Human rights in Ukraine 2009 – 2010. 22. Protection of rights of foreigners, refugees and asylum seekers
V.Batchayev
The stay in a foreign country is always difficult; it entails complications both for the foreigners and for the country’s officials. Introducing certain legal norms, the authorities officially declare their position as regards immigrants, try to forestall and, possibly, to resolve the problems which become inevitable once people come to another country to reside in its territory. In the process every country looks for its own immigration policy models, which would not only ensure the structuring of immigration processes and overcoming adverse effects of non-controlled immigration, but would also comply with generally accepted international principles of migrants’ freedoms’ and rights’ protection, contribute to their quicker adjustment in the new national, social/economic and cultural environment. However, the development of any immigration policy concept starts with analysis and objective assessment of immigration situation in the country and with forecasts as to the immigration flows dynamics in the future.
At the dawn of Ukrainian independence, the power fashioned its policy using the European immigration law and international human rights standards as guidelines. The goal was to establish the national legal regime, under which the foreigners staying in the country, with few exceptions, would enjoy practically the same rights as the Ukrainian citizens. This principle of relations was spelled out in the Constitution of Ukraine (article 26 and article 2 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”.
However, due to liberalization and insufficient security of the state border, Ukraine encountered an unprecedented phenomenon – mass non-controlled arrival of aliens into its territory. Other priorities in state policy, lack or deficiency of relevant normative acts, constrained finances and economic misbalance led to certain confusion and helplessness in Ukrainian authorities’ response. Till 1996 practically not a single agency, not even internal affairs bodies, officially fought illegal migration. However, the discontent with the situation, officially expressed by Western European community (the illegal migrants used Ukraine as a channel of their transition to the Western Europe) forced authorities to focus at the issues of illegal migration and to take certain measures aimed at stabilizing immigration processes. The Ukrainian government passed a number of legal and normative acts regulating the stay of foreign citizens in Ukraine, and set up state agencies authorized to implement control over foreign citizens’ sojourn in the country. Militia became one of such entities. Enhancing its operation every year it started to identify and punish foreigners culpable of violations.
It is noteworthy that in its further legislative activity, with active participation of the Ministry of Internal Affairs, Ukraine gradually but firmly started to move away from the declared principles of national legal regime which regulated the foreigners’ stay in the country, in the direction of restricting and narrowing their rights. Severe opposition to illegal immigration became the main trend in the state policy. Having no resources to eliminate the “transparency” of the state border, which was practically non-existent in certain areas bordering with Russia and Moldova, the state chose an alternative priority of exposing and detaining illegal migrants in its own territory, and identified the body in charge, i.e. the Ministry of Internal Affairs.
After the Programs of counteracting illegal migration for 1996-1997 and for 1999-2001 were approved by the Cabinet of Ministers of Ukraine (respectively, Decree No 83 of January 15, 1996 and Decree No 273 of February 27, 1999) the resistance to illegal migration became one of the priority tasks in the operation of the law-enforcement departments. The Ministry of Internal Affairs urgently developed respective departmental normative acts; the territorial branches received the new reporting forms on the number of illegal migrants detained and instructions concerning the reinforcement of activities aimed at exposing foreigners guilty of violations.
The operation of the Ministry of Internal Affairs in this area gained new impetus with the adoption of the “Program for counteracting unlawful migration for the years 2001-2004”. In this document term “illegal” was ominously replaced by “unlawful”. It was at this time that the Ministry devised a range of normative documents, which not only openly contradicted the declared European immigration policy guidelines, but, in some instances, provided for direct violation of foreigners’ rights and freedoms. The internal affairs bodies introduced the practice of annual special operations and campaigns (“Foreigner”, Student”, “Migrant”, “Tourist”, “Entrepreneur” etc.), aimed at exposing the infringing foreigners; they also started the implementation of centralized fingerprinting system of monitoring “Migrant” and multi-stage control of foreigners residing in Ukraine, mobilizing the staff of passport offices, housing and communal services, district militia inspectors, village councils’ staff. The servicemen of law-enforcement bodies organized mass raids on students’ dormitories and private apartments, audits of the companies founded or staffed by foreigners, halts and check-ups of motor vehicles without any consideration for the right of inviolability of residence, privacy and personal inviolability. The practice of total passport checkups for persons of non-European appearance in public places and requisitioning of foreigners’ national passports to verify the legality of their stay in Ukraine became widely spread.
