The statements and analysis expressed in this paper are solely those of the author. The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned its contents. Accordingly, the views expressed herein should not be construed as representing the position or policy of the ABA. Furthermore, nothing contained in this paper is to be considered rendering legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.
By: Kendall Pietrzak, former international law intern for the ABA’s Center for Global Programs
After the fall of Kabul in 2021, it was hard to ignore the plight of Afghan nationals and their need for safe pathways out of the country. However, as evacuation operations were completed and other news captured international attention, the focus on the Afghan refugee crisis waned. Unfortunately, the Afghan refugee crisis is far from over. As of December 2021, 3.5 million Afghans remain internally displaced in Afghanistan, while 2.3 million Afghan refugees and asylum-seekers are stuck in neighboring countries, trapped in limbo with no safe option to return to Afghanistan and no path to permanent residence in another country. Despite the number of Afghan refugees in need, their options for onward movement are greatly limited by regulations, a lack of uniform asylum policy, and negative attitudes towards refugees.
Roadblocks for Afghan refugees in the EU
Afghan refugees seeking asylum in the EU face roadblocks that lock them out of the EU asylum system. Asylum laws require refugees to be within the country’s border to apply for asylum. Unfortunately, few countries have visa options that give refugees a pathway to enter the country to apply for asylum. Even in these countries, like France, these visas are rarely granted and are sometimes only available at limited embassy locations.
Negative attitudes toward refugees further limit access to the asylum system. Following the 2021 Taliban takeover, several EU States expressed that Afghan refugees would not be welcome. Austria ruled out taking any Afghan refugees. Greece said it would not be the “gateway” for refugees to Europe again and adopted concepts like “safe third country” to keep refugees out. France called for a “robust response” that would keep refugees closer to their originating country rather than coming to France.
The Dublin Regulation is another roadblock. The stated purpose of this Regulation is to determine which State is responsible for examining an asylum application to distribute the number of refugees among EU Members equally. Typically, this would be the State where the asylum seeker first entered the EU. For Afghan refugees without a visa, this would typically be the countries located on the external eastern border of the EU, such as Greece. The Dublin system increases pressure on these external border states by making them responsible for a larger number of refugee applications, further confirming their negative attitudes towards accepting refugees. Additionally, sending refugees back to “the state most responsible” often means sending them back to countries with less favorable asylum laws than the country they applied in. For example, an applicant enters the EU through Bulgaria and makes their way to Germany, where they apply for asylum. Suppose they are sent back to Bulgaria through the Dublin procedure. In that case, they will be subject to the Bulgarian asylum system, which is much less favorable for Afghan refugees than the German asylum system.
The safe third country concept also significantly limits access to asylum in the EU. Using the safe third country concept, an EU state could deem an asylum application inadmissible if the refugee arrived from a safe third country. Each EU state has its own list of what countries are safe third countries, meaning there is no uniformity on what qualifies as a safe third country, despite common EU standards. This principle is used by countries on EU’s external borders in response to refugee crises to protect themselves from bearing the burden that the Dublin regulation puts on them.
For example, shortly after the Taliban takeover of Kabul, Greece designated Turkey as a safe third country in anticipation of the large number of Afghan refugees that would likely be entering Greece from Turkey. This is a problem because these “safe third countries” are often not safe or reliable places for refugees to seek asylum. In Turkey, Afghans face discrimination, uncertain pathways to protection, and even deportation to Taliban-controlled Afghanistan.
A Different Case for Ukrainian refugees
Not all refugees face the same obstacles as Afghan refugees. After the Russian invasion of Ukraine, EU Member States openly welcomed Ukrainian refugees. In addition to receiving a warm welcome from many individual EU Member States, Ukrainian refugees received EU-wide temporary protection and access to asylum through The Temporary Protection Directive (TPD). This directive can be enacted in response to a mass influx of displaced people entering the EU to keep asylum systems from being overwhelmed and serve the best interests of refugees. The TPD was introduced in 2001 but has never been used before until now. However, the TPD was enacted quickly and unanimously in response to the situation in Ukraine. The TPD grants temporary protection anywhere in the union, and the ability to lodge an asylum application at any time during their stay.
The official EU council implementing decision reasoned that temporary protection was the most appropriate tool to address the “extraordinary and exceptional situation” caused by the Russian invasion of Ukraine and the displacement of Ukrainian nationals. The decision also condemns the Russian aggression and voices resolute and continued support for Ukrainian refugees. The decision also reasoned that TPD was appropriate because nationals of Ukraine do not need a visa when entering the EU. Therefore, with the large number of displaced Ukrainian refugees, the EU’s asylum systems would likely become overwhelmed. This would harm the efficient operation of asylum systems and the interest of refugees. TPD eliminates this problem by limiting the need for displaced persons to immediately access the asylum systems since they have temporary protection. As visa-free travelers, Ukrainians can choose which member state in which they want to enjoy the rights attached to TPD; this facilitates a balance of efforts between member states and reduces the pressure on national reception systems.
