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  • dinafrancesca

Refugee and Asylum Law and Evacuation Primer, Ukraine edition

After receiving a number of inquiries, I am putting together some information here. But as a starting point (and an ending point), I want to say that people interested in assisting refugees and asylum seekers and anyone whose human rights are being eroded must look to the structures of power in their own governments. As long as we keep letting our politicians not only disrespect their international and domestic legal obligations, but weaponize anti-migrant sentiment to secure their own power, we will always be running in emergency mode, always responding to crises without a solution.

Citizens of Ukraine have visa waiver entry to most countries in Europe. Meaning, with valid passport, they get up to 90 days. I expect countries to be adopting temporary measures but for now, this suffices. See below and comments for up to date border country admission policies.

For countries with no visa waiver entry for Ukraine, like the US, the following is pertinent.

Refugees are people with a well-founded fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group. This definition comes from the Refugee Convention, which most of the world’s countries have ratified. Refugees receive the designation of refugee (often with the assistance of UNHCR or a partner organization), outside of their home country and outside of their country of final destination. Fewer than 1% of the total world’s refugee population is even considered for possible resettlement in a 3rd country, so this is not a typical outcome. Could the countries of the world take more refugees? Of course. Do they, typically no. The vast majority of the world’s refugees are hosted by countries least able financially and politically to host them. Most refugees are not in UNHCR camps. They are living wherever they can.

Asylum seekers are people who approach a border and request of the border regime that they be permitted to seek asylum. Asylum seekers must also ultimately prove a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group. This is the verbatim definition from US law, for example, and it is quite close to the Convention definition. In Europe, it is referred to as international protection but it's the same definition, same requirements.

Many countries have adopted domestic law and process to receive asylum seekers, but most have erected barriers to accessing that law and process. For example, most countries of Europe have agreed that asylum seekers must apply in the first country they enter. The US has also made these agreements with countries in North and Central America.

Secondly, and this is what most people fail to understand: the US and other countries fine commercial carriers (airlines, trains, ships) when they allow on board any person without a visa or travel document. This means that even if there is a way to leave during a crisis, and this is often difficult during war (e.g. Afghanistan or Ukraine), a person is unlikely to be able to get on a flight to any other country where they do not have a visa to enter. This is also true of trains into Europe and the Schengen Zone, unless those countries agree to relieve the commercial carriers of the fine, or commercial carriers decide to do what's right (Lufthansa did this for 2 days during the Muslim Ban in the US, for example). You cannot approach a border regime to ask to apply for asylum if you cannot get to the border or port of entry.

Poland's borders are currently open to all fleeing Ukraine and moat border countries are following suit, and also making interior trains free.

Poland, Slovakia, Romania, Moldova and Hungary could establish more border crossing points and lift all entry requirements (Poland lifted covid quarantine, set up reception points, and has made intercity trains free to refugees; Slovakia promised additional border crossing points as the current wait is 12 hours). Those with EU borders could also permit refugees to cross/transit to Europe. They may do so if they receive quid pro quo (Poland did this with Afghan refugees, but in reverse, taking them from Germany at Germany's request). Moldova and Belarus are effectively out of reach due to Russian occupation. There are already multiple FB and social media sites helping people organize ride shares out to the border and housing once there (Poland, Romania and Germany primarily).

As you may know, I have worked with refugees and asylum seekers in many countries, and for UNHCR. Following is some basic information. It is not legal advice. If you want solutions for refugees fleeing war, you must also fund lawyers with expertise who do this work. By and large, we are the same group of a few thousand lawyers scrambling to work, pro or low bono, every time there is a crisis. We have not made the laws complicated and immoral. We are trying to respond to laws that already are overly complicated and immoral. This is not sustainable.

First, you have to get to the border or port of entry. Generally speaking, it is unlawful for the country where you claim asylum to send you back without at least a cursory assessment of your asylum claim (see the international law principle of non refoulement which applies even to countries not party to the Refugee Convention). Countries disrespect this obligation All. Of. The. Time. Again, we must all demand more of our governments and politicians, during times of non-crisis, so that we don’t wind up here every time there is a crisis.

A person seeking asylum bears the burden of proving that they meet each prong of the definition, so they must prove: 1) they have a well-founded fear 2) of being persecuted (this looks like credible threats of state sanctioned (or ignored; see number 4) harm or actual harm) 3) for reasons of race, religion, nationality, membership in a particular social group or political opinion 4) the government is doing the persecuting, or is ignoring or acquiescing to or unable or unwilling to help prevent a non-governmental group from persecuting

Any of the countries bordering Ukraine can choose to lift or reduce these requirements. They need no legal permission to do so, only the political will (and realistically, the support of at least some EU countries).

Other considerations: War or civil unrest may be so dangerous to civilians that it can give rise to a right to temporary protection or subsidiary refugee status. This can be something like temporary protected status or humanitarian status, but it is host government specific.

When approaching a border regime, inform them if you fall into the categories below, as you may qualify for special protection. • A minor traveling alone • Over 65 years old • Alone with your children • Suffering from a serious illness or disability • Pregnant, or have had a baby in the past 3 months • Victim of torture, or physical, psychological or sexual violence • Injured or disabled • Victim of trafficking (labor exploitation, including sexual servitude and debt peonage) • You have a family member who is legally in the country where you are seeking asylum or another European country [note; family reunification processes run parallel to asylum processes, and also take time]

You should be ready to answer these questions as you approach a border regime: • What happened to make you leave your country (these reasons must include persecution or fears of persecution for reasons of race, religion, nationality, politics or social group) • whether other people like you have had similar problems, • Why you had to leave your country instead of relocating within it and why you can’t go back

It is advisable to travel with the following documents and anything documenting danger and/or persecution: passport, ID, medical records, letters, police reports or threats made in writing. Make copies. In some instances it may be safer to not carry anything except passports. Email yourself and a trusted individual copies of these documents. Take portable battery chargers for your phone.

Again, this is not legal advice. And again, if we want to be able to assist others during times like these, we must demand more of our own governments during times of relative calm.

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