The Council Implementing Decision (EU) 2022/382 on temporary protection of 4 March 2022, however, seems to deviate from these grounding principles of international law by creating three categories of people who, despite sharing the same cause of forced migration, 1) are automatically entitled to temporary protection; 2) may still hope to be considered for temporary protection; 3) will very unlikely be entitled to temporary protection.
Indeed, the Council decided to automatically apply temporary protection to Ukrainian citizens residing in Ukraine before 24 February 2022; international protection holders residing in Ukraine before 24 February 2022; their respective family members, including close family ties and relatives living together as part of the family unit when the war started and who are wholly or mainly dependent on the holder. Foreigners living in Ukraine with a valid permanent residence permit and who are unable to return in safe and durable conditions to their country or region of origin should also be provided with temporary protection or another adequate protection status available at the national level (article 1, paras 1-2).
The Council Decision then moves to the second category of people, whose entitlement to temporary protection is left to the discretional decision of single Member States, pursuant to article 7 of Directive 2001/55. The Member States are therefore encouraged, but not obliged, to extend temporary protection to foreigners residing in Ukraine with a valid yet short-term residence permit, for instance for job or education purposes (article 2, para. 3). Similarly, Member States are invited to consider extending temporary protection to those persons who left Ukraine not long before 24 February 2022 or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and are thus unable to return (preambular para. 14). Although the aim of the Directive and of the Council Decision is to encourage States to expand the scope of application of Temporary Protection to additional categories of people in need, the discretional power left to the Member States risks creating a boomerang effect, as it risks damaging both people fleeing the armed conflict and the EU States themselves. Indeed, the fragmented entitlement to temporary protection may lead to disproportionate flows of people belonging to this second category, who may head to those EU Member States where they will be entitled to temporary protection, thus continuing their journey across the EU instead of seeking refuge within the first EU country of entry, while exposing those Member States to increasing flows.
Finally, there is a third category that is composed of the unlisted, including international protection-seekers in Ukraine and irregular migrants, who are not mentioned in the Decision. The Member States are therefore not required to provide temporary protection to them nor are they encouraged to do so. The Council Decision does not explain the reason(s) behind this clear diversification of treatment, which seems to be based on the degree of stability and regularity of their position in Ukraine. As noted, "[t]he resulting picture is one leaving a high degree of legal uncertainty concerning the obligations of relevant Member States possessing an EU external border with Ukraine towards non-Ukrainian third country nationals, which can be expected to lead to inconsistent and potentially discriminatory national approaches ".

Despite some limitations, it is laudable that the members of the Council adopted this Decision by unanimity, showing unity and solidarity for the civilians fleeing the armed conflict as well as for the EU countries most exposed to their arrival. However, it is also important to pinpoint to previous mass migration movements triggered by civil or international conflicts that have been treated differently. Since its adoption in the aftermath of the war in ex-Yugoslavia, the Arab Springs in the Middle East and North Africa, the persisting civil wars in Syria and Afghanistan, and the instrumentalization of migrants that, despite the relatively small numbers, has been deemed to jeopardize the stability of three national asylum systems and to require an ad hoc emergency package, are all emblematic occasions in which Directive 2001/55/EC could have played a significant role in immediately protecting people from trauma, conflicts, and extreme violations of their rights, calling on States to show inter-state solidarity. Mass influx of people fleeing conflicts and systematic violations of their basic human rights perfectly fit within the scope of temporary protection, therefore the reason why EU institutions refrained from applying temporary protection in these events seems not to lie in its scope of application. An alternative reason why Directive 2001/55 has not been activated before might refer to the perception that previous numbers were not sufficiently high to reach the required threshold to qualify as "mass inflows". However, data suggests that at the peak of the so-called refugee crisis in 2015, 1.3 million Syrians arrived in Europe and asked for international protection. In that occasion, temporary protection had not been activated, in contrast with the current crisis, where, at the time the Council implementing Decision was adopted, the number of people arriving in the EU from Ukraine was as high as 650 thousand.
As stated by Carrera et al., "[a] comparison between the EU and Member States' responses to the large scale number of entries resulting from the Ukraine War with recent past policies and debates dealing with people fleeing conflicts in Libya, Syria or Afghanistan reveals a stark contradiction with the lack of political support by some EU Member States over the Commission and European Parliament's proposals for reforming the EU asylum system in 2015/2016. They also show the existence of latent structural discrimination as a key factor characterizing what is 'realistic' or not in EU asylum and migration policies" (See also İneli Ciğer and Schultz for similar comments).

