Humanitarian means to political ends? Temporary protection of people forced to migrate in Colombia and Poland

Author:	Maciej Grześkowiak und Juliana Poveda-Clavijo
Date:	31. August 2022

Temporary Protection (TP) mechanisms are premised on what some scholars believe to constitute a customary norm of temporary refuge. The latter seeks to cope with considerable movements of people forced to migrate by allowing the host states to suspend the regular functioning of asylum systems (which are usually premised on an individual assessment of each case) and simply admit all people who are incoming, while providing some basic humanitarian treatment. But, depending on its design and specific political settings, temporary refuge is operationalised in various fashions, often selectively and for political gains.

This blog post examines two recent cases of temporary protection implementation in situations of major crises of migration management: the arrival of refugees and survival migrants from Venezuela to Colombia (2015) and of refugees from Ukraine to Poland (2022). It aims to highlight different contexts in each host country, but it also notes the commonality of the politically driven discourses around forced migration behind both TPs. Implications for humanitarian actors are also considered.

Colombia:  from a refugee and IDP country of origin to a major host state

Until 2015, Colombia was one of the main expulsion countries in the Americas. The internal armed conflict and socio-political violence triggered around 1 million exiles (1982-2020), including recognised refugees, asylum seekers, and populations under international protection. Additionally, there were 9 million internally displaced persons due to violence, which garnered the focus of the humanitarian and legislative agendas in the country, resembling a contention logic. Nonetheless, the trend changed abruptly in 2015 with the Venezuelan socio-political crisis.

That year, the parliamentary elections in Venezuela exacerbated the violent tensions between Nicolás Maduro’s government and the opposition, and inflation levels reached 121%. As a result, around 2.5 million Venezuelans have been forced to flee to Colombia in less than seven years. 9 thousand (an still counting) Colombian refugees, asylum seekers, and residents in Venezuela were returned to Colombia. The negotiations between the Venezuelan government and their opponents in Mexico have been slow, as has the improvement of the economy. Hence, there is no prognosis that forced migration from Venezuela to Colombia will stop soon.

Initially, Juan Manuel Santos’s government in Colombia was timid in adopting measures to protect Venezuelans who had arrived. The Venezuelan government’s role as a companion country in the Colombian Peace Negotiations between the Colombian State and the former FARC-EP guerrilla dissuaded the Colombian state from clear statements regarding the humanitarian crisis. Colombia’s reaction only came in 2017 with the first Special Permanence Permit (SPP).

Then, under Ivan Duque’s government, 13 analogous measures followed the SPP, guaranteeing regular migratory permanence of 2 years and access to some rights (health care, education, and access to the job market). The increasing migration pressure and the humanitarian actors’ lobby triggered the adoption of these measures. Besides, those were also influenced by a more tense Maduro-Duque relationship and a lack of agreement in the region to host Venezuelans. Nonetheless, those instruments only covered 40% of the Venezuelans in Colombia because of the restrictive and excessive requirements that they imposed. Hence, the humanitarian actors gathered in the Interagency Group for Mixed Migration Flows (GIFMM in its Spanish acronym) and continued advocating for legal reforms toward lasting protective measures as well as directly addressing Venezuelans’ basic needs as providers of goods and services.

Finally, in 2021, Duque’s government adopted the Temporary Protection Statute (Decree 216/2021; TPS). The TPS aims to provide regular migratory status for 10 years and access to rights for all those not protected by the SPP or under irregular migratory status in the country, asylum seekers, and those Venezuelans entering the country through legal pathways until March of 2023. Thus, the UNHCR assessed it as ‘the most important humanitarian gesture in decades’. 

The situation’s exceptionality and the government’s generosity was the core message for presenting the TPS before the public opinion. However, it was more about a strategy to handle the previous SPP coverage failures and the animosity within the national public opinion, as well as the requests oriented to the international community. At the national level, there was an increasing discomfort with Duque’s government. People impoverished and affected by the pandemic and violence, including the new IDPs, perceived they were put aside by the Duque’s government and humanitarian actors, triggering annoyance and even xenophobia against Venezuelans. At the international one, it was necessary to attract the Global North’s cooperation.

