Human Rights in Ukraine – 2005: XV The Rights of Refugees and Asylum Seekers
Ukraine’s geopolitical position is a major contributing factor to the high intensity of migration flow through its territory. According to official statistics from the State Border Guard Service of Ukraine, in 2005 more than 73 million people and almost 17.5 million vehicles crossed Ukraine’s borders. Traditional routes for illegal migrants heading towards Western Ukraine which are controlled by an international mafia also pass through Ukraine’s territory.
Ukraine’s allure as a transit point for «human trafficking» is linked to a whole range of factors:
– the lack of infrastructure on a substantial part of the state border;
– a notoriously high level of corruption among law enforcement officers, state border guard officials and civil servants;
– shortcomings in immigration legislation;
– authority is dispersed over a whole range of state structures empowered to control and regulation immigration in Ukraine;
– the low professional skills of a large number of immigration officials, etc.
Sometimes, for various reasons, groups of illegal migrants, among whom there are undoubtedly refugees in the understanding of the UN Convention relating to the Status of Refugees of 1951, are detained on Ukrainian territory, taken into custody or deported. The State authorities moreover often violate the fundamental rights of these people, this having on many occasions given rise to serious criticism both from within Ukraine, and from international human rights organizations.
There are a considerable number of contradictory legislative acts of different levels in Ukraine which regulate the legal status of foreigners, including the status of asylum seekers. A part of this legislation, in particular subordinate legislation, for example some Orders, Instructions or Resolutions of Ministry of Internal Affairs agencies, the State Border Guard Service and the Migration service, which run counter not only to the laws, but also to the Constitution of Ukraine, and to Ukraine’s international agreements in the field of human rights. Despite such lack of compliance, these legislative acts continue to be actively applied which leads to mass violations of human rights.
Legislation on refugees in Ukraine is mainly found in the Constitution of Ukraine, international agreements to which Ukraine is a signatory and the Law of Ukraine «On refugees».
At the constitutional level it is stipulated that «Foreigners and stateless persons may be granted asylum by the procedure established by law» (Article 26), however there is at present no Law of Ukraine «On asylum» (стаття 26), and therefore asylum is not granted in Ukraine[1]. Ukraine is a signatory to a whole range of international agreements which establish its commitments as far as protecting the rights of refugees and asylum seekers are concerned, in particular the : UN Convention relating to the Status of Refugees of 1951, which Ukraine ratified in 2002, and the 1967 Protocol to this Convention..
Regulation of the process of obtaining, losing or being deprived of refugee status, the legal and social guarantees for refugees and asylum seekers are set out in provisions of the Law of Ukraine «On refugees». The first version of this Law was adopted by the Verkhovna Rada of Ukraine in 1993 after an extremely large inflow of refugees from the military conflict zone in the Transdniestrian region of the Republic of Moldova. The second version, adopted in 2001, with small amendments introduced in 2005, remains in force at the present time.
In the Report of Human Rights Organizations «Human Rights in Ukraine – 2004»[2], a detained analysis was given of the legal regulation of the rights of refugees and asylum seekers and the problems which arise as a consequence in the country. In essence the situation as far as legislative regulation is concerned has not changed significantly, with the exception of the amendments to the Law on refugees which will be discussed later.
An analysis of the provisions of the Law of Ukraine «On refugees», taking into account the amendments and additions introduced in 2005, makes it possible to state that the said law on the whole is in keeping with international standards for protecting the rights of refugees and asylum seekers, although elements still do remain in it which run counter to Ukraine’s international commitments.
A positive amendment to the Law «On refugees» was the abolition at long last of the so-called rule of «three / five days», during which previous asylum seekers had to approach the relevant state bodies with an application to be granted refugee status. The lack of such an application within legally established time period was used by the Migration service as a formal excuse for not allowing asylum seekers to begin the procedure for receiving refugee status. This major shortcoming of the Law «On refugees» was removed by the Verkhovna Rada in 2005.
Despite this positive amendment, the Law «On refugees» still retains many elements which hamper the provision of international protection to refugees and asylum seekers, and which at times make a just procedure for establishing refugee status impossible. The procedure for obtaining refugee status in Ukraine remains extremely complicated, involving many levels.