The Difference between the EU’s Response to Ukrainian and Afghan Refugees
Refugees' difficulties when seeking asylum in Europe have often been attributed to the EU’s lack of ability to agree on uniform asylum policies. However, the response to the Ukrainian refugee crisis shows that the EU is entirely capable of reaching such agreements. This begs the question: if the EU can implement such a unanimous and welcoming policy, why haven’t they done so before? This is the first time the TPD has been enacted, but it is certainly not the first time the EU has faced a refugee crisis.
TPD was not offered during the 2015 refugee crisis even though a large influx of displaced refugees from several countries sought asylum in the EU. It was argued that TPD was only designed for an influx of refugees from one country, so since the refugees in 2015 were coming from several countries throughout the Middle East, Southeastern Europe, and Africa, it did not apply.
TPD was discussed as a potential possibility for Afghan refugees but never pushed forward due to a lack of support. However, Afghan refugees were also displaced in large numbers by an extraordinary and exceptional situation much like the Ukrainian refugees were. Additionally, the actions of the Taliban are certainly worth condemnation, and the displaced Afghan refugees certainly deserve continued resolute support. Also, unlike the 2015 refugee crisis, the Afghan refugee crisis involved just one country.
One possible explanation is that Afghan refugees are not visa-free travelers in the EU, so their entrance can be limited. Therefore, Afghan refugees pose less risk than Ukrainian refugees of overwhelming the asylum system. As such, it could be argued that the Afghan refugee crisis did not constitute a “mass influx of refugees” necessary to invoke TPD. However, these reasons alone do not sufficiently explain why TPD was not offered to Afghan refugees.
While regulations are in place to keep Afghan refugees from pouring into the EU, those that can make it into the EU and apply for asylum are often concentrated in EU border countries, overwhelming asylum systems. TPD could rectify this. The TPD dictates that member states shall provide the necessary visas (including transit visas) for those protected under TPD and that formalities will be reduced to a minimum to keep from overwhelming national reception system. With this, Afghan refugees could apply for visas and choose where to travel without being forced to the EU States on the external border by the Dublin regulation. This would then balance the number of refugees throughout the EU and reduce pressure on border states.
Additionally, even though it could be argued that the number of Afghan refugees that entered the EU did not constitute a “mass influx” of refugees, the TPD also allows for its implementation when there is an imminent mass influx of refugees. Following the 2021 Taliban takeover, there was concern among EU member states about the potential imminent mass influx of Afghan refugees overwhelming the asylum system. TPD was the perfect response to this.
Furthermore, “mass “influx” is simply defined as a “large number” of displaced persons arriving in the EU (including by evacuation). It is left up to the Council to decide what a large number of refugees means; thus, they can expand or limit the application of TPD as they wish. As of November 2021, 123,000 Afghan asylum-seekers had arrived in Europe; this could certainly be considered a “large number” of Afghan refugees, especially in light of the extraordinary situation that Afghan refugees faced.
Considering this, the lack of support for providing Afghan refugees with TPD, while so quickly and unanimously providing it for Ukrainian refugees, is concerning. This concern is validated by statements from many EU State leaders. Members of Poland's conservative nationalist ruling party openly stated their aim to limit migration from countries like Afghanistan to protect Poland's identity as a Christian nation and guarantee its security. Chairman of the National Council and leader of the second-largest governing party in Slovakia, Boris Kollár, stated that Afghans “cannot be integrated” and, therefore, they should remain in “their natural environment” (the countries closer to Afghanistan) but not the EU.” Czech Prime Minister Andrej Babiš stated there is "really no place" for Afghan refugees in the EU. Rather they should "find a solution that allows them to stay in Afghanistan." In Hungary, Prime Minister Viktor Orbán built a razor-wire fence on the border to keep out “Muslim invaders.” Comparing Ukrainian refugees to refugees from places like Afghanistan, the Bulgarian prime minister said: "These are not the refugees we are used to... these people are Europeans… These people are intelligent, educated people. ... This is not the refugee wave we have been used to, there is not a single European country now which is afraid of the current wave of refugees."
This is at odds with one of the fundamental principles of the 1951 UN Refugee Convention, which dictates that refugee laws should be applied without discrimination as to race, religion, or country of origin. The Convention leaves it up to each state to determine their refugee procedures, so long as the application of these procedures is non-discriminatory. That states are barred from using discrimination in providing refugees with protection once they apply for asylum within the country but can keep refugees from even accessing their asylum procedures in the first place based on discrimination, undermines the intent of the Convention; to protect all refugees regardless of race, religion, or country of origin.
Where both the Afghan and Ukrainian refugees were displaced in large numbers by an extraordinary situation, and where both groups of refugees put asylum systems at risk of being overwhelmed, the difference in attitudes and EU policy toward the two groups of refugees makes it hard to deny that unfair treatment is at play. Now that the EU has shown its capability to agree on a uniform, functioning refugee policy that equally distributes the number of refugees, it should be interesting to see how the EU handles future refugee crises. Hopefully, the EU continues the practice of offering speedy, unanimous, and functioning solutions to all refugees in the future so that all refugees can be provided with the protection they need, regardless of race, country of origin, or religion.