All in all, the long-due activation of the Temporary Protection Directive is undoubtedly to be applauded. As recalled by Peers, the Council decision waives many basic EU asylum requirements, "but it raises obvious questions about the double standards which apply to others fleeing war or persecution".
In such circumstances, it is therefore crucial to recall the State's duty, under international refugee law, to protect everybody fleeing conflicts, regardless of the individual characteristics of those who are compelled to flee and of the geographical proximity of the armed conflict. In this context and in the author's view, the reluctance of the Union to apply temporary protection in previous cases, on the one hand, and the category-based issuance of temporary protection, on the other, risk colliding with international refugee law and with the principle of non-discrimination. As Carrera et al. conclude, the Council Decision "[...] does not seem objective, legally certain and does not apply consistent EU-wide treatment of non-Ukrainian nationals and asylum seekers fleeing Ukraine. This opens up a clear risk of discriminatory treatment during its implementation phases by Member States' authorities ".

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Contech Lab - Contenuti e Tecnologie - Università Roma, Bologna, Torino, Milano

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On the State's duty to protect anyone fleeing Ukraine (and other conflict zones)

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Since the beginning of the Russian war against Ukraine and as of 18 March 2022, more than 3.2 million people have left the country, seeking refuge mainly in EU neighboring States, such as Poland, Romania, and Hungary.

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Temporary Protection for Ukrainians in the EU?

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Temporary Protection for Ukrainians in the EU?

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Professor Steve Peers, University of Essex

"The point of a temporary protection regime is to reduce pressure on asylum systems, as the preamble to the Decision reiterates:

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation."

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Professor Steve Peers , University of Essex

Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure - the decision to trigger the EU's temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

Member States indicated 'broad support' for use of the Directive at the EU Council meeting of February 27. The Commission duly proposed a Decision to give effect to this on March 2, alongside guidance for applying EU external borders law. The Council agreed on the Decision on March 3, and formally adopted it on March 4. It applied from the same day. So to fully understand the legal rules now applying to those fleeing the invasion, it's necessary to discuss both the 2001 Directive and the 2022 Decision to give effect to it. What do these new rules mean for the hundreds of thousands - if not millions - of people now fleeing Ukraine?

EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in - although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive, but can choose to adopt its own rules on temporary protection if it wishes.

The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.

The Directive applies to a 'mass influx' of 'displaced persons'. A 'mass influx' is defined as:

...arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;

'Displaced persons' are defined as:

...third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;

'Article 1A of the Geneva Convention' refers to the definition of 'refugee' under the UN Refugee Convention - ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group - although note that the Directive does not necessarily apply only to those who fall within that refugee definition ('who may fall within'). Those fleeing Ukraine can point to the 'armed conflict' ground of the 'displaced persons' definition in this Directive - although note that the list of the two groups who are covered by the Directive is not exhaustive ('in particular'), meaning that other groups of people might meet the definition too.

Note also that the Directive only applies to those leaving 'their country or region of origin'. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their 'origin' is in Ukraine ('origin' is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: 'outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country' (or, if stateless, of their country of habitual residence).

Conversely, this means that the Directive does not apply to those whose 'origin' is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion - and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.

However, the scope of temporary protection is further defined in the Council decision, given that, according to the Directive, t he decision must specifythe groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.

According to the Decision, those covered by temporary protection are: 'the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date':

(a) Ukrainian nationals residing in Ukraine before 24 February 2022;

(b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,

(c) family members of the persons referred to in points (a) and (b).

The Decision applies in a different way to another category of people:

...stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.

For this group, 'Member States shall apply either this Decision or adequate protection under their national law'. Adequate protection is not further defined; the preamble adds only that it is 'to be decided upon by each Member State'. The preamble also refers vaguely to the procedure which would apply to this group:

Those seeking to benefit from the protection should be able to prove that they fulfil these eligibility criteria by presenting the relevant documents to the competent authorities in the Member State concerned. If they are unable to present the relevant documents, Member States should redirect them to the appropriate procedure.

Furthermore, the decision notes that, as referred to in the Directive:

Member States may also apply this Decision to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin.

The preamble gives an indication of who might fall within the scope of this option:

Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons.

And the preamble indicates that 'in any event' this group of fleeing people 'should...be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin'. This reflects the Commission's guidance on how to apply external borders law in light of the mass influx.