In order to report the efficient implementation of the state Program of counteracting unlawful migration the Ministry of Internal Affairs demanded of their subordinate bodies and departments constant annual growth in respective figures and indicators. Achieving these figures became the issue of special monitoring, while the heads of territorial departments, who failed in delivering anticipated results, were severely punished.
Active operation of law-enforcement entities in counteracting illegal migration and broad coverage of this relatively new topic by mass media brought to life a phenomenon known as “migrantofobia” in Ukrainian society. Justifying the necessity for most severe measures against illegal migrants, militia, supported by mass media, presented a portrait of an “illegal migrant” in predominantly dark colors – as a terrorist, a criminal, a carrier of contagious diseases, a pretender to your job. Perpetual media articles covering detaining of illegal migrants in Ukraine and crimes they perpetrated, stressing their ethnic origins, offering negative examples of inter-ethnic clashes in other countries, exaggerating the threat of terrorist attacks – this militant media campaign allowed Ukrainian militia to gain support and approval of their actions among population at large.
Precisely targeted, intensive, supported by public, long-term fight of the law-enforcement agencies against illegal migration brought certain results – by 2003 militia expelled significant number of foreigners, who arrived in the 90-ies, out of the country. Some foreigners managed to legalize their status in Ukraine or moved to the Western Europe for permanent residence. New waves of immigration were of smaller scale; the procedure for obtaining entry visas became more rigid; the state border security improved; in the meantime Ukraine earned the reputation of highly xenophobic state, which made it less attractive for the foreigners.
Therefore, the immigration situation in Ukraine eventually changed: due to geographical position and relatively low level of economic development, it became the starting and transit point for the migration flows instead of their final destination. Foreigners from so-called countries of “traditional migration”, as a rule, entering Ukraine, do not intend to reside in its territory – the immigrants are not happy with lack of economic stability, lack of governmental support in finding employment, low rate of social protection and manifestations of ethnic discrimination in Ukrainian society. So far, one can conclude that illegal foreign migration does not present a significant threat for the national security of Ukraine, due to its transitory nature. The European Union, however, still regards it as a destabilizing factor alongside with mass entry of Ukrainian citizens into the EU countries.
The illegal migration per se, as a dynamic phenomenon, has also changed – its scope decreased; it lost its spontaneous essence and became an international criminal business, well organized and supported by corruptive network in the government. Beyond any doubt, these changes in illegal migration nature and forms require cardinal revision of the counteraction methods, and, first of all, the reconsideration of strategy. Illegal migration should be fought not by means of “raids” against foreigners in the Ukrainian territory, but through implementation of governmental well-grounded visa policy and ensuring high security level at the state border.
Nevertheless, permanent political changes and officials’ rotation, which started in 2004, left this problem outside the scope of government operation. A new state program document stipulating not violent struggle, but reasonable opposition to illegal migration, has never been developed. Profiting from the fact, the Ministry of Internal Affairs has been implementing most rigid measures in fighting illegal migration, using old methods, developed and approved in the 90-ies without any consideration for the significant changes in immigration situation. We can say that in fact the militia department unofficially prorogated the term of validity of the “Program of counteracting unlawful migration” with its obsolete goals and methods.
As of today, the law-enforcement entities face a peculiar situation: their long-term operation aimed at returning illegal migrants to the places of their permanent residence brought anticipated results, and the number of infringing foreigners from the so-called countries of “risk migration” in Ukrainian territory decreased significantly. On the other hand, the criterion, used for assessing the efficiency of militia units’ operation, i.e. comparison of last year’s indicators with respective indicators for the current year, is quite dogmatic and implacable for internal affairs agencies. That’s why an absolutely natural tendency, i.e. the decrease in the number of exposed illegal migrants in the regions is regarded among MFA leadership not as a success, but as a total failure in militia operation. Despite numerous objections from the first persons in Ukrainian militia claiming that “percentage-mania” is no longer decisive factor in their operation, accountability traditions and criteria for evaluating professional efficiency of the MIA departments’ heads in the oblast’s remain unchanged, i.e. the indicators (figures) reflecting the law-enforcement activity, including the exposure of illegal migrants, cannot go down substantially. This contrary provision can be found in numerous instructions and official letters of the Ministry of Internal Affairs of Ukraine.
