Differential Treatment and Temporary Protection Arrangements: Discrimination or Legitimate Distinctions?

Abstract This article analyses the differential treatment among refugees inherent to temporary protection arrangements. What was particularly remarkable in the EU’s response to displacement from Ukraine, for instance, was the free access for Ukrainians to EU territory and even free choice to seek protection in any Member State. Thus, the persons under this arrangement are better off initially, and this may seem preferable to the deterrence measures taken in response to other cases of ‘mass influx’ which restricted, rather than facilitated, access to protection. As it may in the longer term be better for some refugees to undergo the ordinary asylum procedure and eventually receive refugee or subsidiary protection status, temporary protection raises complex questions of differential treatment. At the same time, within the ordinary asylum procedure some EU Member States have introduced distinctions resulting in differential treatment of certain refugee categories whose need for protection is perceived to be temporary. This article positions the implementation of the various temporary protection arrangements within the general norms of non-discrimination by analysing key aspects of differential treatment and attempting to identify the boundary between lawful and unlawful distinctions.