This does not exhaust the list of further groups of people who might be optionally covered, as the preamble goes on to say:

...Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.

Next, the Decision gives a definition of family members covered by temporary protection, 'in so far as the family was already present and residing in Ukraine before 24 February 2022':

(a) the spouse of a person referred to in paragraph 1, point (a) or (b), or the unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its national law relating to aliens;

(b) the minor unmarried children of a person referred to in paragraph 1, point (a) or (b), or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted;

(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a person referred to in paragraph 1, point (a) or (b) at the time.

The Directive is just a framework for a possible temporary protection system. So the temporary protection regime was not established automatically, but only because the Council (ie Member States' home affairs ministers), acting by a qualified majority on a proposal from the Commission, agreed that there is a mass influx of displaced persons. (In fact the vote in favour was unanimous).

According to the Directive, the Decision setting up temporary protection had to be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;

(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

This information can be found in the preamble.

The European Parliament has to be informed of the decision, but did not have a vote beforehand.

Also, the Council decision had to set out when temporary protection takes effect (in practice, as of March 4 2022); 'information received from Member States on their reception capacity'; and 'information from the Commission, UNHCR and other relevant international organisations'. Again, such information can be found in the preamble.
How many people does it apply to?
The numbers covered by temporary protection are not necessarily unlimited. Member States had to 'indicate - in figures or in general terms - their capacity to receive' displaced persons. The Council decision setting up temporary protection had to set out these numbers. In practice, there is only a brief mention of this point in the preamble: 'over and above the absorption capacity of the Ukranian [sic] diaspora residing in the Union' a few Member States have indicated that they have capacity exceeding 310 000 places Later on Member States 'may' declare that they have more reception capacity.

If the numbers who are 'eligible for temporary protection' is higher than the numbers that Member States have said they can accept, 'the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected'. It will remain to be seen what happens on this point.

If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications - but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.

The starting point is that temporary protection is one year long, although it can be terminated early if the Council decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so 'as to permit the safe and durable return' of the beneficiaries.

After the initial year, temporary protection is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.

Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter.

Also, Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The 'general law' regarding remuneration, social security, and other conditions of employment in each Member State applies.

As for social welfare and housing, Member States must ' ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing ', and ' shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care' - which 'shall include at least emergency care and essential treatment of illness'. Member States must also ' provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence. '

For education, Member States must give 'access to the education system under the same conditions as nationals of the host Member State' for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.

According to the Directive, Member States have to authorize entry of family members, 'in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx'. But this only applies to 'core' family members:

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

The Directive states that admission of a broader group of family members is only optional, 'taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place':

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

However, the rules on family members in the Directive have in effect been superseded by the Decision implementing it, which places both these categories of family members within the mandatory scope of temporary protection as such - without needing to take 'extreme hardship' into account. (The Decision does require that 'the family was already present and residing in Ukraine before 24 February 2022')

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection. On this point, the preamble elaborates further:

This Decision is compatible with, and can be applied in complementarity with, national temporary protection schemes, which can be considered as implementing Directive 2001/55/EC. If the Member State has a national scheme that is more favourable than the arrangements set out in Directive 2001/55/EC, the Member State should be able to continue applying it, since that Directive provides that Member States may adopt or retain more favourable conditions for persons covered by temporary protection. However, should the national scheme be less favourable, the Member State should ensure the additional rights provided for in Directive 2001/55/EC.

Finally, there is a right to 'mount a legal challenge' to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts.

Ukrainian nationals, as visa-free travellers, have the right to move freely within the Union after being admitted into the territory for a 90-day period. On this basis, they are able to choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union. This will in practice facilitate a balance of efforts between Member States, thereby reducing the pressure on national reception systems.

of Ukrainians after their visa-free entry . (The preamble is silent about the position of non-Ukrainians covered by the Decision in this respect). This is a Copernican revolution from the way in which the EU's Dublin system treats the allocation of responsibility for asylum applicants - although Syrians, Eritreans and other asylum seekers have diasporas too. Moreover, most asylum seekers are from countries whose nationals do not benefit from a visa waiver.

However, the Directive provides that Member States may agree bilaterally that this rule does not apply.