At the beginning, according to the requirements of Article 9 § 7 of the Law «On refugees», the Migration service bodies decide whether to accept the applications from people applying for refugee status. A refusal is possible already at this level after a swift and perfunctory consideration of the application on the basis of a whole range of formalities which are in no way connected with whether a person really is a refugee according to the definition of the Law and of the UN Convention.[3]
A particularly serious problem remains in the lack of appropriate provision for asylum seekers who are at various stages of the procedure for seeking refugee status of the appropriate identification documents.
The Law «On refugees» defines several forms of passport-type documents which are issued to asylum seekers during the procedure for receiving refugee status. These are the so-called «identity papers» containing a photograph, basic biometric information about the person, which are issued by the bodies of the Migration service, confirm the identity of the applicant and are valid on the entire territory of Ukraine. However in cases where an individual is turned down at any stage of the procedure for receiving refugee status, these identity papers are immediately removed, and instead of them a person is issued with documents which are not valid as identification documents, do not contact a photograph or biometric details, do not require compulsory registration of place where the person is living or staying, etc.
The Ukrainian state has in this way itself created a situation whereby people who are still in the country legally since the refusal to continue with the procedure for granting refugee status may be appealed at an administrative level or through the courts, within a legally established period of time, are deprived of legal documents of identification, with this being the source on an everyday basis of callous persecution, demands that they pay bribes, and other illegal actions by those in positions of authority with regard to these asylum seekers. The lack of documents with a photograph providing identification of the asylum seeker sometimes makes it impossible for the person to receive legal aid (aside from an expensive lawyer) since without a passport-type document, notaries can not certify instructions or other civil – legal acts. State officials are well aware of this problem which would, moreover, be possible to resolve without changing the law. The will of the State Committee for National Minorities and Immigration of Ukraine would suffice, however it is this will which is lacking since, in our view, the immigration officials at all levels, together with the system for registering citizenship and physical entities of the Ministry of Internal Affairs (MIA) have a strong interest in maintaining the status quo, this being a situation of uncertainty, vulnerability and lawlessness in relation to refugees and asylum seekers.
In 2005, for example, a crisis arose in the country with documents for asylum seekers providing identification. The stocks of printed forms of the identity papers ran out, yet due to incomprehensible bureaucratic red tape between the Migration service, the MIA and the Security Service of Ukraine (SBU), the country ended up unable to respond effectively by producing new documents. As a result, in some regions of Ukraine departments of the Migration service illegally stopped accepting applications from asylum seekers, explaining it as being due to the lack of necessary forms for dentity papers.
| Asylum seekers from Uzbekistan A. and B. applied for refugee status to the department of the migration service in the Vinnytsa region at the end of November 2005. Illegally justifying the move by the lack of so called «green certificates» (confirming that a person has applied for refugee status), the Head of the Department refused to accept the application, advising them to «apply later». No papers were issued, nor was there any Migration service interview, after the two people sent their applications to the department of the migration service in the Vinnytsa region by post. As a result, the two were on Ukrainian territory for almost two months without legal documents, and the procedure for considering an application for refugee status was begun only 2 months after the two asylum seekers went to court asking that the actions of the department of the migration service in the Vinnytsa region be declared illegal. Straight after the approach to the court, the Department miraculously discovered such identity documents and issued them to the applications. The suit calling for the actions of the department of the migration service in the Vinnytsa region to be declared illegal has not yet been considered by the Zamostyansky District Court in Vinnytsa.
|
Even if they have received these papers, an asylum seeker in Ukrainian conditions remains vulnerable and without rights. The papers need to be regularly renewed by the bodies of the migration service with an appropriate stamp being added. In almost every region of Ukraine the migration service bodies demand that the asylum seekers reregister at their address with the police after each such extension of the papers. In our view, such demands are illegal since they do not comply with the provisions of the Law of Ukraine «On freedom of movement and freedom to choose one’s place of residence». The amount of the state duty which is payable for the registration of asylum seekers is not directly stated in any law or Decree, as a result of which in various regions of Ukraine the police demand arbitrarily imposed amounts of state duty for registration from asylum seekers. Human rights activists, as well as the UNHCR, have for years been highlighting this problem. It would appear, however, that nobody has any intention of resolving it.
Official statistics on refugees and asylum seekers in Ukraine are as follows:[4]
Table 1.
