This is one of Marine Le Pen’s arguments to justify her reversal on welcoming refugees, as 2.5 million people have fled Ukraine since the start of the Russian army offensive on 24 February, according to the count of the UN High Commissioner for Refugees, Filippo Grandi, in a tweet Friday March 11.
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The candidate of the National Rally for the presidential election declared, Thursday March 3 on the set of “Elysée 2022”, “that it is perfectly natural that we show solidarity” towards them. Those fleeing the invasion by Russian troops are “war refugees who depend on the Geneva Convention”she justified.
This position contrasts with the previous outings of the far-right MP on Syrian and Afghan refugees, also driven to exodus by conflicts in their countries. Asked on set about this distinction, Marine Le Pen retorted: “He there is no war in Afghanistan, it’s over.” The presidential candidate affirms in particular that for Afghan women, deprived of a large part of their rights since the return to power of the Taliban in August 2021, it is the “right of asylum” which applies, for which “You have to show that you are individually persecuted by your government”. “It’s not the same procedure at all”she concludes. But this that really the case?
Contrary to what Marine Le Pen asserts, the 1951 Geneva Convention relating to the status of refugees (PDF), ratified by 145 States including France, does not mention “war refugees”. This term has no legal existence, explains to franceinfo Céline Madeline, lawyer and member of the association Group of information and support for immigrant workers (Gisti).
“The term ‘war refugee’, like that of ‘political refugee’, does not exist legally. It comes from everyday language.”
Céline Madeline, lawyerat franceinfo
The Geneva Convention does not establish categories of refugees. It simply provides that this status can be issued to “any person who (…), having a well-founded fear of being persecuted on account of his race, his religion, his nationality, his membership of a certain social group or his political opinions, is outside the country of which he has nationality and cannot (…) claim the protection of this country”. “There is therefore no specific war criterion for seeking asylum and for benefiting from refugee status”enlightens Tania Racho, specialist in asylum and immigration issues, member of the collective of university lawyers “Les Highlighters”.
In France, it is the French Office for the Protection of Refugees and Stateless Persons (Ofpra) which examines asylum applications in the first instance and recognizes or refuses refugee status, in particular on the basis of the Geneva Convention, and more rarely on that of the preamble to the 1946 Constitution which concerns the protection of journalists, intellectuals or artists. People recognized as refugees obtain a residence permit valid for ten years, specifies the Ofpra.
It is wrong to “to imply that the Ukrainians would depend on the Geneva Convention a contrario of the Afghans”Judge Celine Madeline. “There are Afghans who obtain refugee status on the basis of the Geneva Convention”underlines the lawyer. In 2020, just over a thousand Afghans have been recognized as refugees following a decision by the Ofpra or, after appeal, to the National Court for the Right of Asylum (CNDA).
That said, many exiles from Afghanistan benefit from another form of asylum granted by France: subsidiary protection. By default, when the asylum application does not meet the criteria for refugee status, the Ofpra or the CNDA can invoke this mechanism introduced into the law in 2003. This subsidiary protection can apply to any person “for which there are serious and proven grounds for believing that she would run a real risk in her country”, notes the Ofpra. Three serious attacks are listed: “the death penalty or an execution”, “torture or inhuman or degrading treatment or punishment” or even “a serious and individual threat against his life or person due to indiscriminate violence resulting a situation of internal or international armed conflict”.
According to the Ofpra activity report (PDF)in 2020some 6,400 Afghans benefited of this status, which notably enables them to obtain a residence permit for a period of four years. “It was much easier for Afghans to get there compared to refugee status because all they had to do was establish that they were from an area that was in the throes of fighting.“, explained in August 2021 to franceinfo the jurist Marta Nahay. Since the coming to power of the Taliban during the summer of 2021, the notion of war in this country is more debatable, recognize the specialists interviewed by franceinfo. However, this does not does not prevent the French authorities from granting subsidiary protection under the risks of “inhuman or degrading treatment”, explained the CNDA in October.
The exodus of millions of civilians fleeing Ukraine has led the European Union to implement another mechanism, never deployed before: temporary protection. This system, governed by a European directive of 2001 in the context of the war in ex-Yugoslavia then in Kosovo, should enable the Twenty-Seven to “coping with a massive influx” of displaced persons, deciphers the doctor of European law Tania Racho.
This exceptional procedure is intended for people fleeing the war in Ukraine, whether they are Ukrainian nationals or long-term residents in this country. Like refugee status, temporary protection allows them to stay in the European Union, to work there, to access social assistance and housing, the school system and medical care. However, this mechanism only applies for a renewable period of one year, “in the idea that when the situation improves, they can return to their country”to analyse Tania Racho.
“It is a temporary status of immediate protection”hammered Marlène Schiappa on franceinfo on Tuesday. “A Ukrainian who arrives in France immediately is under protection status”said the Minister Citizenship Officer.
Reception of Ukrainian refugees ➡️ “As soon as there are families who will need France, France will be there. Every Ukrainian who arrives must be able to have accommodation”, says the Minister Delegate for Citizenship. pic.twitter.com/L2hJQZChGL
— franceinfo (@franceinfo) March 8, 2022
This device was put in place to avoid “saturate the asylum system, which is already very heavy in France”, advances Celine Madeline. En 2019, the processing of requests by the Ofpra and the CNDA took on average 325 days, i.e. nearly 11 months, according to a report by the association Forum Réfugiés-Cosi (PDF) published in June 2020. With the temporary protection system, “Iimpact on asylum should therefore be more gradual”assured Tuesday the director of the OfpraJulien Boucher, heard by the Senate on welcoming Ukrainians.
In the longer term, if the conflict lasts, “asylum will be intended to take over from temporary protection”, continues the director of the Ofpra. Un Ukrainian wishing to be recognized as a refugee in France will therefore have to follow the classic route and file an asylum application with the Ofpra. After reviewing his case, he “will be eligible for refugee status or subsidiary protection”says Julien Boucher.
Although the implementation of this temporary protection for Ukrainians was unanimous among the 27, several political leaders or associations regretted a “variable geometry application”. “VSThis directive has never been activated in similar situations, in particular during the large influx of people exiled to the borders of the EU following the recent conflicts in Syria, Libya, in Afghanistan”, regrets Amnesty International. During the migration crisis of 2015, “the war situation in Syria was completely within the framework of the temporary protection directive”, believes Tania Racho. However, “at that time, no one wanted to activate it”recalls the specialist.