12 July 2022

The Selective Nature of a pan-European Willkommenskultur

Reflections on the War in Ukraine and Its Implications for Humanitarian Protection

Four months into Russia’s war on Ukraine, there has been a tremendous show of support for Ukrainians fleeing violence and the atrocities of war – in Europe and elsewhere in the world. As is well-known, European states have hammered out pragmatic administrative solutions to accommodate large numbers of incoming person, going to great lengths to provide for beneficial welfare arrangements. Against this backdrop, it may not be unreasonable to present the crisis in Ukraine as a tipping point for humanitarian protection more generally.

While this blog post acknowledges the positive developments put into practice, it takes a generally optimistic assessment with a grain of salt. The selective nature of recent policy shifts betrays the idea that tailor-made beneficial instruments could incentivise a more general policy turn in the field of humanitarian protection in Europe. Besides, attention should be drawn to the fact that initially beneficial arrangements are currently called into question and partly rolled back. As a case in point, the Polish government has recently decided to cut welfare benefits of Ukrainians, while Hungary allegedly overestimates the number of persons to tap into additional EU funding. For those who have benefitted from a pan-European Willkommenskultur these last months, this raises the question whether generous arrangements are here to stay.

The Selective Benevolence Approach

During the first weeks of Russia’s attack on Ukraine, some commentators have put forward the view that this could mark a watershed moment for humanitarian protection in Europe. Not unlike historical precedents, hopes were that the grim realities of war would once more bring to the attention of European societies the necessities and imperatives of providing protection to persons in need, thus creating momentum for a more beneficial protection regime. A few months later, however, it may be safe to conclude that these were largely fond hopes. In fact, there is a puzzling synchronicity of diametrically opposed events at the EU’s external borders. While Member States have bend over backwards to welcome millions of persons fleeing war in Ukraine, practices – especially at southern EU borders – stand in stark contrast to beneficial arrangements of that sort. Only recently, for instance, news broke that at least 23 migrants died trying to scale the border fence in Melilla, while Greek authorities had allegedly instrumentalised migrants for carrying out pushbacks at the Evros river.

These horrific events accentuate the selectivity with which the European Union and its Member States have designed their protection regimes. On the one hand, this is reflective of a racialised border regime. One may reasonably wonder why the war in Ukraine has inspired beneficial arrangements of that nature, while previous influxes of Syrians have not. Analytically, on the other hand, it must be noted that a sense of compassion regarding persons fleeing violence appears to apply to the benefit of some groups of persons specifically and to those persons only. For that reason, the presumption that the Ukrainian crisis marked a watershed moment for humanitarian protection in Europe more generally may have to be qualified as wishful thinking. It is highly unlikely that the war in Ukraine marks an about-turn in the governance of humanitarian protection more generally.

The EU’s beneficial approach to the large number of persons fleeing the war in Ukraine is emblematic of a specific mode of governance, nonetheless. This approach may tentatively be termed as selective benevolence. Policies of such nature tend to centre on broad executive discretion, allowing for more beneficial actions in the light of humanitarian considerations. That discretion is routinely utilised to do away with a thorough individualised assessment, proposing a largely standardised one instead. This may be exemplified by way of reference to the Temporary Protection Directive. Once activated, it requires national authorities to merely verify the identity of the person concerned to establish whether (s)he may qualify as a beneficiary thereof, and whether (s)he may pose a security threat of some sort. With regard to the latter assessment, Member State representatives in the Council have recently proposed to expand the application of the Eurodac Regulation to beneficiaries of temporary protection. Yet, this would not call into question the principally generous nature of administrative conduct vis-á-vis beneficiaries of temporary protection.

Primarily, selective benevolence is put into effect in relation to the issuance of a residence permit of some sort. However, it may equally feature in the facilitation of entry into the territory of an EU Member State in the first place. The situation of local service members in Afghanistan illustrates this point. Selective benevolence may extend to persons who may be entitled to a residence permit but lack practical options to travel to the EU. While EU Member States’ practices differ widely in this regard (see the overview here, at 4), some have adopted a policies that may be described in terms of selective benevolence. The German government, for instance, works towards the evacuation and admission of persons exposed to a particularly high risk. In the coalition agreement, moreover, the governing parties have agreed to develop a general admission policy for Afghans, which still has to see the light of day.