Report on the results of carrying out procedure for granting refugee status
in Ukraine in 2005 (as of 1 January 2006)
| Country of origin (citizenship, nationality) of the individuals applying for refugee status
| European countries | Asian countries | African countries | Other countries | Sub-total
|
| The number of applications for refugee status
| 111
| 1339
| 117
| 27
| 1594
|
| The number of applications which bodies of the migration service refused to accept
| 28
| 357
| 11
| 4
| 400
|
| The number of applications accepted for consideration by bodies of the migration service
| 87
| 986
| 106
| 23
| 1202
|
| The number of applications where a decision was taken to refuse to process an application for refugee status
| 55
| 451
| 39
| 9
| 554
|
| The number of applications where a decision was taken to process an application for refugee status
| 40
| 300
| 86
| 13
| 439
|
| The number of applications sent to the State Committee for National Minorities and Immigration of Ukraine for a final decision on granting refugee status
| 28
| 313
| 116
| 7
| 464
|
| The number of applications where the State Committee for National Minorities and Immigration of Ukraine made its decision
| 23
| 255
| 62
| 7
| 347
|
| The number of such applications where the State Committee granted refugee status
| 1
| 29
| 4
| 3
| 37
|
| The number of applications where the State Committee turned down the application for refugee status
| 22
| 226
| 58
| 4
| 310
|
One can thus see that for all of 2005 in Ukraine only 37 people, out of the almost two thousand who applied for refugee status, actually received it (it should be noted that the decision to process documents for the granting of refugee status does not at all imply that the status will be granted, with the final decision being in the hands of the State Committee for National Minorities and Immigration of Ukraine). Such statistics testify to the lack of will of bodies of the migration service to give objective consideration to applications for refugee status and clearly demonstrate the aim of not letting asylum seekers receive refugee status in Ukraine even if they have the grounds foreseen by international law. It is revealing, in our opinion, that at the same time according to the documentation regarding asylum seekers who approached the Office of the UNHCR in Ukraine, after an interview with UNHCR employees, the asylum seekers in virtually all cases were issued with documents confirming that they were under the protection of the UNHCR, this meaning that the UNHCR recognized grounds in accordance with the Convention for their applications for refugee status.
The results of carrying out procedure for granting refugee status in Ukraine in 2005
(as of 1 January 2006)
Statistics on the procedure for losing or being deprived of refugee status in Ukraine,
deportation, gaining Ukrainian citizenship in 2005 (as of 1 January 2006)
| Country of origin applying for refugee status | Number of individuals who lost refugee status
| Number of individuals who were deprived
| Number of individuals who received Ukrainian citizenship
