From Protected to Protracted: a Study of Temporary Protection Mechanisms’ “Permanent Temporariness” in European and Latin American Practices

Introduction. Temporary protection is a form of international protection that is designed to provide a minimum level of protection in situations involv­ing large influxes of forced migrants. The 1951 Refu­gee Convention does not contain provisions dealing with mass influx situations. Within the framework of the United Nations (hereinafter referred to as the UN) since the 80s. XX century began to pay atten­tion to situations associated with mass influx (mass influx) or mass exodus (mass exodus), in particular, the Executive Committee of the Office of the United Nations High Commissioner for Refugees (hereinaf­ter referred to as UNHCR) adopted a number of con­clusions regarding this issue. However, all interna­tional legal acts adopted at the universal level were of a recommendatory nature. At regional European level, Directive 2001/55/EC was adopted within the European Union (EU) on minimum standards for the provision of temporary protection in cases of mass influxes of displaced persons and on measures to maintain a balance in the efforts of Member States in relation to reception and consequences such a reception in 2001 This article makes an attempt to reveal the history of the development of temporary protection, its content and features of application in the EU. The authors also touch on the reasons for the different application of temporary protection in EU member states. Materials and methods. The methodological basis of the study was the following general scientific and special methods of cognition of legal phenom­ena and processes: historical and legal comparative method; method of system-structural analysis; for­mal logical method. Research results. As a result of the analysis, the authors found that when providing temporary pro­tection, a collective (group) approach is used to con­sider applications for asylum, rather than an indi­vidual one. This approach is intermediate and should not exclude the possibility of subsequently applying for refugee status. In addition, EU Member States at national level can extend the application of the Tem­porary Protection Directive 2001 across persons, space and time. Discussion and conclusion. The history of the development of temporary protection, its content and features of application in the EU are analyzed; it is justified that the decision to apply temporary protection is a politically motivated decision. It is concluded that despite the application of temporary protection in connection with events taking place in Ukraine, EU member states are still unable to agree on common measures to apply the principle of soli­darity and fair sharing of responsibility, which is en­shrined in the EU's founding instruments.

Journal Article Part 8: The NGO Perspective Global Consultations on International Protection Third Track, Theme 1: Protection of Refugees in Mass Influx Situations: NGO Statement on the Civilian Character of Asylum, Including Separation of Armed Elements and Screening in Mass Influx Situations, as Well as Status and Treatment of Ex-Combatants1 (8–9 March 2001) Get access Refugee Survey Quarterly, Volume 22, Issue 2_and_3, October 2003, Pages 360–366, https://doi.org/10.1093/rsq/22.2_and_3.360 Published: 01 October 2003

Journal Article Part 8: The NGO Perspective Global Consultations on International Protection Third Track, Theme 1: Protection of Refugees in Mass Influx Situations: NGO Statement on Mechanisms of International Cooperation to Share Responsibilties/Burdens in Mass Influx Situations (8–9 March 2001) Get access Refugee Survey Quarterly, Volume 22, Issue 2_and_3, October 2003, Pages 370–372, https://doi.org/10.1093/rsq/22.2_and_3.370 Published: 01 October 2003

This article elaborates on the non-refoulement principle regarding deportation procedure, security, and entry to the country (Turkey) under the 2014 Temporary Protection Regulation, and the 2013 Law on Foreigners and International Protection. According to the document presented by the United Nations Human Rights Office of the High Commissioner “(…) the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status”.1 The rights of refugees and asylum seekers in mass influx situations are recognized by UNHCR Executive Committee resolutions and general international law.2 Thus, it is necessary to analyze the non-refoulement rule as inseparable part of globally accepted principles: the right to life and the freedom from torture and inhuman or degrading treatment or punishment. The article describes the development and violations of the said rule, focusing on the pertinent current Turkish legislation.