In fact, during negotiations on the 2022 Decision, all Member States decided to apply this option of not applying the take-back rule, adopting a statement (not yet published in the EU Official Journal, but referred to in the preamble to the Decision) agreeing not to apply this rule in order to support frontline Member States, unless Member States agreed bilaterally that the rule would apply after all. This is very much a 'gentlemens' agreement', given that it is opposite to the default rule in the Directive: in other words, it is a political commitment which is arguably not legally enforceable.

Note, though, that if a person with temporary protection from one Member State decides to move to another Member State, they have no right to insist that their temporary protection status is transferred. So they have no rights as such in that Member State, even though it has made a commitment not to request the first Member State to take them back. The preamble makes this point explicit:

Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision.

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Indeed, it may well be the case in practice that most people with temporary protection will not feel the need to apply for asylum, as least as long as temporary protection is applicable. But the Directive nonetheless addresses what happens if they do apply for asylum.

According to the Directive, temporary protection 'shall not prejudge' refugee recognition under the Refugee Convention. It will be possible to apply for asylum 'at any time' .* A ny asylum application not processed by the end of the temporary protection period has to be processed afterwards.

However, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.

Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ' there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State'). Exclusions 'shall be based solely on the personal conduct of the person concerned', and must be 'based on the principle of proportionality'.

As for which Member State would be responsible for considering an asylum application, the EU's Dublin rules will determine in which Member State an application is made. In most cases, this will mean that the Member State that granted temporary protection is responsible for considering the application, because that entails issuing a residence permit, and the Dublin rules assign responsibility to a Member State which issued a residence permit. (This takes precedence, under the Dublin rules, over the responsibility of the Member State of first entry).

Unfortunately, the temporary protection Directive could muddy the waters somewhat, as it refers to the Member State which has accepted the transfer of the person onto its territory being responsible. It is not clear if that is a different issue from being the Member State which issued the residence permit. Also the commitment not to send back temporary protection beneficiaries to the Member State which granted temporary protection overlaps awkwardly with the Dublin rules which would normally require this to take place for asylum seekers.

Once the temporary protection regime ends, the 'general laws' on protection and on foreigners apply, 'without prejudice' to certain specific provisions in the Directive. Arguably the reference to the 'general laws' must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU's Returns Directive, which were adopted after the temporary protection Directive. However, the Returns Directive explicitly gives way to more favourable rules in other EU immigration or asylum law - which includes those in the temporary protection Directive.

For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU's qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU's Dublin rules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.

It's also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).

Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it's anyone's guess if it will do.

There is an express possibility of enforced return of persons after the regime has ended, but such return must be 'conducted with due respect for human dignity', and Member States 'shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases'. They must also 'take the necessary measures concerning' residence status of former beneficiaries of temporary protection 'who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted'. Specifically, those persons 'shall not be expelled so long as that situation continues.' Finally on the issue of return, Member States have discretion over whether to let children complete their school year.
Comments
When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications. In practice, the EU has since adopted two phases of asylum laws, modestly enhancing the level of protection when adopting the second phase.

But following an initial welcome of people fleeing the Syrian civil war at the outset of the 2015-16 'refugee crisis', EU asylum law took a dystopian turn in practice. Pushbacks from the territory. Collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU in the first place - even if it meant they remained subject to appalling treatment in that country. Detention of asylum seekers in unpleasant conditions. A questionable, but legally unaccountable, quasi-agreement with Turkey. Informal - and again unaccountable - readmission arrangements. A border agency subject to increasing concerns about the legality and morality of its behaviour.

The descent of asylum law in practice into this moral abyss has shown the EU and its Member States at their worst. But today's temporary protection decision shows the EU at its best - precisely because it waives so many of the basic precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment). This can only be welcome, but it raises obvious questions about the double standards which apply to others fleeing war or persecution.
Assistance with and guidance on temporary protection
Commission guidance on implementation of the temporary protection decision

Council discussion paper on coordination of implementation

ECRE compilation of information from different Member States

Luxembourg government

NGO in Luxembourg

Austrian government hotline for those needing humanitarian assistance and legal aid

(section added March 4 2022, updated March 28 2022)
Further reading
2016 report on the implementation of the Directive in Member States' national law in 2016. Note that now the temporary protection Directive has been activated in practice, Member States might decide to revise their implementing measures.

UK Statutory Instrument 2005/1379 implementing the Directive; UK Statutory Instrument 2019/745 repealing SI 2005/1379 in light of Brexit (see reg 52).