| Individuals deported from Ukraine who were refused refugee status, lost this status, or were deprived of it, and not having other legitimate grounds
| |||||||||
|
| Total number of
| of whom
| Total number of
| of whom
|
| Total number of
| of whom
| Total number of
| of whom
| ||||
| children within a family
| children separated from their families
| children within a family
| children separated from their families
| children within a family
| children separated from their families
| children within a family
| children separated from their families
| ||||||
| Total
| 176
| 30
| 0
| 1
| 0
| 0
| 64
| 86
| 22
| 0
| 24
| 0
| 0
|
| European
| 11
| 2
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
|
| Russia
| 11
| 2
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
| 0
|
| including Chechnya
| 11
| 2
|
|
|
|
|
|
|
|
|
|
|
|
| Asian
| 149
| 27
| 0
| 0
| 0
| 0
| 60
| 82
| 22
| 0
| 24
| 0
| 0
|
| Azerbaijan
| 1
| 1
|
|
|
|
| 1
| 1
|
|
|
|
|
|
| Afghanistan
| 135
| 26
|
|
|
|
| 48
| 70
| 22
|
| 6
|
|
|
| Vietnam
|
|
|
|
|
|
|
|
|
|
| 1
|
|
|
| Armenia
| 4
|
|
|
|
|
| 4
| 4
|
|
|
|
|
|
| Georgia
| 4
|
|
|
|
|
| 3
| 3
|
|
|
|
|
|
| India
|
|
|
|
|
|
|
|
|
|
| 12
|
|
|
| Iraq
| 2
|
|
|
|
|
|
|
|
|
|
|
|
|
| Iran
| 1
|
|
|
|
|
| 1
| 1
|
|
|
|
|
|
| Pakistan
|
|
|
|
|
|
|
|
|
|
| 1
|
|
|
| Palestine
|
|
|
|
|
|
|
|
|
|
| 1
|
|
|
| Syria
| 1
|
|
|
|
|
| 1
| 1
|
|
|
|
|
|
| Sri Lanka
|
|
|
|
|
|
|
|
|
|
| 3
|
|
|
| African countries
| 15
| 1
| 0
| 1
| 0
| 0
| 3
| 3
| 0
| 0
| 0
| 0
| 0
|
| Angola
| 1
|
|
| 1
|
|
|
|
|
|
|
|
|
|
| Burundi
| 1
|
|
|
|
|
| 1
| 1
|
|
|
|
|
|
| Democratic Republic
| 1
| 1
|
|
|
|
|
|
|
|
|
|
|
|
| The Congo
| 7
|
|
|
|
|
| 2
| 2
|
|
|
|
|
|
| Rwanda
| 2
|
|
|
|
|
|
|
|
|
|
|
|
|
| Somalia
| 1
|
|
|
|
|
|
|
|
|
|
|
|
|
| The Sudan
| 2
|
|
|
|
|
|
|
|
|
|
|
|
|
| Other countries
| 1
| 0
| 0
| 0
| 0
| 0
| 1
| 1
| 0
| 0
| 0
| 0
| 0
|
| Stateless persons
| 1
|
|
|
|
|
| 1
| 1
|
|
|
|
|
|
Breakdown of refugees in Ukraine on the basis of gender and age
(as of 1 January 2006)
| Country of origin
| Number of refugees
| Including
| |||||||||||
| Younger than
| working age
| older than
| |||||||||||
| Total number
| Women
| Men
| Total number
| Women
| Men
| Total number
| Women aged 16 – 54
| Men aged
| Total number
| Women
| Men over 60
| ||
| Total:
| 2346
| 759
| 1587
| 558
| 285
| 273
| 1714
| 435
| 1279
| 74
| 39
| 35
| |
| European countries
| 164
| 81
| 83
| 49
| 24
| 25
| 106
| 49
| 57
| 9
| 8
| 1
| |
| Bosnia
| 4
| 1
| 3
|
|
|
| 4
| 1
| 3
|
|
|
| |
| Belarus
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Yugoslavia
| 4
| 2
| 2
|
|
|
| 4
| 2
| 2
|
|
|
| |
| Russia
| 155
| 78
| 77
| 49
| 24
| 25
| 97
| 46
| 51
| 9
| 8
| 1
| |
| including Chechnya
| 155
| 78
| 77
| 49
| 28
| 25
| 97
| 46
| 51
| 9
| 8
| 1
| |
| Asian countries
| 1862
| 626
| 1236
| 477
| 245
| 232
| 1320
| 350
| 970
| 65
| 31
| 34
| |
| Abkhazia
| 3
| 2
| 1
| 2
| 1
| 1
| 1
| 1
|
|
|
|
| |
| Azerbaijan
| 195
| 77
| 118
| 48
| 27
| 21
| 134
| 43
| 91
| 13
| 7
| 6
| |
| Afghanistan
| 1213
| 371
| 842
| 308
| 153
| 155
| 865
| 198
| 667
| 40
| 20
| 20
| |
| Bangladesh
|
|
|
|
|
|
|
|
|
|
|
|
| |
| Armenia
| 215
| 100
| 115
| 81
| 42