The Convention relating to the Status of Refugees (the 1951 Convention) does not address all the challenging questions posed by contemporary forced migration. The 1951 Convention does not deal with persons fleeing armed conflict, admission and large-scale movement of forced migrants in a clear and comprehensive manner. In addition to this, restrictive interpretation of the refugee definition provided in Art. 1 A (2) of the 1951 Convention by State authorities, popularity of non-entrée policies and the absence of solidarity in response to large-scale forced migration movements create protection gaps. A number of initiatives have been adopted at the national, regional and international level to remedy these gaps and one of them is temporary protection. This article focuses on protection gaps and temporary protection. The first part of the article explores the extent to which the 1951 Convention deals with persons fleeing armed conflict, admission and mass-influx situations, and it seeks to clarify the reason why there are protection gaps concerning these issues. Building on this analysis, the second part of the article defines temporary protection by reviewing temporary protection policies in Turkey, the United States and the European Union and it explores to what extent temporary protection regimes can remedy protection gaps and provide effective protection to forced migrants.

Part 8: The NGO Perspective Global Consultations on International Protection Third Track, Theme 1: Protection of Refugees in Mass Influx Situations: NGO Statement on the Overall Protection Framework (8–9 March 2001) Get access Refugee Survey Quarterly, Volume 22, Issue 2_and_3, October 2003, Pages 357–359, https://doi.org/10.1093/rsq/22.2_and_3.357 Published: 01 October 2003

Journal Article Part 8: The NGO Perspective Global Consultations on International Protection Third Track, Theme 1: Protection of Refugees in Mass Influx Situations: NGO Statement on Practical Aspects of Physical and Legal Protection with Regard to Registration (8–9 March 2001) Get access Refugee Survey Quarterly, Volume 22, Issue 2_and_3, October 2003, Pages 367–369, https://doi.org/10.1093/rsq/22.2_and_3.367 Published: 01 October 2003

This article presents the existing normative framework for children under international protection and children under temporary protection in Türkiye in the context of the Convention on the Rights of the Child, and evaluates the international conventions that led to the emergence of the concepts of international protection and temporary protection together with the Convention on the Rights of the Child. It also analyses the rights of children under international protection and under temporary protection regarding education in Türkiye and the difficulties they face. In this context, it analyses what the relevant conventions correspond to in Türkiye and how Türkiye approaches them. The rights to education of children under international protection and temporary protection in Türkiye, the extent to which these rights are violated and what kind of problems they may cause, how the general political atmosphere affects access to rights, and what is experienced in the specific field of education are examined. Methodologically, existing publications, books and book chapters from national and international databases, as well as reports and publications of national and international non-governmental organisations and publications and statements of public institutions were examined.

Temporary protection status shapes the aspirations of its holders. It limits their future perspectives; however, this does not mean that it abolishes their agency. Previous research on temporary protection status schemes using a primarily transnational perspective has focused on how temporary protection status visa holders experience ‘limbo’ or ‘permanent temporariness’ but, by neglecting class, tended to overlook what happens to their position in the economy of a given country. Based on biographical interviews and focus groups with female temporary protection status visa holders from Ukraine in Czechia and Slovakia, this study asks how they perceived their agency and what position they were looking for and finding for themselves in the labour market. The findings highlighted the subtlety of the factors that influenced female visa holders’ aspirations. Crucial was time both as a resource and as the main dimension of agency, which predetermined relative power over the terms and conditions of employment. Hence, rather than focusing on how temporary protection status shapes identity at different scales, therefore, the paper suggests to study how it functions more like a filter that distributes temporary protection status visa holders according to the needs of a country’s division of labour, paying attention to the very subtle factors that underpin this selection.

A mass influx of migrants and asylum-seekers is a well-known contemporary phenomenon that has created tremendous challenges for displaced persons, receiving states, and the international community. Although the 1951 Convention is still the most important instrument in the international protection regime, some protection gaps persist. Dealing with situations of mass influx of persons across international borders is one of these weak spots. In this regard, temporary protection measures have emerged in State practice to fill such a gap. However, these are considered time-limited emergency responses and group-based protections to cope with mass influxes. The standards of treatment granted to beneficiaries are less than those found in the 1951 Convention. While investigating temporary protection is a continuing concern both within the literature and as practical measures at UNHCR, this article seeks to assess the effectiveness of temporary protection mechanisms in coping with mass influxes. Identifying temporary protection as an unsettled concept would serve ongoing efforts to bring it within the realm of law under more acceptable standards of treatments for its beneficiaries.

