New regulations could pose a threat to asylum seekers

Since 25 August 2009 the State Border Guard Service has introduced spot checks at border passes to ascertain that foreign nationals and stateless persons from a number of countries have sufficient funds to pay for their stay in Ukraine. The relevant Order No. 519 was issued by the State Border Guard Service on 14 July. On 2 September six people from the Democratic Republic of the Congo were sent back from Ukraine to their place of origin. According to media reports, this was on the basis of the new Order. The reports suggest that at least one may have been a potential asylum seeker however a representative from the UNHCR was not allowed to see him.

The new rules encourage violation of the rights of refugees and asylum seekers, as well as leading to infringement of the principle of non-refoulement.

According to these rules, citizens of 90 countries, as well as stateless persons living in those countries, if entering Ukraine or travelling transit through Ukraine must have an amount which is 20 times the subsistence minimum established in Ukraine. The calculation for expenses for a period of 1 to 30 days, regardless of the period the person is staying, is 12 thousand 620 UAH (over 1600 USD).  A person arriving should be able to produce this amount in cash or a bank card, with a printout for the last three days. If the person cannot confirm sufficient funds, a decision is taken to refuse him or her the right to cross Ukraine’s border.

5 post-Soviet republics are included in the list of countries: Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan). The others are African, Asian or Middle Eastern countries.

Aspects of the decision which are of concern:

1. It remains unclear how the list of countries has been drawn up. The extent to which this is a political step is demonstrated by the removal from the list of Moldova – shortly after the Order came into force. The reason was that the Moldova authorities asked to remove a measure which discriminated against their nationals, and no “need to fight illegal migration” stood in the way
2. The criteria for determining the amount of money are also unclear. The amount is such that far from all Ukrainian nationals returning home from abroad could prove that they had it
3. The same problem applies with the imposition of a month as the minimum period during which a person must demonstrate the ability to support him or herself even if the person is come for several days or a week.
4. The Order says nothing about waiving this ruling in the case of asylum seekers or refugees. At present there are exclusions for foreign students studying in Ukraine; people with Ukrainian registration as well as a few other groups. People seeking asylum in Ukraine can be subjected to such a check and if they don’t have the money may simply not be allowed into the country.

Such measures are ill-founded and arbitrary, and of a discriminatory nature. They create the conditions for corruption and illegal arrangements for crossing the border even for those who until recently could enter the country legally.

As reported here already, on 2 September the UNHCR made public an appeal to the Ukrainian government in which is expressed concern “that the financial requirement should not affect access to the asylum procedure and undermine the non-refoulement principle envisaged by the 1951 Geneva Convention relating to the Status of Refugees, which Ukraine acceded to without any reservations in 2002. The right to seek asylum is a fundamental human right, enshrined in the Universal Declaration of Human Rights”

The association “Human Rights in Central Asia” and the project “Without Borders” of the Social Assistance Centre call on the Ukrainian government: to

• explain on what basis the amount required and the month period were established;
• explain whether the Ukrainian authorities are prepared for possible steps by foreign governments in response.

With regard to protection of refugees and asylum seekers, we call on them to:

• ensure that asylum seekers have access to the national procedure in cases where the application for asylum is made on crossing the border;
• ensure unobstructed access by UNHCR representatives to people detained at the State border and who ask for asylum in Ukraine;
• provide an explanation as to the application of the new rules in the case of asylum seekers and refugees..

Order No. 519 also creates conditions for refoulement, or the return of asylum seekers to their country of origin where they could be subjected to persecution and torture. In view of this, we also call on the Special UN Co-Rapporteurs on Torture and on Human Rights and Countering Terrorism to look into this.

Very slightly abridged from a text by Iryna Fedorovych from the Social Assistance Centre