| 39
| 130
| 58
| 72
| 4
|
| 4
| |
| Georgia
| 78
| 46
| 32
| 22
| 11
| 11
| 51
| 32
| 19
| 5
| 3
| 2
| |
| India
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Iraq
| 40
| 6
| 34
| 3
| 1
| 2
| 36
| 5
| 31
| 1
|
| 1
| |
| Iran
| 30
| 5
| 25
| 2
| 1
| 1
| 28
| 4
| 24
|
|
|
| |
| Jordan
| 3
|
| 3
|
|
|
| 3
|
| 3
|
|
|
| |
| Kazakhstan
| 3
| 3
|
| 2
| 2
|
| 1
| 1
|
|
|
|
| |
| Lebanon
| 4
|
| 4
|
|
|
| 4
|
| 4
|
|
|
| |
| Pakistan
| 3
| 1
| 2
| 2
| 1
| 1
| 1
|
| 1
|
|
|
| |
| Palestine
| 5
| 1
| 4
|
|
|
| 5
| 1
| 4
|
|
|
| |
| Syria
| 39
| 3
| 36
| 4
| 3
| 1
| 34
|
| 34
| 1
|
| 1
| |
| Tajikistan
| 15
| 9
| 6
| 3
| 3
|
| 11
| 5
| 6
| 1
| 1
|
| |
| Turkey
| 8
| 1
| 7
|
|
|
| 8
| 1
| 7
|
|
|
| |
| Uzbekistan
| 1
| 1
|
|
|
|
| 1
| 1
|
|
|
|
| |
| Sri Lanka
| 4
|
| 4
|
|
|
| 4
|
| 4
|
|
|
| |
| Others
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Saudi Arabia
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| African countries
| 311
| 49
| 262
| 30
| 16
| 14
| 281
| 33
| 248
| 0
| 0
| 0
| |
| Algeria
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Angola
| 29
| 5
| 24
| 3
| 2
| 1
| 26
| 3
| 23
|
|
|
| |
| Benin
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Burkina-Faso
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Burundi
| 7
|
| 7
|
|
|
| 7
|
| 7
|
|
|
| |
| Guinea
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Guinea-Bissau
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| DR Congo
| 2
| 1
| 1
|
|
|
| 2
| 1
| 1
|
|
|
| |
| Ethiopia
| 34
| 3
| 31
| 2
| 1
| 1
| 32
| 2
| 30
|
|
|
| |
| Egypt
| 4
| 1
| 3
|
|
|
| 4
| 1
| 3
|
|
|
| |
| Zaire
| 10
| 3
| 7
| 1
| 1
|
| 9
| 2
| 7
|
|
|
| |
| Cameroon
| 1
| 1
|
|
|
|
| 1
| 1
|
|
|
|
| |
| Congo
| 92
| 22
| 70
| 16
| 8
| 8
| 76
| 14
| 62
| 0
|
|
| |
| Côte d’Ivoire
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Liberia
| 2
|
| 2
|
|
|
| 2
|
| 2
|
|
|
| |
| Libya
| 2
|
| 2
|
|
|
| 2
|
| 2
|
|
|
| |
| Madagascar
| 1
| 1
|
|
|
|
| 1
| 1
|
|
|
|
| |
| Mali
| 2
|
| 2
|
|
|
| 2
|
| 2
|
|
|
| |
| Rwanda
| 7
|
| 7
|
|
|
| 7
|
| 7
|
|
|
| |
| Senegal
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Somalia
| 25
| 1
| 24
|
|
|
| 25
| 1
| 24
|
|
|
| |
| Sudan
| 67
| 5
| 62
| 3
|
| 3
| 64
| 5
| 59
|
|
|
| |
| Sierra Leone
| 10
| 3
| 7
| 3
| 2
| 1
| 7
| 1
| 6
|
|
|
| |
| Uganda
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Chad
| 7
| 3
| 4
| 2
| 2
|
| 5
| 1
| 4
|
|
|
| |
| Mozambique
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Tonga
| 1
|
| 1
|
|
|
| 1
|
| 1
|
|
|
| |
| Other countries
| 9
| 3
| 6
| 2
| 0
| 2
| 7
| 3
| 4
| 0
| 0
| 0
| |
| Stateless persons
| 8
| 3
| 5
| 2
|
| 2
| 6
| 3
| 3
|
|
|
| |
Number of refugees in Ukraine (over the last decade)
The statistics here show that in 2005 the procedure for considering applications for refugee status was even slower than in the previous year. Moreover, the asylum procedure in the case of those from CIS countries effectively did not work at all, which is a cause of concern, given the complicated humanitarian situation in some countries of the CIS and the high risk of human rights violations should asylum seekers be returned to those countries.