Excerpt from the instructions of the MIA of Ukraine №10841 of June 18, 2010 “On faults in professional operation aimed at counteracting illegal migration”, sent to the MIA departments’ heads in oblast’s:
“ Enhanced fight against illegal migration is recognized as one of the priorities in the Ministry of Internal Affairs’ operation for 2010 by the decision of MIA Board of April 23, 2010; nevertheless, the analysis of the MIA field service operations shows decrease in this area.
As compared to the last year, the number of exposed illegal migrants reduced by 8%; the number of persons expelled from the country both voluntarily and forcibly also decreased. The activity aimed at exposing illegal migrants in (list of oblast’s follows) also slackened.
The analysis of illegal migrants expulsion within 5 months’ period shows that the number of illegal migrants drawn out of the country reduced as opposed to the last year… This activity is most poorly organized in (list of oblast’s follows), where not a single foreigner has been compulsory expelled, while 10 persons were expelled for the same period last year. In (list of oblast’s follows) the number of expelled persons decreased by (quantitative data, compared to 2009 indicators follow).
All these premises taken into account, the status of opposition to illegal migration should be thoroughly analyzed and measures for improvement in this priority area should be taken.
Let it be known that the heads of the subordinate departments are personally responsible for counteracting illegal migration. The officials, who fail to undertake the required steps, will be held accountable at the meeting summarizing the outcomes of this work”.
The open pressure of MIA leadership on territorial internal affairs’ departments led to the situation when law-enforcement personnel, due to scarcity of illegal migrants from abroad, focused on CIS citizens. To reach the indicators required by the officials and earn merit with the superiors for their efficient operation, the militiamen are actually coerced to apply most rigid, and sometimes unlawful and provocative measures in their dealings with this category of foreign citizens. Minor and inadvertent breach of rules of registration, travel or residence in Ukraine is immediately classified as serious violation of the law which results in compulsory registration of a foreigner as illegal migrant, followed by his/her deportation from the country.
From an interview with A., citizen of Armenia:
“I came to Ukraine in July 2010 to visit my nephew. He has been residing in Kiev for a long period of time and has a residence permit. I intended to stay for a month, then go together [with him] to Crimea for vacation, and then return to Armenia. My nephew is a very sociable man; he has a lot of friends and acquaintances among Armenian diaspora in Kiev. On July 20 we went to visit a friend of his, Sevan, also an Armenian; he has obtained Ukrainian passport by now and has been living in Kiev since 1988, after his demobilization from the Army. He owns a small barbecue (“shashlyk”) restaurant by the highway, and that’s where we went. After the introductions everyone took to making shashlyks for dinner. Sevan as a host started to lay the table, while I stayed near brazier to oversee the shashlyk.
It was then that three militiamen approached me. They were in plain clothes but showed us some documents. My nephew said they were militia IDs. They checked my passport and it was OK. But after that the militiamen asked me whether I had Ukrainian work permit. I answered I didn’t have or need one, as I came here not to work but, on the contrary, to have some rest. Then the militiamen asked why I was working, namely selling shashlyks without work permit. First I assumed they were joking but they took away my passport and told me to get into their car. They totally disregarded our attempts to explain that I was not selling anything but we were just having a friendly party. Militiamen also took away Sevan’s Ukrainian passport and my nephew’s residence permit (allegedly, for the check-up).
After that I was taken to militia station, where they told me that after writing down a protocol they would have me deported from Ukraine as an offender, because the foreigners are not allowed to sell anything in Ukraine without permit. I was given a sheet of paper and ordered to write down that I repent that I sold shashlyks and would not violate the law again. A militiaman explained that if I consent, my punishment would be less severe. I understood there was no point in arguing, things might take even worse turn, so I began to write what I was ordered. However, eventually a major entered the room, returned me my national passport and told me I was free to go. When I left the precinct, my nephew told me that he had contacted peopled he knew in militia, who had helped us; if it were not for their help I would have been deported from Ukraine”
From the interview with ex- district militia inspector retired in 2010:
“The ”illegal migrants” indicator was virtually squeezed from us. The investigation officers practically are not involved in this activity; the whole burden is shouldered by the district inspectors and passport offices. The big fuss starts when an operation, e.g. “Migrant” or “Market” is announced – every day there are meetings and reporting, but what can we report? No one takes into account the fact that we live in a rural area, where foreigners do not have any business whatsoever. If a Russian citizen comes to my rural area to visit family and forgets to register, I neither warn nor punish him. I have to wait for an operation or campaign, and then I’ll have data for the report. For passport office staff it’s easier, as the foreigners come to them on their own. The head of an office would look for any infringement of passport regime – expired registration date, or unclear stamp – and, hey presto, a foreigner can be classified as illegal”.
