Temporary asylum: the erosion of durable refugee protection in Europe

As a researcher of refugee law, I am contacted regularly by Ukrainians in Europe who share the effects that insecure legal status, travel restrictions and extended family separation have on their lives. Some are from eastern Ukraine, where widespread destruction and dislocation after more than a decade of conflict make return ‘home’ in the near future unlikely. Many want to know: is this prolonged uncertainty justified?

This is one of the questions that colleagues and I have addressed in a 4-year research project (TemPro) on the ‘temporary turn’ in asylum in Europe. While displaced Ukrainians are the most visible group affected, the security of protection has eroded for all refugees during the past two decades and especially following the ‘summer of migration’ in 2015. At that time, European countries not only sharpened external border controls but also made asylum more precarious for people with recognized needs for protection. Measures adopted in our four case countries – Norway, Denmark, the UK and Germany – include:

• The grant of short-term residence permits to certain refugee groups with more limited rights (often related to family reunification and welfare);
• Stricter requirements for permanent residence and citizenship, such as longer residence periods, language proficiency, minimum income, and proof of ‘good character’;
• Mandatory protection reviews providing for the withdrawal of refugee status if conditions underpinning a person’s asylum claim have changed; and
• Intensified revocation practices permitting the loss of permanent residence and citizenship for settled immigrants on grounds of fraud, criminality or threats to public security.

Taken together, these measures institutionalize a more temporary and conditional form of protection, reshaping refugees’ prospects for settlement and the work of integration bureaucracies.  

As social science researchers using ethnographic and legal approaches we asked: how does this temporary turn affect the lives of refugees with protracted needs for protection? How does the law balance states’ migration control interests with people’s attachments to their country of residence? The tensions between control and inclusion are coming to a head as the ‘temporary protection’ status granted refugees from Ukraine, intended as a stop gap measure, extends to five years.

Here are some of our findings, supplemented by related research from Norway and Denmark. 

Lesson 1: Deterrence policies do not lead to return

In Denmark and Norway, the resource-consuming review of refugees’ protection claims rarely culminated in return or motivated active return planning. In Norway, efforts to withdraw refugee status from those deemed to no longer need it centered on Somali refugees from Mogadishu. Of the 1600 cases in this ‘Somali portfolio’ (2016-2020), 90% were set aside with no revocation decision, typically because the individual had another basis for residence. In the meantime, as other research shows, uncertainty about the process and outcome caused deep anxiety, disruptions in work and education, and mistrust of the state. Today most revocation activity in Norway concerns cases of fraud. In these as well, the time lag between a person’s arrival and revocation means that most people have alternative grounds to remain (based on family ties, humanitarian reasons or the need for protection).

In Denmark, the ‘Damascus project’ to review Syrians’ protection needs resulted in revocation in less than 20% of all cases (a decision to revoke residence was the outcome of 34% of the cases in the first instance, overturned in 50% of cases upon appeal). Many Syrians found new ways to secure their residence in Europe. People worked hard to fulfill criteria for permanent residence, engaged in anti-regime activism which raised their profiles as potential targets, or moved to other countries. Those with revocation decisions were expected to remain in return centers until diplomatic relations with Syria resumed. In addition to incentivizing disappearances and labor exploitation, these policies separate families and have had profoundly negative effects on people’s physical and mental health (Mortensen, forthcoming).

Lesson 2: Requirements for permanent residence promote family separation and precarious labor - not integration

The temporary turn has made permanent residence more difficult to obtain and easier to lose for all migrants, not only refugees. Permanent residence is important, because it means a person can stay in a country even if the basis for their original permit – a job, a marriage, the risk of persecution in their country of citizenship - no longer exists. In Norway, immigrants must now pass language and civic knowledge tests, and earn an income of €34,000 to qualify for permanent residence. For refugees, the minimum residence period has increased from three to five years. Other research has shown that income requirements for permanent residence incentivize short-term jobs over longstanding attachments to the labor market. We found that temporary permits also affect employers’ desire to hire and invest in refugees.

Renewing residence involves unclear requirements and long waiting times. Thus, in addition to the strain of having a short-term permit to begin with, the need to regularly reapply leaves people without ID documents for extended periods while their cases are processed. During this time, refugees may be unable to work, access public services, or travel to see close family members.