| An asylum seeker from Belarus, S. In April 2005 submitted an application to be granted refugee status in Ukraine to the department of the migration service. Despite the fact that S. provided the migration service with a large number of documents confirming numerous instances of persecution which he had suffered in the country of his origin due to his opposition political and civic activities (illegal expulsion from university, detentions, initiation of a criminal investigation against him, membership of banned civic organizations and others), and notwithstanding the fact that among the documents presented to the migration service was a letter signed by several Ukrainian State Deputies calling for S. to be helped as a victim of persecution from the regime in Belarus, a mere day after an interview with S., the department of the migration service in the Vinnytsa region refused to process documents for his application to be granted refugee status in Ukraine. The appeal against this unlawful decision through the courts took almost a year. At first the Leninsky District Court in Vinnytsa (Judge Korol) unlawfully refused to accept S.’s complaint against the unlawful actions of the migration service, claiming that the time limit for the appeal had been breached. S. lost his appeal, and it was only the court of cassation appeal – the High Administrative Court of Ukraine that reversed the illegal rulings of the Leninsky District Court and the Appeal Court of the Vinnytsa region, and referred the case to the court of first instance for the substantive claims to be considered. It took three months for S.’s case to be considered in the court of first instance, and it was only in March 2006 that the Leninsky District Court in Vinnytsa recognized the refusal to process S.’s documents for his application to be granted refugee status in Ukraine and the failure to inform S. of the reasons for the refusal illegal. At the present moment the ruling of the Leninsky District Court has still not come into effect.
|
No application from citizens of the Russian Federation for refugee status in Ukraine was granted by the Ukrainian authorities in 2005. This places in question the objectivity of the procedure for determining refugee status with regard to this group of asylum seekers, and the independence of the authorized bodies under the influence of considerations of political expediency.
The permanent restructuring of the Migration Service of Ukraine throughout 2004 and 2005 made access to the procedure for applying for political refugee status exceptionally difficult, especially in eastern Ukraine, This in turn heightened the risk of those seeking asylum who do not have the appropriate papers being deported. Furthermore, our information suggests that in 2005 the technical conditions with relation to applications for refugee status, the Migration service interviews and registrations with law enforcement bodies, etc became considerably more difficult.
The staff of the migration service in the regions and even employees of the State Committee for National Minorities and Immigration of Ukraine are extremely poorly informed and do not understand the basic principles of international protection of refugees and asylum seekers, and sometimes do not recognize the very idea of defending human rights. In some regions an inexplicable tendency has emerged to appoint as migration service officials retired police officers previously working in sections dealing with citizenship and registration of individuals, with fighting illegal immigration, etc. In 2005 people the Vinnytsa Human Rights Group was helping from at least two regions of Ukraine reported verbal xenophobic or racist opinions addressed at them by officials of the migration service.
The problem of forced repatriation (expulsion or deportation) of asylum seekers to their country of origin remains acute. Extradition in Ukraine takes place without the mandatory use of court mechanisms. Even the possibility of court control over the justice and legality of deportation is highly questionable. Ukrainian legislation does not stipulate the mandatory involvement of lawyers in the extradition proceedings.
There have also been cases of asylum seekers and convention refugees being deported, this being in contravention of Ukraine’s international human rights commitments. When the asylum seeker’s legally stipulated identity document is taken away, he or she is automatically considered to be an illegal immigrant and is often subjected to administrative deportation, which may be against the person’s will.
Since Ukraine is not fulfilling fundamental commitments on protecting the rights of refugees, despite the fact that it signed and ratified the UN Convention relating to the Status of Refugees and the 1967 Protocol to the Convention, we consider that the immigration bodies of state signatories to the UN Convention relating to the Status of Refugees should not recognize Ukraine as a «safe country» to return refugees and asylum seekers to. On 1 September 2005 the Code of Administrative Justice of Ukraine came into force, and together with it, some amendments and additions were introduced to laws regulating the procedure for expelling aliens from Ukraine. Nevertheless the current administrative procedure for expulsion remains confused and places human rights in jeopardy.
The Code of Administrative Justice does not, for example, establish the periods in which expulsion takes place after a ruling is issued, does not make the presence of a defence lawyer (representative) obligatory, does not explicitly prohibit the sanctioning of extradition during court proceedings behind closed doors, and there are also no procedural guarantees for individuals who are awaiting enforcement of an expulsion order or a court review of an appeal against expulsion.
A fairly specific Ukrainian type of violation of migrants’ rights is the arbitrary refusal without any explanation to allow foreign nationals onto Ukrainian territory by bodies of the State Border Guard Service. According to official statistics, in 2005 the State Border Guard Service denied entry to 11,358 individuals it deemed «potential illegal migrants». Who these people are, who takes the decisions to classify them as «potential illegal migrants», how many of them are potential asylum seekers, how many of such asylum seekers were later returned to their country of origin with further violations of their rights, remain open questions with no official answer. However in August 2005 alone,. Ukrainian border guards refused entry to not less than 15 citizens of Uzbekistan who were trying to get to Ukraine specifically in order to apply for refugee status. Later some of these people did manage to get to Ukrainian territory.