Obviously, need to comply with the MIA requirements referring to exposure of illegal migrants in quantities at least not smaller than in the past year, resulted in respective statistical data – the number of illegal migrants detained in Ukraine does not significantly change from one year to another. This statistics, in its turn, is regarded by MIA officials as an indicator of further aggravation of illegal migration situation and increase of the threat to the national security caused by it; hence, the alleged need to use even more severe retaliation measures. Struggle against illegal migration, or, rather, struggle for better migration-related statistics goes on, gaining momentum every year. The most logical question – why the hard battle against illegal migration, started in 1996, in 15 years never brought desired outcomes or led to the decrease in the number of illegal migrants in Ukraine – is totally ignored by MIA officials.
Clearly, with such approach in place, the engine of struggle against illegal migration, once started by the authorities, is not easy to stop. It requires not only the changes in normative/legal acts and reporting system, but also a switch in the minds of personnel. Besides, the public opinion, molded by the mass media promoting stereotyped image of an “enemy alien”, requires from law-enforcement entities regular reporting on their decisive struggle against illegal migration and on the obtained tangible results, and if these results are lacking – due to objective reasons beyond militia control – disseminating in society the feeling of security achieved due to their allegedly efficient operation in this area.
To justify permanent struggle against illegal migration usually two arguments are put forward: 1) Ukraine is threatened by the “ethnic expansion”, which can affect the ethnic structure of the country, dilute Ukrainian national identity and destroy Ukrainian culture as a whole; 2) – the foreigners enhance criminality level and spread contagious diseases not typical for Ukraine.
Thus the instructions, sent to militia departments on “Actions of the internal affairs officials in regards to exposing and registering illegal migrants in the Ukrainian territory”, devised by Dnipropetrovsk State University of Internal Affairs and State Department for Citizenship, Immigration and Registration of Physical Persons under MIA of Ukraine, read as follows:
“The analysis of migration processes of the last decade shows that the problem of illegal migration becomes more and more crucial… In 2008 law-enforcement troops detained about 13.6 thousand illegal migrants, which is 11% more as compared with the same period of the past year. Driven by the ideas of better life migrants from the “third world” countries or from overpopulated regions of our planet are trying to get into Ukraine… In their majority they are uneducated people of low professional qualifications, prostitutes, former criminals or persons trying to avoid legal punishment in their country; many of them carry hazardous contagious diseases.
Migrants presently staying in Ukraine are mainly natives of African and Asian regions; naturally, they have different mentality, culture, religion and perception of the world. Communities and ethnic groups on purpose or inadvertently infringe on traditional life style of the local people, significantly affecting the development of inter-national relations and ethno-political situation as a whole. Besides, outrageous and cynical infringements or even crimes perpetrated by the migrants, effectively discredits them in the eyes of Ukrainian public. Only in 2008 …116 felonies, perpetrated by illegal migrants have been uncovered in Ukraine.
Hence, struggle against illegal migration in Ukraine becomes more and more serious problem…”
Leaving aside openly xenophobic presentation of facts, we can critically revise two statements offered by the instructions: i.e. “migrants are mainly natives of African and Asian regions” and “migrants perpetrating outrageous and cynical crimes”.
According to the data published by the aforementioned Department for Citizenship, Immigration and Registration of physical Persons under MIA of Ukraine, militiamen expelled from Ukraine 7 thousand 847 illegal migrants over the 6-months period of 2010. The figure is rather impressive. But who were those expelled? 88% of the general number of the expelled aliens was constituted by CIS citizens, including 40% of Russian citizens (the highest figure) and citizens of Belarus and Moldova. The natives of South-Eastern and Central Asia and Africa constituted barely 6.7% of the expelled migrants. The picture is quite similar once one analyzes the violations of Ukrainian Law committed by the foreigners. 80% of all the foreigners, called to administrative account for the violation of the rules of stay in Ukraine under the article 203 of Administrative Code of Ukraine are CIS citizens, including 35% constituted by citizens of Russia, Belarus and Moldova.