(section added March 2 2022)

Photo credit: Leonhard Lenz, via Wikimedia Commons

*Corrected on Feb 28 2022 to drop the statement that 'Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended'. In fact the Directive does not explicitly provide for this as such - although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies.

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Temporary Protection for Ukrainians in the EU? Q and A

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Professor Steve Peers , University of Essex Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure - the decision to trigger the EU's temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

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Maintaining mobility for those fleeing the war in Ukraine: From short-term protection to longer-termperspectives

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Maintaining mobility for those fleeing the war in Ukraine: From short-term protection to longer-termperspectives

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Angenendt, Steffen; Biehler, Nadine; Bossong, Raphael; Kipp, David; Koch, Anne

The authors do not usually write on women and children as their focus is migration/security from a political science/IR POV

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Structural and Symbolic Violence Exacerbates the Risks and Consequences of Sexual and Gender-Based Violence for Forced Migrant Women

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Structural and Symbolic Violence Exacerbates the Risks and Consequences of Sexual and Gender-Based Violence for Forced Migrant Women

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Jeanine Hourani, Karen Block, Jenny Phillimore, Hannah Bradby, Saime Ozcurumez, Lisa Goodson, and Cathy Vaughan

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www.researchgate.net needs to review the security of your connection before proceeding.

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Gender-based violence against adolescent girls inhumanitarian settings: a review of the evidence

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Gender-based violence against adolescent girls inhumanitarian settings: a review of the evidence

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Lindsay Stark, Ilana Seff, Chen Reis

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Care International - Rapid Gender Analysis

It informs practical programming and operational recommendations to meet the different needs of women, girls and other vulnerable groups.

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Our focus on the rights of women and girls

CARE International's expertise lies in our holistic and inclusive approach to tackling poverty and injustice. While CARE International works alongside people of all ages, backgrounds, and genders, 70% of the world's poorest people are women. Women and girls experience poverty, hardship, climate, conflict, and health emergencies very differently to men, and require specialized approaches.

Responding to specific needs

While gender inequality is a key driver of poverty as well as one of the most widespread forms of injustice, when women are empowered, our evidence tells us that they bring their whole communities with them.

True gender equality encompasses intersectional issues such as race or disability that can further disadvantage certain groups of women, yet once achieved also leads to more scalable and sustainable prosperity.

CARE International places the specific needs and rights of women and girls at the heart of all we do. It reflects our practical approach to fighting poverty, the specific technical expertise we have gained as a diverse global network and plays a critical part of our identity as an organization grounded in gender equality and women's empowerment.

How does CARE International focus on women and girls?

Gender equality crosscuts all our developmental programming. Throughout our 75 years of experience, CARE has developed tools and methods to ensure we address the rights and needs of women and girls in all areas of our work.

CARE's Gender Marker

CARE's Gender Marker is a self-assessment program quality and learning tool. It measures the integration of gender into programming; from "harmful" to "transformative."

The Gender Marker enables CARE International to track, improve on, and support more effective, gender integrated programming. It is designed to be used in combination with Monitoring, Evaluation, Accountability, and Learning systems to help our teams reflect and learn from the gendered approach of their work.

Rapid Gender Analysis

In times of crisis, women and girls face specific risks due to gender inequities that can be exacerbated at times of instability.

The Rapid Gender Analysis is used in crisis situations, where time is of the essence and resources are scarce. They are built up progressively, using a range of primary and secondary information to understand gender roles and relations and how these may change during a crisis. It informs practical programming and operational recommendations to meet the different needs of women, girls and other vulnerable groups.

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Our Focus on Gender Equality and the Rights of Women and Girls

# data[].attributes.attachment_link.description
CARE International's expertise lies in our holistic and inclusive approach to tackling poverty and injustice. While CARE International works alongside people of all ages, backgrounds, and genders, 70% of the world's poorest people are women. Women and girls experience poverty, hardship, climate, conflict, and health emergencies very differently to men, and require specialized approaches.

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Sexual violence in Ukraine - A devastating war crime with far reaching consequences

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Sexual violence in Ukraine - A devastating war crime with far reaching consequences

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Jenevieve Mannell, associate professor

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Jenevieve Mannell , associate professor

Institute for Global Health, University College London, 30 Guilford Street, London WC1N 1EH, UK

A devastating war crime with far reaching consequences

On 24 February 2022, Russia launched a military invasion of Ukraine. Reports of sexual violence against women and girls began to emerge less than two months later. Multiple perpetrator rape, sexual assault at gunpoint, and rape in front of children have been reported to non-governmental and human rights organisations in Russian controlled areas. 1 Research on the use of rape as a weapon of war in other armed conflicts around the world tells us that we should not be surprised.