The mechanism for the creation and functioning of the so-called «system of card registration» – or «blacklist» – of individuals prohibited from entering Ukraine remains unknown, and therefore a source of corruption.
A difficult problem is also the issue of the conditions for asylum seekers in temporary accommodation centres. These conditions may be categorized as cruel or degrading treatment. The state authorities claim that these terrible conditions are due to insufficient funding. However the Accounting Chamber of Ukraine points to inefficiency and illegal use of state funds, and sent documents to this effect to the Prosecutor General.[5]
| «Golden» migrants at the expense of impoverished Ukrainians?5 The average monthly figure for keeping one refugee in temporary accommodation centres in 2003 cost the Ukrainian Budget 811 UH, in 2004 – 848 UH. This was established by the audit of the use of state budgetary funds intended for providing assistance to refugees and creating accommodation centre for illegal migrants, undertaken by the Accounting Chamber of Ukraine. At the same time, the declared level of social protection for citizens of Ukraine during those years was 342 UH, and 362 UH, per person, and was in fact not safeguarded by the state. The auditors found that the State Committee for National Minorities and Immigration of Ukraine and its local offices had not properly managed budgetary funds allocated in 2003 and 2004 for providing assistance to refugees and creating accommodation centre for illegal migrants. 1,6 million UH of budgetary funds had not been spent on the purposes intended, 1,3 million UH had been used inefficiently, while 6,8 million UH had been spent with infringements of current legislation, including non-compliance with the requirements of the Law of Ukraine «On the purchase of goods, work and services with state funding» – 6,4 million UH. The use by the State Committee for National Minorities and Immigration of state funding was accompanied by unjustified management decisions. The channelling of state funds by the State Committee for National Minorities and Immigration into creating two additional refugee centres, given the fact that the Odessa centre is only 18,4% full, has caused substantial and unwarranted outlay for the state budget. The Odessa Refugee Accommodation Centre (ORAC) is able to house annually at least 1,000 people, or three times more than the number who gained such a right in Ukraine in 2004. The decision of the State Committee for National Minorities and Immigration to create two additional centres (the Yahotynsky centre in the Kyiv region, with 457 places, and the Perechynsky centre in the Transcarpathian region, with 100 places) were unwarranted, and the purchase and reconstruction of premises for them involved the inefficient use of 13.7 million UH of state funding. Through the Instructions of the Cabinet of Ministers of Ukraine № 803-I and № 637-I, the State Committee for National Minorities and Immigration (on its initiative) was transferred from the Ministry of Defence two military towns (town No. 7, Zhuravych, Volyn region, and No. 1, Rozsudiv, Chernihiv region), which promoted business activities of the State Committee for National Minorities and Immigration in areas under the jurisdiction of other departments. These huge property complexes (military town No. 7 includes 77 buildings and structures on 601.4 hectares of land, while town No. 1 has 49 buildings and structures on 33.05 hectares) are several times greater than the accommodation requirements for illegal migrants, and demand substantial outlay from the state budget for their maintenance and servicing. The creation by the State Committee for National Minorities and Immigration of accommodation centres for illegal migrants on the bases of towns of demobilized military units, and the refusal to accept from the State Border Guard Service the site «Pavshyne», equipped for accommodating illegal migrants, on the basis of the bids of the winners of the tenders, the subcontracting agreements concluded with them and the design and cost planning documentation for the reconstruction of buildings for these centres will lead to the inefficient use of state funding of 52.7 million UH. |
| The auditors established that for accommodating in the future illegal migrants in the Volyn town No. 7, the State Committee for National Minorities and Immigration set aside 10 buildings, and the Chernihiv town – 9. For the exploitation of the remaining state property, the management of the State Committee for National Minorities and Immigration created three state enterprises: the Zhuravychivske forest and hunting concern and two businesses for providing communal services «Strateg» and «Rozsudiv», the intended activities of which do not conform with the tasks vested in this central body of executive power. Material of the audit has been sent to the Prosecutor General of Ukraine The Press Service of the Accounting Chamber |
Recommendations
Only a few of the recommendations for improving the system for protecting refugees’ rights, published in the report of human rights organizations last year, were taken into consideration by the authorities.