The number of forcibly displaced persons in the world is on the rise, and the escala¬tion of the conflict in the territory of Ukraine has contributed significantly to this increase. According to UNHCR estimates, more than 6.8 million people fled from Ukraine to European countries, and more than 6.6 million were displaced within Ukraine itself. The greatest burden of caring for displaced persons from Ukraine is borne by the neighbouring countries. The situation caused strong condemnations of Russian aggression and widespread expressions of solidarity with the humanitarian disaster, both in the EU and in the Republic of Croatia. In order to provide shelter and support to displaced persons, states have to use numerous resources of their national public administrations. The ability of a public administration to manage the reception and care of a large number of displaced persons can be viewed through the prism of administrative capacity, understood as a set of skills and competencies that a public administration acquires and uses in its work in order to facilitate and contribute to solving problems at the level of the en¬tire administrative system or individual administrative organisations. In the context of the discussion about the problem-solving capacity of state and non-state actors involved in governance, Lodge and Wegrich (2014) consider the ways of using state resources and their connection with administrative capacities. For this purpose, they distinguish between four types of administrative capacity – regulatory, delivery, co¬ordination and analytical. The paper analyses the response of Croatia to the mass influx of displaced persons from Ukraine since the escalation of the conflict in February 2022. The analysis was based on the concept of administrative capacity, applied to the reception and care of a large number of persons in humanitarian crises, and on the obligations of Croatia under the EU Temporary Protection Directive. This Directive regulates various obligations of EU member states in the event of the activation of temporary protection and the provision of a number of rights to displaced persons for the duration of the protection. The subjects of analysis are policy documents, regulations governing this area and the practice of public authorities. The paper is divided into four parts. The introductory part provides a general over¬view of the situation and statistical data on the number of people displaced from Ukraine, as well as an overview of the temporary protection institute as governed by EU regulations. It also states the purpose, subject and expected contribution of the paper. The second part provides a brief overview of the legal regulation of temporary pro¬tection in the context of the Croatian asylum system and analyses Croatia’s approach to aggression against Ukraine based on the most important documents of the key branches of government, the Croatian Parliament and the Government of the Repub¬lic of Croatia. Temporary protection is regulated within the framework of the Act on International and Temporary Protection, i.e., it is included as a kind of third form of protection within the asylum system. In practice, however, since the beginning of the acceptance of displaced persons from Ukraine, a clear distinction has been made according to the system of international protection (including asylum and subsidiary protection), both in terms of simplifying procedures and in relation to the authorities competent for coordinating the temporary protection system. The central part of the paper provides an overview of the administrative capacities of the Croatian public administration (at state and local levels) for implementing the legal institute of temporary protection in practice. Regulatory capacity refers to the ability to make timely decisions, regulations, strategic documents and other general and individual acts, at the state and local level, and the use of various instruments for better regulation. The results indicate that the regulatory framework in Croa¬tia was established in a remarkably short time, based on the coordinated action of key stakeholders who were tasked with implementing measures for the reception and care of displaced persons from Ukraine. Competent ministries timely and ad¬equately informed the bodies under their jurisdiction about the content and implementation method of measures for the successful reception and care of displaced persons, issued decisions and instructions, and tasked other state administration bodies to regulate more closely the area of their activities related to the reception and care of displaced persons from Ukraine. Delivery capacities refer to the provi¬sion of services in certain sectors, that is, the implementation of certain rights from the scope of temporary protection in practice. The paper showed that, in a very short period of time, the competent ministries sent operational instructions to their de¬partments involved in the implementation of measures related to the reception and care of persons under temporary protection. The website “Croatia for Ukraine” was established in order to provide general information to displaced persons, stakeholders involved in the reception and care system, as well as citizens. Besides, a number of local self-government units took various additional measures to facilitate the re¬ception and stay of displaced persons in their communities. Coordination capacity includes connection and cooperation between various sectors (horizontal) and levels of government – local, regional, central, and European (vertical). Very quickly, various coordination mechanisms were established, which laid the basis for the efficient implementation of measures for the reception and care of displaced persons. Ana¬lytical capacity refers to the ability of a public administration to evaluate its system, predict future development and, as much as possible, supervise the implementation, data collection and development of mechanisms for planning, monitoring and evaluating the results of public policies and comparing achieved and planned goals and measures. The conflict in Ukraine and the consequent flight of the population is of a crisis nature, so it is not possible to fully predict the extent of the capacity to receive and care for people because it is not possible to foresee the number of people who will request temporary protection in Croatia, or the duration of the conflict, i.e., the dynamics of the return of displaced people to Ukraine or their departure to other EU member states. Furthermore, the relatively short period of time that passed from the escalation of the conflict to the moment of writing this paper affects the possibility of evaluating planned and achieved goals and measures. Therefore, the analytical capacity is analysed in relation to the following indicators: the collection and availability of statistical data on the number of displaced persons, the relationship between the influx of persons and the preparation of accommodation facilities, and the evaluation of the achievement of goals and measures based on the awareness of displaced persons about the rights granted under temporary protection and problems in exercising those rights. The fourth part includes concluding considerations. It is concluded that the admin¬istrative capacities of the Croatian public administration for implementation, regula¬tion and coordination proved to be sufficient for a timely and appropriate response to this type of humanitarian crisis. However, considering that only a few months have passed since the activation of temporary protection, it is too early to draw conclusions about the connection between the planned goals and measures and their practical delivery as monitoring and evaluation mechanisms are generally less developed in the Croatian public administration. It is concluded that several factors contributed to the quick and effective action of the competent authorities: solidarity with Ukraine and condemnation of Russia by all political bodies in Croatia and the EU, the proximity of the conflict, the demo¬graphic similarity of displaced persons and the local population, the experience of the Croatian War of Independence, and the general support of the Croatian citizens for helping displaced persons.