The use of sexual violence against civilians during armed conflict is widespread and is now recognised as a war crime by the International Criminal Court. Yet, the reasons why men commit conflict related sexual violence vary. Most rapes committed by armed groups in the Democratic Republic of Congo (DRC), for example, were intended to terrorise civilians to gain control over land and other resources. 2 By contrast, the rape and sexual slavery of Tutsi women during the Rwandan genocide in 1994 was a means of stripping an entire ethnic group of its humanity. 3 In former Yugoslavia, sexual violence by the Serbian authorities was part of a government sanctioned strategy to destroy the lives and reproductive abilities of Bosnian Muslim women and their communities. 4 The underlying motivations for the sexual violence against Ukrainian women and children will eventually become clear.

What we do know is that sexual violence has long term consequences. Women and girls' experiences of sexual violence are associated with significant increases in the rate of severe mental health problems, including post-traumatic stress disorder, depression, and thoughts of suicide. 5 Past experiences of sexual violence also increase the likelihood that women and girls will experience other forms of violence later in life, including intimate partner violence, 6 in ways that further exacerbate their poor mental health. 7

Less well recognised is the potential for conflict related sexual violence to destroy communities, cultural identities, and social networks in Ukraine and elsewhere. Nearly 30 years after the Rwandan genocide, unwanted pregnancies from conflict related sexual violence has led to widespread loss of identity, fraught relationships with families, and the stigmatisation of an entire generation. 8 A large qualitative study of community perceptions of sexual violence after a decade of conflict in the DRC highlighted the extensive isolation and shame experienced by violence survivors. 9 In these ways, conflict related sexual violence has the power to undermine the stability of entire societies.

Although ensuring systems of accountability and punishment for perpetrators is the key to prevention and social change in the long term, a swift and effective international response to the survivors of sexual violence in Ukraine is critical now. But what should be done?

Identifying survivors of conflict related sexual violence among Ukrainian refugees is challenging. Women and girls in most settings are reluctant to report their experiences for several reasons including stigma, 10 fear of social isolation, 9 and simply not wanting to relive the trauma through its telling. 11 Men, boys, and lesbian, gay, bisexual, trans, and intersex (LGBTI) populations also experience conflict related sexual violence, which often goes unrecognised. 12 Approaching refugees with a survivor centred approach that is inherently non-discriminatory and considers the diverse needs of people who have experienced multiple traumatic events is therefore essential. 13

Once survivors have been identified, the task of providing individualised mental health support becomes somewhat easier. A recent review of psychological interventions for survivors of gender based violence in humanitarian settings showed the potential for cognitive behavioural therapies (common elements treatment approach and interpersonal psychotherapy), mindfulness therapeutic approaches, and exposure oriented interventions (eye movement desensitisation and reprocessing and narrative exposure therapy). 14

Although these individual therapeutic options have some supporting evidence, treating individuals does little to tackle the broader issues of stigma and loss of community identity that can arise from conflict related sexual violence. A recent systematic review of interventions to reduce sexual violence in humanitarian settings points to the potential of comprehensive community based strategies to increase the economic empowerment of women survivors and challenge the gendered social norms that contribute to stigmatisation and exclusion. 15 But we are still a long way from being able to implement such strategies in Ukraine.

In the meantime, there is much that can be done to prepare a better future for all survivors of conflict related sexual violence. Providing fast track visas to Ukrainian refugees is an obvious starting point. 16 Better evidence on how to prevent conflict related sexual violence is also urgently needed. 17 For both of these to happen, however, researchers, funders, and policy leaders need to move beyond thinking of sexual violence as a problem for the mental health of a small number of unfortunate individuals. This is a problem that affects whole societies, and there is simply far more at stake for Ukraine.

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A devastating war crime with far reaching consequences On 24 February 2022, Russia launched a military invasion of Ukraine. Reports of sexual violence against women and girls began to emerge less than two months later.

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Care International

Strengthening Access to Family Planning and Post-Abortion Care in Emergencies (SAFPAC) program

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Sexual and reproductive health in emergencies

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Access to sexual and reproductive health and rights (SRHR) services are vital for saving lives in times of crisis. CARE International works to ensure women and girls can overcome barriers to SRHR.