| №
| Recommendations to the Ukrainian authorities on improving the system of asylum in «Human Rights in Ukraine – 2004»
| Whether implemented or not
|
| 1
| To pass a law defining the basic principles of immigration policy
| Not implemented
|
| 2
| At the legislative level to introduce additional forms of protection in Ukraine for people forced to leave their country of origin or of permanent residence (humanitarian protection, temporary protection)
| Not implemented
|
| 3
| To pass a Law of Ukraine «On asylum»
| Not implemented
|
| 4
| To define in legislation the authorities of the state migration service (in order to shorten the period of review of applications migration service agencies at the local level should be given the authority to take final decisions on applications for refugee status).
| Not implemented
|
| 5
| To create a system of immigration tribunals (specialized bodies with court power) independent of state executive bodies
| Not implemented
|
| 6
| to eliminate discrepancies in Ukrainian legislation which impede the exercise of the rights of refugees in accordance with Ukraine’s international commitments and according to international law.
| Deadlines for making applications were abolished, but there were no other improvements
|
| 7
| to implement measures aimed at helping refugees adapt into Ukrainian society, to ensure information support for refugees with regard to ensuring their rights according to Ukrainian legislation, to explain refugees’ rights and the mechanisms for ensuring them to state officials whose duties include providing for these rights, to help refugees learn Ukrainian and resolve problems related to finding work.
| Nothing done at state level
|
| 8
| to improve training of immigration specialists. To introduce compulsory courses on the rights of refugees for all employees of law enforcement bodies and border guard officers. To begin specially designed training or retraining of immigration specialists in the system of state higher education.
| Certain actions on the part of UNHCR, and NGOs, the European Commission Representation, etc
|
All suggestions for improving the system for granting political asylum listed above are still, we believe, relevant. We would add the following recommendations.
1. To create departments of the migration service in each region of Ukraine;
2. To provide 24-hour duty of employees of the civil state migration service at all international control points on Ukraine’s state border. To set up special premises where migration officers can interview potential asylum seekers;
3. To hold an independent legal audit of the system of extradition and deportation from the territory of Ukraine, especially to countries which are not members of the Council of Europe;
4. To put an immediate stop to the illegal discriminatory practice of avoiding granting refugee status to asylum seekers from certain countries (primarily CIS countries) and to hold officers of the migration service answerable for such actions;
5. To immediately stop the practice of deporting / extraditing people seeking asylum before all appeal procedure has been completed;
6. To ensure that state bodies are provided with qualified interpreters and lawyers to safeguard the rights of asylum seekers during the asylum procedure;
7. To introduce a single form of identity papers for people during the asylum procedure instead of the four documents which are presently used;
8. To improve the system for asylum seekers to receive identification codes and work permits;
9. To increase the number of accommodation centres for asylum seekers and refugees, to legislatively foresee the possibility of sending asylum seekers there from when they submit applications for refugee status;
10. To organize training in the basic principles of migration law for lawyers of administrative courts, including at least three judges of each district administration court and five judges of each appeal administrative court.
[1] The meaning here of the Ukrainian притулок – prytulok, is probably rather broader than the modern use of the word «asylum»., encompassing the general understanding of refuge, a place to stay. Presumably, what would be included in such a law would be provisions for people who may not receive refugee status, but cannot, for example, be sent back to a country with the death penalty, etc. I have avoided in many places using the customary English «apply for asylum» in order to retain the distinction drawn by the author. (translator’s note).
[2] The Report is available in Ukrainian and English at the UHHRU website: www.helsinki.org.ua.
[3] According to the rules of provisions in Article 9 § 7 of the Law of Ukraine «On refugees» «A body of the immigration service may decide to refuse to accept an application for refugee status in cases where the applicant has pretended to be another person, or where an application for refugee status was previously turned down due to the absence of the circumstances envisaged in paragraph two of Article 1 of this law, if the circumstances mentioned have not changed»
[4] Figures from the State Committee for National Minorities and Immigration of Ukraine as of 1 January 2006: http://scnm.gov.ua.
[5] Considered by the Panel of the Accounting Chamber on 5 April 2005. Available online at: http://ac-rada.gov.