Attachments
1. Introduction
This briefing provides an update on access to protection in Europe (both EU and non-EU countries) for stateless people fleeing the war in Ukraine. It draws on information gathered from our members and local lawyers, published in our updated country briefing series. Stateless refugees from Ukraine continue to face specific challenges and protection gaps. Two years on from the full-scale Russian invasion of Ukraine and as discussions are underway about what next following the expiry of protection under the EU Temporary Protection Directive (TPD), this new briefing summarises these challenges and makes a series of recommendations.
There are at least 35,000 stateless people in Ukraine according to UNHCR. Other sources suggest there could be many tens of thousands more. Many of these people have links only to Ukraine (and in many cases were born in Ukraine) but lack the documents to prove this. Ukraine has a statelessness determination procedure (operational since May 2021), which enables stateless people to apply to be recognised as stateless and acquire a temporary residence permit. After two years, they may acquire permanent residence. However, recognition levels are still low. As of September 2023, 790 people had been granted a temporary residence permit through the procedure. While the introduction of an SDP is welcome, obstacles to access have been reported.
2. Eligibility for Temporary Protection
The 2022 EU Council Decision implementing the Temporary Protection Directive (TPD) granted immediate protection in the EU to Ukrainian nationals and people who had international protection in Ukraine prior to 24 February 2022. Stateless people who can prove they held permanent residence in Ukraine before 24 February 2022 and ‘cannot safely return to their country or region of origin’ are eligible for Temporary Protection, but EU Member States can choose whether to apply the TPD or ‘adequate protection under national law’. EU Member States may also extend Temporary Protection to others, including stateless persons who were ‘residing legally’ in Ukraine. As a result, EU Member States are not currently required to extend Temporary Protection to most stateless people and those at risk of statelessness who are/were living in Ukraine (i.e. people without proof of permanent residence or international protection in Ukraine).
Accordingly, alternative routes, such as asylum, may be the only option, but they have drawbacks and are limited in some countries. Several non-EU countries have adopted temporary protection mechanisms in line with the EU Council Decision, with similar eligibility criteria. This has led to significant protection gaps for stateless people and people at risk of statelessness fleeing Ukraine, particularly those (the vast majority) who do not have documentary proof of residence or nationality status in Ukraine.
3. Access to the territory
Most European countries allow entry into their territory for people fleeing Ukraine on humanitarian grounds regardless of their identification documents or residence status in Ukraine. This includes countries that allow entry for the purpose of an application for international protection or statelessness status, as is the case, for example, in France, Romania, and Moldova. In some European countries, those leaving Ukraine must demonstrate a connection to Ukraine, or further inquiries may be carried out if they lack the required evidence to enter. Good practice, as seen in Italy, for example, is for access to other European territories to be a flexible procedure and for non-documentary evidence, such as oral testimony, to be accepted as adequate proof of links to Ukraine. Moreover, in Georgia, border guards have discretion to grant access to the territory and, in practice, entry is permitted for people with habitual residence in Ukraine, whether permanent or temporary, including stateless people and people with expired documents.
However, in some countries, including Ireland and the UK, it is unclear whether all those fleeing Ukraine may enter the territory regardless of documentation status. Furthermore, Hungary has strengthened its border-control measures since January 2023, making it unlikely that nonUkrainians, including stateless people, are granted access to the Hungarian territory unless they possess valid travel documents, are not subject to an entry ban, or did not enter Ukraine after 24 February 2022.
Instances of refusal of entry due to a lack of documentation have been reported in Bulgaria and Poland. In Bulgaria, while the law provides that people not eligible for temporary protection may apply for international protection at the border, in practice, it is highly unlikely that they will be able to and might be pushed back. Undocumented stateless people are also at risk of detention in Bulgaria and Poland, where a lack of documentation is considered ‘irregular’. As of October 2023, 49 people with undetermined nationality were recorded as being permitted entry but placed in detention by court order in Poland.
Moreover, there have been cases of imputed (people being assigned an assumed nationality)
Ukrainian or other nationality to stateless people or people at risk of statelessness fleeing Ukraine, including in Poland and Romania.