To date, 2.3 million Venezuelans have begun the procedure through their registration, and 1.3 million have effectively received their identity document, the Temporary Permanence Permit (TPP), which enables their access to rights. The number of TPP applicants has exceeded the Colombian government’s initial projections. Now, with Gustavo Petro’s government, obligations towards IDPs, refugees, and people forced to migrate  – not only those coming from Venezuela – are still there, and likewise the challenges for their equitable protection and integration (i.e., the lack of institutional reforms, poverty, and food insecurity).

Poland: hostility turned to (un)conditional hospitality?

In recent years, Poland had been known for its reluctance when it comes to admission of people forced to migrate, to put things mildly. In the context of the 2015 crisis of migration management in Europe, it refused to participate in the relocation program resulting in the Court of Justice of the EU ruling against countries who disregarded relevant decisions of the Council. In the months directly preceding the Russian invasion of Ukraine, Poland was deploying a consistent tactic of pushbacks along its border with Belarus.

Given this, granting absolute access to its territory to all those who fled Ukraine after 24 February 2022 may seem a complete about-face in approach. In the weeks following the invasion, the Act on Assistance for Ukrainian Citizens took effect, which generally amounts to granting the newly arrived national treatment in many aspects of the state policy (such as healthcare and other social benefits), or even preference in some areas over the Polish citizens (for example, in recruitment for scholarly positions at public universities without an open competition). The law provides for a legal stay of Ukrainians for the period of 18 months with the possibility of extension for another 3 years. The Act is complemented by the Council of the EU’s decision triggering the EU temporary protection directive, which applies to some that found themselves outside of the scope of the Act (for instance, third-country nationals who are permanent residents of Ukraine). That said, the subjective scope of both instruments taken together is still a narrow one. For instance, temporary residents of Ukraine and all those who chose to leave the country prior to 24 February 2022 are not covered by any of the protection mechanisms and thus do not benefit from rights they provide for, except the one to a lawful stay in Poland. In other words, while access to the territory of Poland is by principle granted to all those fleeing Ukraine, a substantially narrower group of them benefit from a broad array of entitlements.

According to the UNHCR’s data, more than 1.2 million war refugees from Ukraine are now present in Poland. The Government’s rhetoric surrounding the new arrivals is characterised by the language of humanitarianism and compassion, and, as such, it is matched by the predominantly welcoming attitude of the society as a whole, and massive response of humanitarian actors as well as a larger civil society. Remarkably, this spontaneous humanitarian mobilisation was praised and encouraged by the Government. This remains in stark contrast to the Government’s narrative regarding irregular migrants crossing from Belarus. The latter narrative was premised on the overarching political goal to justify violently executed pushbacks which were made possible also by the suppression of activism in the border area, resulting in humanitarian aid being delivered largely in defiance of the state. Humanitarians that chose to nevertheless help persons hiding in vast forests and marshes of eastern Poland ran the risk of arbitrary arrest and criminal charges.

The arising dissonance can be explained by the predominantly political goal of capitalising on the rally-round-the-flag effect. In the context of the humanitarian crisis on the Belarus-EU border, people migrating were portrayed as a threat orchestrated by the Lukashenko’s regime. This, in the Government’s narrative, justified a strict non-entrée response coupled with a display of siege mentality. On the other hand, admitting Ukrainians in itself constitutes an act of defiance against Putin’s Russia, which in Poland is predominantly perceived as a serious threat.

Admitting Ukrainians thus complements the overall generous support of Poland to Ukraine and matches the narrative of the Government in this regard. This is not to say that capitalising on the ongoing war is the only or dominant rationale behind the introduced measures. However, when comparing it to the response to the humanitarian crisis on the Belarus-EU border (ongoing to this day), one can only wonder whether the policy response to the arrival of war refugees from Ukraine would be equally generous were it not in the Poland’s geostrategic interest and in line to what the electorate was expecting.

