More Secure, More Self-Determined… For Now
by Ulrike Bialas
Nearly seven years after the “long summer of migration” in 2015, the so-called refugee crisis has turned out also to be – in my opinion, even primarily – a crisis of rejected asylum seekers. The majority of those who have fled to Germany over the past few years now live in Germany not with residence titles, as asylees or refugees, but with short-term, restrictive statuses.
It seems that with this new rapidly emerging refugee crisis, the EU and German federal government are making better choices regarding the legal status of those fleeing.
On March 3, the EU decided that the current flight from Ukraine constitutes a mass influx of foreign nationals, who cannot return to their home country, and therefore justifies the application of the so-called Temporary Protection Directive. This directive was passed in 2001 after the historical experience of the Yugoslav Wars in the 1990s. Although it has been around for more than twenty years, the section is only now being applied for the first time.
One might wonder why the law is so readily being used now but was left dormant when millions fled Syria in the wake of the Civil War that began in 2011. Many of the volunteers and advocates who I have heard at volunteer meetings over the past weeks nonetheless see the decision to finally use the Temporary Protection Directive now as a positive sign, and perhaps even a signpost for the future governance of all refugees in Germany. The better management of this refugee crisis could show, they hope, that no one – neither the state nor the people seeking its protection – benefits from the segregation, bans on legal employment, and serially issued short-term IDs that have become the norm for asylum seekers in Germany.
In many ways, the EU’s exceptional response to all those who are now fleeing Ukraine echoes what migrants’ rights advocates have long demanded for all refugees: open escape routes, immediate protection instead of protracted asylum procedures, and free choice of the protection-granting country. Volunteer organizations and political initiatives – many of them remnants from Germany’s last refugee crisis – are telling Ukrainians not to apply for asylum in order to save them from the kind of odyssey asylum seekers are typically forced on: exhausting interviews, years of scrutiny and uncertainty, life in camps without privacy, and at the end, in all likelihood, a rejection.
Yes, even Ukrainians might not be granted protection if they filed an asylum application. Protection quotas for Afghans in Germany, for instance, have declined, and most Afghan asylum seekers are now rejected as the Federal Office for Migration and Refugees argues that they could seek safety within Afghanistan in a region that is not as yet hell (although, perhaps, its precipice). Likewise, in the case of applications by Ukrainians, the Federal Office might identify parts of the countryside to which those from other parts of the country could flee instead of to Germany. Ironically, “Don’t apply for asylum!” is indeed very good advice for refugees from Ukraine.
Instead, Ukrainians are automatically eligible for a residence permit under § 24 of the German Residence Act, the section through which Germany will fulfill the EU’s Temporary Protection Directive. Under § 24, Ukrainians will be immediately able to work or study, are eligible for full social benefits, and are allowed to travel, among other “privileges” compared to previous asylum seekers in Germany.
There’s a caveat though: the section only grants a residence permit for – depending on the German federal state – one or two years, and there are as yet no plans for what will happen to Ukrainian refugees in Germany after that period. One must, however, have lived in Germany with a residence title for five years before being eligible to apply for permanent residency. The bridge between one kind of legal status and a more permanent one is missing for Ukrainians; in this way, they are like refugees and asylum seekers who came to Germany before them.
The course of war is as difficult to predict as the course of a life. We do not know if this war will be over in one or two years. We do not know how many Ukrainian refugees will in one or two years still be sitting on packed bags, jumping at the first opportunity to return home, and how many will instead have made a new home in Germany. Even if the war ends soon, some places are simply destroyed. A friend from Mariupol has called her hometown “dead.” There’s no coming back from death.
Of course, we have some immediate things to attend to first. Where will people stay? How will they learn German, and which schools will their children attend? What emotional and physical care do people need? As drawn-out as each day of war, flight, and arrival may feel, however, the years will pass quickly, as they always do, and I think we would do good to think about legal options for Ukrainians before the residence titles we are now issuing expire. In its coalition contract drafted in late 2021, the German federal government made some good suggestions for how to tackle the indefinite legal precariousness too many migrants in Germany live under. Why not combine efforts here and address mistakes of the past as we prevent their replication in the future? Otherwise, we might soon wake up to another large population living in Germany in legal limbo.