Furthermore, a strategy of selective benevolence is usually complemented by intense political messaging. European governments will have to assure persons fleeing violence that they will, in fact, be granted some form of protection upon arrival, be it international protection or otherwise. This communicative element of selective benevolence was at full display during the first weeks of the war, namely when EU and national executives were openly contemplating the options of Russian soldiers evading draft to be granted international protection in the EU. Charles Michel was reportedly addressing Russian soldiers in this vein, and so was the German minister of interior, Nancy Faeser. Even where, hypothetically, the persons concerned would not qualify as beneficiaries of international protection, selective benevolence of that nature allows executive actors to grant third country nationals a residence permit on humanitarian grounds, nonetheless.

Legally speaking, political assurances of that sort are rather unproblematic. Most (if not all) Member States’ immigration laws include options for executive actors to grant some form of a residence permit for humanitarian reasons. In German migration law, for instance, such provisions can be found in § 22 et seq. Residence Act. This is not to say, however, that communicative efforts of this nature may create no legal effects whatsoever. The Berlin Administrative Court, for instance, has recently ruled that German authorities’ executive discretion to issue a visa to local staff in Afghanistan was nullified due to the competent minister’s repeated public declarations of intent in this regard. Despite the largely discretionary nature of selective benevolence, this suggests that such policies are not entirely subject to the whim of executives. Such policies may activate the principles underpinning administrative legal systems, including possible limits to executive discretionary power.

The Beginning of the End of a pan-European Willkommenskultur?

Besides the selectivity inherent in recent governance efforts of humanitarian protection, doubts may be harboured whether this has inspired a pan-European Willkommenskultur that is sustainable. Solidarity with persons in need of protection may change over time and the end of a honeymoon may come sooner rather than later, as Thym had anticipated. This effect may be witnessed notably in Poland, where the government has recently decided to roll back some of the most generous policies for Ukrainians. Shortly after Russia’s invasion, the Sejm had passed into law a provision granting individuals concerned access to a multitude of social benefits and allowances. Slowly, however, there seems to be a change of hearts. In June, the Polish government decided to end subsidising households hosting refugees and free public transport.

While the impact of these cuts may not be particularly far-reaching or alarming, the government’s explanations motivating this step are. Reportedly, a PiS member of government justified the cutting of support measure by highlighting that the government was ‘convinced that many [Ukrainian] people in Poland are able to become independent and adapt’. Rhetorically, this moves the focus from the individual hardship of those fleeing war to their functional ability to ‘adapt’. This adds insult to injury, suggesting – in essence – that Ukrainians are just in it for free public transport. Accordingly, PiS appears to slowly make its way back to a less welcoming stance vis-á-vis immigration.

On a more principled level, this raises the question whether these policy changes mark the beginning of the end of a pan-European Willkommenskultur. Despite the tremendous hospitality that millions of persons fleeing war in Ukraine have experienced these past few months, arguments of such nature augur ill regarding the medium- and long-term implications for Ukrainians unwilling to return to their homeland. It indicates that, unless they ‘become independent’ of welfare, they may no longer be unequivocally welcome. Accordingly, even in the context of selective benevolence, generosity may have its limits. Poland – the Member State that has notably spearheaded efforts to accommodate persons fleeing the war in Ukraine – may lead the way.

SUGGESTED CITATION  Bornemann, Jonas: The Selective Nature of a pan-European Willkommenskultur: Reflections on the War in Ukraine and Its Implications for Humanitarian Protection, VerfBlog, 2022/7/12, https://verfassungsblog.de/the-selective-nature-of-a-pan-european-willkommenskultur/, DOI: 10.17176/20220712-233741-0.

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