UNHCR is concerned about the impact of the amendments in the legislation on persons seeking protection in Ukraine

    

UNHCR welcomes the fact the Ukrainian authorities are continuing their efforts to improve the quality and harmony of legislation in the area of asylum. As the Visa Liberalization Action Plan between the Ukraine and the European Union stipulates that such legislation should meet both international and European standards, UNHCR continues to support the authorities in understanding and applying these standards.  In this regard, we note that the Law on amendments to some legislative acts of Ukraine in connection with adoption of the Law of the Law of Ukraine on the Legal Status of Foreigners and Stateless Persons came into power on 15 November 2012.   

This law?s aim is beneficial:  To ensure that other relevant legislative acts reflect the many improvements introduced under the Law of Ukraine on the Legal Status of Foreigners and Stateless Persons dated 22 .09. 2011For example, this law could have contributed to the functioning of the asylum system in Ukraine.    

However, UNHCR notes that in the newly-adopted amendments, the authorities have missed opportunities to bring other legislative acts into line with European standards and indeed reverse a number of progressive norms introduced in the 2011 Law on the Legal Status of Foreigners and Stateless Persons.  Four key issues need further attention.

photo of Volyn Migrants Custody Centre

First, the amendments related to the Law on Immigration fail to offer any possibility for persons with complementary protection to obtain permanent residence status.  European Union standards require that all beneficiaries of international protection should be able to obtain permanent residence status after five years.[1]  The purpose of this norm is clear:  Permanent residence sets the basis for full integration of these persons into the national society, which promotes greater economic and social cohesion.  It is unfortunate that a proposed amendment by MP Kivalov to introduce this norm was rejected.  The remote prospect of settling in Ukraine will continue to drive asylum-seekers to leave for the EU through irregular means and will fuel existing trafficking and smuggling networks.  

Second, UNHCR had advocated with the authorities to introduce periodic judicial review of detention in cases where persons are in administrative detention pending deportation.  In Ukraine, such detention can last up to 12 months.  The European Court of Human Rights has held that in cases involving deportation, judicial review should be frequent (generally about every two months), since ?factors relating to the progress of?the deportation proceedings and the authorities? diligence in the conduct of such proceedings, may change over the course of time.?[2] In Ukraine, the absence of periodic judicial review has led to prolonged detention of asylum-seekers.  For example, in 2012, UNHCR has observed that many asylum-seekers (including persons from Afghanistan, Eritrea and Somalia) have remained in detention even while their asylum applications were under substantive consideration.  These asylum-seekers have filed appeals against their deportation and detention; however, practice shows that they must wait for lengthy periods?often 6-9 months?for Appeal Administrative Courts to consider their appeals.  Many asylum-seekers thus remain in detention for twelve months at the cost of the state, as the authorities do not even attempt to deport them for various practical or financial reasons.  Then they are released because the maximum detention period has been served with no solution available to them other than to attempt to cross the border into the European Union once again.    

Third, the amendments to the Law on the State Border Guard Service of Ukraine give the State Border Guard Service the power to authorize the detention of foreigners and stateless persons in the Migrant Custody Centre, if the individuals were detained in the border regions while attempting or making an illegal border crossing. Until now, such detentions have been authorized by a court, not an administrative body, and this is the better approach.  According to the Ukrainian constitution, detention should be authorized by a court (Art. 29), and European human rights law reinforces this norm, which is a fundamental guarantee for individual liberty.      

Fourth, the authorities missed an opportunity to harmonize the term "a person in need of complementary protection" in Art. 1 (13) of the Refugee Law with the broader definition of protection in Art. 31 of the Law on the Legal Status of Foreigners and Stateless Persons. The definition in Art. 31 extends protection to persons who cannot return to their countries of origin because of ?widespread violence in situations of international or internal armed conflict or systematic violations of human rights,? and corresponds to the standards of the European asylum acquis (namely Art. 15(c) of the Qualification Directive).  In practice, this definition would ensure that persons fleeing conflicts, such as the current conflict in Syria, would benefit from protection.  As noted by Noel Calhoun, UNHCR?s Regional Protection Officer, ?This disjoint between the two laws means that people fleeing armed conflict will fall into a dangerous legal vacuum:  The Law on Foreigners protects them against forced return and expulsion, but the Refugee Law does not provide them a legal status.  These people can not be deported, but they are considered as staying illegally in Ukraine.?

Finally, UNHCR notes that the amendments have introduced a change in the jurisdiction of the courts for hearing cases on forcible expulsion. Such cases were previously considered by circuit administrative courts, but now they will be considered by courts of general jurisdiction at the location of the state authority initiating the case.  The reasoning behind this change is not clear.  However, UNHCR notes that the administrative courts have been developing expertise in the consideration of asylum and migration cases over the past years, and this change will necessitate a greater investment by the authorities in training a new group of judges in this field of law  (More than 30 well-reasoned circuit administrative courts decisions on deportation cases are available at the section III http://www.unhcr.org.ua/uk/resursi/2011-10-14-07-44-55).    

UNHCR recognizes the efforts made by the Government of Ukraine to harmonize national legislation and achieve compatibility with international and European standards.  UNHCR stands ready to support the state authorities in addressing the remaining gaps, so that persons with international protection needs can enjoy their rights inUkraine. 



[1] the 2003/109 EU Directive concerning the status of third-country nationals who are long-term residents and its 2011 Recast.

[2] Abdulkhakov v. Russia, 2 October 2012, Application no. 14743/11, par. 214.