Humanitarianism within political scenarios: the policy change leitmotiv 

As shown above, in both Colombia and Poland the emphasis on the national borders to prevent people forced to migrate and refugees was a common policy-making approach before the currently applied TPs. While the subsequent change embraced the new regional dynamics of forced migration and the necessity to cope efficiently with its massiveness, it was also at least partially motivated by a political calculation. Regardless of the TPs’ utility in terms of protection and solidarity, they are a product of pragmatism in specific political settings. This is also visible in other TP mechanisms applied in host countries (i.e., Australia, Turkey, US), which imply political calculation and shaping of narratives around people and issues involved in the crises of migration management.

In Colombia and Poland, the TPs emerged in settings of political tensions (i.e., Maduro vs Duque and the general animosity between Warsaw and Moscow). Hence, they constitute an act of defiance against a perceived external adversary where sheltering populations expelled by this adversary becomes a political statement in its own right. Both TP mechanisms also make very visible the Global North – Global South imbalances through outsourcing of forced migrants’ protection by the Global North to the Global South (in the Colombian case) and exclusion of some nationalities from protection measures (in the Polish case).

Nonetheless, regardless of whether the introduced TP measures were motivated by humanitarianism or purely political calculation, in both Colombia and Poland the TPs have the potential of sparing both hosted populations from lingering in protracted refugee situations. By granting broad rights and offering opportunities for self-reliance, the TPs may lay some groundwork for future durable solutions in the form of local integration, should repatriation not be possible. In the Colombian case, this is especially relevant, given that the ’emergency’ has already lasted for a considerable time and Venezuelans are still highly vulnerable, and because this is an opportunity to equitably address the needs and rights of the vulnerable host communities, including the IDPs.

In Poland, it is still premature to move toward durable solutions, though the introduced measures do much to avoid perpetuating the emergency and allow for early self-reliance. In the present stage of this refugee situation, it is crucial to account for the basic needs of the people who arrived. Despite some mechanisms present in the introduced legal framework, questions regarding longer-term accommodation and cash assistance for the people who are in need seem to be especially pressing as winter looms over the horizon. Enhanced coordination between the government and humanitarian actors will also be required.

The principle of temporary refuge is understood as a necessary link between non-refoulement and international solidarity. By invoking temporary refuge, the host state communicates to the international community the need to actively strive towards a durable solution. In the interim, humanitarian assistance to those temporarily protected is often required with necessary support of third states and international actors. Let us thus conclude by expressing hope that the conditioned political will exemplified by TP mechanisms in Poland and Colombia will not be extinguished by inaction and passivity on the part of third states unwilling to share the responsibility for the hosted people. Such an outcome – a reversal of inclusive policies of host states paired with the inaction of the international community – would feed into the social marginalisation of people forced to migrate and, in the longer run, perpetuate both refugee situations. What requires a constant reiteration is also a call for an equal level of protection of people forced to migrate regardless of their race, religion or country of origin. Striking contrasts in this regard are currently observable today in Poland, where at the Ukrainian border people forced to migrate are provided with meaningful protection and assistance while at the Belarusian border they are subjected to violent pushbacks with little regard for their most basic rights.

*Maciej Grześkowiak – Chief Coordinator for Scientific Cooperation at the Office of the Commissioner for Human Rights (Polish Ombudsperson), PhD candidate at the University of Warsaw. Coordinator of a research project concerning protection gaps in the international refugee protection framework. Formerly involved in humanitarian response to Syrian refugee situation in the Middle East.

**Juliana Poveda-Clavijo – Human rights lawyer and MA in Political and Development Studies, major in Peace and Conflict Studies. She has worked with and researched transitional justice and forced migration in the Colombian-Venezuelan context. Her contribution to this blog post is based on her recent working paper: Policy-representations in the TPS for Venezuelans in Colombia.