Lesson 3: Conditions for permanent residence complicate the daily work and professional identities of integration professionals

Social workers and/or teachers in Norway, Denmark and Germany reported that the conditionalities for permanent residence and citizenship produce emotional stress in their encounters with students. Many report that legal insecurity negatively affects refugees’ language acquisition. Further, they are concerned about the long-term exclusionary effects for certain groups, including those with low schooling, health issues, and/or caring obligations.

In Norway, language teachers also censor the language exams required for permanent residence and citizenship. They report a shift in their role from facilitating the integration of newcomers to becoming a gatekeeper to political rights through their censoring work.  The sharpening of language requirements affects their own practices, as they feel compelled to ‘teach to the text’ instead of focusing on language needed to navigate everyday life.

Lesson 4. Revoking the right of residence to people with strong attachments to the country of asylum violates fundamental rights

We found that refugees’ ties to the communities in which they live are given minimal or variable legal weight in decisions to revoke residence status. This unpredictability undermines the rule of law (i.e. the principle of legal certainty) and effective protection of both Article 8 ECHR (the right to private and family life) and Article 3 CRC (children’s best interests). While the European Court of Human Rights has given states a relatively wide leeway to pursue restrictive asylum policies, our research shows that there are still several ‘grey areas’ in the jurisprudence which states exploit in support of efforts to remove migrants. One example is the categorization by Norwegian and British courts of lawfully present refugees as ‘precarious migrants’ entitled to less protection of their Article 8 rights.

Lesson 5.  Even ‘safe and legal’ pathways are filled with pitfalls

In the UK, the proliferation of ‘bespoke’ or ad hoc protection categories results in a lack of transparency and differential treatment within and among refugee groups. Depending on the terms of the programs through which people have been resettled, they may receive privileged access to housing or an easier path to permanent residence. Differences exist in treatment of refugees from the same country (i.e. Syrians who came as asylum seekers and Syrians resettled from third countries) and between refugees from different countries who face comparable threats (i.e. Syrians, Afghans, Ukrainians). Because the terms of protection and the groups covered diverge, often without a rational basis, we found that bespoke channels place considerable administrative burdens on the integration bureaucracy.

Lesson 6. Differential treatment undermines equality and reduces trust in the state

The proliferation of residence statuses and fragmentation of rights leads to a more stratified society. Some policies, including language and income requirements, play out differently depending on a person’s age, gender, care obligations, experience of trauma, health, ethnicity, mode of arrival, national origin, legal status and educational background. For many refugees with no prospects of safe return in the foreseeable future, conditions for continued residence are heard to ‘speak racism’ and entrench a sense of exclusion.

Recommendations

The increasingly fragmented asylum regimes and the deepening clefts between temporary, permanent and citizen residents in Northern Europe have profound implications for integration policies, welfare state values, and public trust. While there is no foreseeable shift in the temporary turn, our findings suggest opportunities to moderate their most negative effects:

• Ensure equal treatment of people with similar needs for protection. The creation of weaker protection categories with fewer rights and/or a shorter period of validity may give authorities a sense of control, but the proliferation of statuses overstretches the immigration bureaucracy, entrenches untenable tensions in the work of integration practitioners, and erodes migrants’ trust in the state.
• Limit the protracted risk of revocation. Considering that many refugees may not meet the requirements for permanent residence for a considerable period (if ever), the possibility of cessation of refugee status should expire within five years. Such time limits would ensure refugees’ right to a durable solution within a reasonable time. For permanent residents and citizens, time limits on revocation will ensure that resources are used to target recent or ongoing criminal activities.
• While temporary protection is not a ‘durable solution’, policies that combine a predictable path to settlement with mobility rights - enabling refugees to meet family, find more suitable work, test the waters at home, or join a more welcoming community - can help to secure greater inclusion in countries of asylum and promote voluntary return.
• Ensure that access to permanent residence and citizenship is predictable and fair. State authorities should collect data on existing requirements to identify and minimize their differential impacts based on gender, educational level, age, nationality, and legal status.