As an unprecedented number of refugees and migrants are leaving their home countries, a pressure falls on states and international agencies to define, understand, and develop humanitarian responses to these crises. In just the last decade, millions of persons have become displaced, either internally or internationally, and sought refuge in neighboring countries. This mass movement of people is by no means a new phenomenon; for centuries, people have responded to instances of conflict, political oppression, economic instability, social inequality and human right violations by moving across geographic and political borders to other regions.
The large-scale influx of peoples across borders, resulting from mass flight from conflict, presents a challenge to asylum and resettlement procedures. In 1951, the process of developing a body of international law to protect refugees culminated with the creation of the Convention relating to the Status of Refugees. Although it was initially limited by geographical and time provisions, the 1951 Convention was the first documentation of the definition of the refugee, and the kind of legal protection and social rights these persons are entitled to in host states and by the international community. The 1951 Convention also determined a refugee’s obligations to host nations, and contained a thorough analysis for refugee status determination (including in depth inclusion and exclusion criteria). While the Convention recognizes a set of basic human rights for refugees and the need for international cooperation in the face of humanitarian crisis, it is not the most relevant document in the face of mass influx. In situations of mass migration, where there are large numbers of claims for refugee status, with circumstances for flight that may not be included in the Convention, or with states’ lack of ratification of the Convention, the 1951 Convention may not be the most useful source for legal obligations. (UNHCR, 1967)
With this arose the question that would later guide international law during situations of mass migration: How should member states address refugee crises in situations of mass influx? After the breakup of the Yugoslav state, many had no option but to move across borders in order to escape persecution and violence – Refugees flowed in hundreds of thousands to neighboring states, including Sweden, Switzerland, the Netherlands, Denmark, Norway and the UK. (Morokvasic, 1992) This crisis demonstrated the need for a concrete plan of action for the European Union in situations of mass influx, and thus, the Directive for Temporary Protection of Refugees was created in 2001. The United Nations High Commissioner of the Status of Refugees supported the Directive of Temporary Protection, as it was a means of accepting a large influx of refugees into member states through burden sharing. The system encouraged admission and protection to be given to all those who seek it, regardless of discrimination. (Arenas, 2005, 435-436)
The Directive of Temporary Protection, as regulated by Council Directive 2001 (55/EC), is a model of protection for refugees, specifically devoted to mass movements. It safeguards against abuse of the 1951 Convention to the detriment of asylum (for example, if the standard asylum protection system is struggling to cope with the demand of mass influxes, countries cannot just turn these refugees away). (Arenas, 2005, 435-436) Because the directive was created to work exclusively in emergency situations, it must compliment and work alongside the general asylum policies listed in international refugee law. It reduces disparities between countries of the European Union, given that there is solidarity between these nations in situations that warrant humanitarian response. The directive is shared between all the nations in the European Union, promoting responsibility and burden sharing during crisis, and confirming that non refoulement is still applicable, according to refugee law, in situations of mass displacement and migration. (Arenas, 2005, 435-436)
The definition of mass influx is important to clarify, as it is used in order to determine whether to use the temporary directive or general asylum policies to address migration. In the Directive, mass influx is defined as the “arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme,” requiring “an examination of the situation and the scale of the movements of displaced persons.” (Arenas, 2005, 439) The terminology is imprecise; it neither specifies a minimum number of refugees, begging the question of whether a mass influx is quantifiable, nor describes what to do in an imminent mass influx situation. When defining mass influx, it is also important to consider whether a country’s national sovereignty, and capacity to host that large a mass of refugees is relevant in the face of humanitarian crisis. The European Union does not specify whether they will create a means of refugees to enter their borders; rather, the definition of mass influx, and consequently the directive cannot apply unless the refugees are physically on the border, wanting to enter. Additionally, if the specific groups to whom the directive would apply are too large, the definition does not specify how many refugees a member state is required to admit, and whether they are allowed to turn away refugees who they simply cannot host within the state. A host nation must also apply to be considered for the temporary directive, and considering this application does not imply subsequent burden sharing of refugees within states, member states have no incentive to apply. (Arenas, 2005, 439)
These questions introduce a conflict of two areas: What is the difference between the general protection system and the temporary directive in terms of refugee rights and consequences for displaced persons? How important is the definition in gauging the flexibility of the procedure?
The concept of mass influx is based in three phenomena. First, the influx must be from the same country or geographical area. If for some reason, there is a cumulative influx migrants from multiple regions entering a country at once, the country cannot handle the situation as a mass influx, as it is not based in one geographical location. The influx must also be within a certain time frame, as the gradual arrival of asylum seekers, does not, in itself allow for application of the directive. The minimum standards for giving temporary protection in the event of a mass influx are defined within the system, as well as measures to promote burden sharing, a balance of efforts, and solidarity between member states. The Directive acts, most importantly, as a tool to prevent collapse of refugee systems in the face of a mass influx. (Arenas, 2005, 439)
Temporary protection allows for refugees in situations of mass influx to have recognized and documented permission to stay, along with protection, non-discriminatory treatment, and access to shelter, health, and education services. As stated in the Directive, it is “a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection.” (Arenas, 2005, 440) Unfortunately, temporary protection is also generally associated with protection of limited duration and standards of treatment lower than those stated in the 1951 Convention.