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15 February 2022

Ukraine: are we looking at a refugee crisis?

With tensions rising on the Ukrainian border, the displacement of people has already commenced. If a full-scale Russian offensive breaks out, the scale of the displacement will dramatically increase.

The government in Kyiv has said that between three and five million people could be forced to leave the country, with 1.5 million already internally displaced by fighting in the east of the country.

The Polish government has stated that they are prepared for the worst case scenario and ready to accept an influx of refugees, possibly up to 1 million. But even with Poland’s commitment, vast numbers of people could be left without any obvious place to turn.

The situation in Ukraine

The political elite in Ukraine are currently fractured, making it easier for the Kremlin to sow discontent in the nation.

The former president Petro Poroshenko led Ukraine against Russia. However, he is now facing allegations of treason by his successor Volodymyr Zelenskiy. He is alleged to have been involved in the sale of large amounts of coal that helped finance Russian-backed separatists in eastern Ukraine in 2014-15.

Poroshenko is a pro-European politician who has been critical of Moscow and vehemently denies the allegations. The allegations have generated concerns of undemocratic score-settling and alarmed the international community, given the current circumstances on the border.

The former Swedish prime minister Carl Bildt described the charges against Poroshenko, for which he could face up to 15 years in prison, as “clearly political” and warned the case could be hugely damaging to Ukraine.

At a time when Ukraine requires stability, its leaders are increasingly involved in political spats. This has the potential to greatly assist Russia’s subversive efforts and increase the potential for upheaval within the country.

The options available to Ukrainian refugees

It is worth noting from the outset, that although Ukraine is not part of the European Union (“EU”) the country holds an Association Agreement with the EU. This allows Ukrainian citizens visa travel to the Schengen Area for up to 90 days, within a 180 day period. It goes without saying that this has significant implications for the migration we may see in the coming weeks.

In theory, Ukrainians could travel through the Schengen Area and claim asylum in an EU state. That said, 3 million Ukrainians already rely on humanitarian aid and have done so since the onset of the armed conflict in Donbas (Eastern Ukraine) in 2014. Until now, this situation has not resulted in any marked increase in asylum applications by Ukrainians in the EU. This suggests that even if some Ukrainians flee the conflict they may yet return to Ukraine or seek to rebuild their lives without relying on the asylum framework.

Is there any risk that the EU will remove visa-free travel for Ukrainians following the destabilisation? In our opinion, this is unlikely for a number of reasons. Firstly, there are a number of member states who are vocally and vehemently opposed to Russia’s militaristic attitude, including Poland, Germany and the Baltic states. These states are highly unlikely to support any motion to remove the travel arrangement. Secondly, imposing a restriction on the visa regime would be seen my many as a betrayal of Ukraine and a gift to Russia.

As a result, the EU must accept the possibility that millions of Ukrainians may seek to flee the conflict and enter the EU. Given the EU’s response to previous large-scale influxes of refugees, this could create a logistical and humanitarian crisis.

The UK’s response

The British government has been vocal in its support of Ukraine. Given the ongoing disputes with the EU, and specifically France, regarding migrants crossing the Channel, the Ukraine crisis could present an opportunity to rebuild relations with the UK’s continental neighbours. By offering a visa route to the UK, the government could gain political points with the EU and simultaneously advance its diplomatic interests against Russia.

Although the circumstances are very different to those in Afghanistan, due to a lack of direct British involvement, it is therefore not outside of the realms of possibility that the UK could initiate a resettlement scheme, much like the one announced (but as yet not properly introduced) in August 2021 for Afghan citizens fleeing the Taliban.

Similarly, with the introduction of laws by the Chinese government in Hong Kong that interfered with Hong Kong residents’ human rights, the Home Office introduced a British National (Overseas) visa for Hong Kongers and their family members, known as a BNO visa. This allows applicants to live, work and study in the UK. The UK even offered Hong Kong residents who were at risk the opportunity to travel sooner if there were “exceptional circumstances”.

As stated above, there is a clear difference between the situation in Afghanistan and Hong Kong and the situation in Ukraine, namely the extent to which the UK has a direct colonial history in the region. Nevertheless, given the political support at home and abroad, we could see a scheme introduced to ameliorate any refugee crisis that unfolds at the displacement of people from Ukraine.

What about the current position in the UK?

Absent any bespoke re-settlement scheme, Ukrainian nationals who can reach the UK will need to make a conventional application for asylum or humanitarian protection. This means that they will need to prove that they are at a real risk of persecution for a ‘convention reason’ (like race, sexuality, religious belief, or political opinion), or that there is a real risk their human rights will be breached if they are forced to return.

The worse the situation in Ukraine becomes, the more likely it is that such claims will be accepted. In the past, the mere fact of war has occasionally been sufficient to result in the grant of a visa to stay in the UK – where the war is so widespread and severe that anybody who goes back would face a risk of death or inhuman or degrading treatment.

In 2020, the Upper Tribunal handed down an unhelpful judgment on asylum for Ukrainians who refuse to be conscripted to fight on behalf of their country. The Tribunal held that such individuals were unlikely to be persecuted because of a lack of evidence that they would face criminal or administrative proceedings, and because it was not likely that Ukrainian conscripts would be required to engage in conduct that amount to a breach of international humanitarian law.

The Nationality and Borders bill, currently in the House of Lords reading stage, will go further to make claiming asylum more challenging to anyone coming from Ukraine, if it is passed into law (see our previous article). Specifically, this will be due to the “first safe country” concept and the possible removal of an applicant while their claim is processed. If the bill is passed into law, it could make asylum claims inadmissible, especially where Ukrainians may have fled to Poland or Romania to escape conflict before travelling to the UK.

If the conflict between Ukraine and Russia escalates, then it will be worth watching this space for any further decisions. The Payne Hicks Beach Citizenship and Immigration Team are available to advise on any specific cases.

Article by Matt InghamRichard Milford (Citizenship and Immigration Team at Payne Hicks Beach) and Isaac Ricca-Richardson (Garden Court Chambers).

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