Fears that a derogation regime will water down Convention protection do not hold much weight when attention is focused on current practice. Presently, the bulk Convention guarantees are simply ignored in situations of mass influx-not just diluted but abandoned altogether. Setting aside the Convention in mass influx situations has damaging consequences for refugees, host States, UNHCR and international protection regime as a whole. UNHCR faces serious difficulties in performing its function of providing international protection in an environment of loose and ever-changing legal parameters. Incorporating a derogation clause in architecture of the Convention is one way of addressing practical gaps which arise in mass influx emergencies. The aim is to ensure that any derogation occurs within a strictly regulated regime and for a specified period of time. In this way, non-refoulement through time would shift from protection as admission alone, to progressive acquisition of rights guaranteed to Convention refugees. Keywords: derogation clause; international protection regime; mass influx emergencies; non-refoulement ; refugee convention; UNHCR

In recent years, Turkey has been host to more than two million Syrians seeking refuge. Initially concentrated in the southeastern regions, these refugees now reside throughout the country. There are many questions from policy makers regarding the impact of the population of Syrians Under Temporary Protection on the host community. This paper examines the impact of migrants on regional host communities from a poverty perspective. The paper does not find any negative impacts on poverty for the host community from the increasing population of Syrians Under Temporary Protection as of 2013, despite the high poverty rates experienced among the recent migrants.

This dialogue constitutes an engagement with Elena Isayev’s article, “Ancient Wandering and Permanent Temporariness”. It focusses on concepts Elena has marshalled for the analysis of ancient and contemporary experiences of displacement (“non-return”, “non-arrival”, “permanent temporariness”) within what are largely international political frameworks. The point of our response is to see what happens when we apply these concepts to Aboriginal people’s experiences of displacement within the Australian nation—a country that did not even count the indigenous as citizens until 1967. Some striking parallels emerge, in relation to how a people can be forced to live in a temporary state, their lives “made in between”. Our response took the form of a conversation and was recorded on 6 December 2021. We choose to speak and transcribe these thoughts, rather than write them, as a way to maintain the dialogic mode (a.k.a. “yarning”) in which Aboriginal intellectual work has flourished for millennia now. Towards the end of the exchange Paul Collis suggests that not only Aboriginal people, but the land itself, suffers from a kind of “permanent temporariness”.

Part 2: Third Track Meeting of 8–9 March 2001, on the Theme “Protection of Refugees in Mass Influx Situations” Mechanisms of International Cooperation to Share Responsibilities and Burdens in Mass Influx Situations Get access Refugee Survey Quarterly, Volume 22, Issue 2_and_3, October 2003, Pages 76–83, https://doi.org/10.1093/rsq/22.2_and_3.76 Published: 01 October 2003