Analyzing the statistics reflecting the origins of infringing aliens one can arrive to logical conclusions: loud statements as regards the threat to Ukrainian ethnos, created by illegal migrants, are unambiguous lies; it turns out, the migrants, in their majority, are not some people with “different mentality, culture, religion and perception of the world”, but represent nations with whom we co-existed very closely since times immemorial. Besides, the quoted statistics clearly testifies to the fact that the main MIA offensive in counteracting illegal migration is aimed against Russians, Belarusians and Moldovans and, by no means, against the nationals of “risky migration” countries.
No characteristics of immigration situation aggravation can be found in Ukraine, e.g. setting up of ethnic blocs and districts; confrontation on the religious grounds, essential for both parties; organization of mass immigrants’ manifestations or protests with the goals of obtaining social benefits. Illegal migrants are practically unnoticeable in the job market, their presence does not affect the state governance system, and cannot be regarded as destabilizing factor in political or economic situation in Ukraine.
The aforementioned instructions/recommendations also claim that over the year 2008 116 crimes were committed by illegal migrants in Ukraine. However, there is no mention of the fact that this figure accounts for only 0.03% of the total number of the registered crimes (384 424) and 0, 04% of the total number of crimes under investigation (295 918) for the year 2008. As to the hazard of spreading non-typical contagious diseases – no official data confirming this allegation have ever been published in Ukraine.
Therefore, a question arises, as to whether the scope of the real and not illusory, ”mass illegal migration from the third world natives”, invented by militiamen, is in fact that significant for Ukraine ? Isn’t its threat to Ukrainian society just a myth? Does the presence of several thousands of Russian citizens with the dubious status of “illegal migrants”, granted to them by authorities, rally endanger our national security, national identity or culture?
And the principal argument – are rigid measures, used by militia today under the pretext of counteracting illegal migration, adequate or justified; can they not be classified as the persecution of foreigners? The related statistics is most tell-tale – over the 6 months of 2010 the internal affairs entities have registered 42 789 foreign nationals; over the same period of time 782 foreigners have been fined administratively under the article 203 of Administrative Code of Ukraine. Therefore 74, 3% of all foreign citizens who entered Ukraine were penalized administratively on the motion of internal affairs entities. The statistics gives the impression that foreign citizens and stateless persons come to Ukraine not for sightseeing or visiting relatives, but exclusively to commit violations against Ukrainian laws.
No doubt, it’s high time for changes; Ukraine must get back on chosen and declared track of building up an appropriate national regime for the foreigners in the country, ensuring real respect of every person’s freedoms and rights regardless of his/her citizenship or country of origin. These changes, however, are out of question without relevant amendments to the legislation, as the current normative and legal basis used by MIA in counteracting illegal migration, is imperfect and obsolete. In particular, the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, the Cabinet of Ministers’ of Ukraine Resolution “On the Rules for Foreigners and Stateless Persons coming to Ukraine, leaving Ukraine or passing in transit through its territory”, as well as some articles of the Administrative Code of Ukraine are subject to severe criticism. The deficiency of certain provisions in these documents not only causes collisions between international and internal normative acts, but also lays foundations for militia to set up a whole system of infringement of foreigners’ rights and freedoms.
First of all, we refer to the principles of punishment for the violation of the rules of stay, committed by foreigners. Under the generally accepted legal norms, the punishment for an infringement should correspond to the seriousness of the violation and social threat represented by it. The current Ukrainian body of normative documents does not provide for the punishment of a foreigner compatible with the infringement, first of all, due to the fact that the law stipulates a number of coercive measures and penalties, which can be imposed on a migrant for one and the same offense.
Thus, a foreign tourist, detained by militia in the process of selling something in a place not assigned for it, first pays the fine established by the court for the violation of the article 160 of the Administrative Code of Ukraine. After that, in accordance with article 31 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” and clauses 38 and 39 of the “Rules for Foreigners and Stateless Persons coming to Ukraine, leaving Ukraine or passing in transit through its territory”, (approved by the Cabinet of Ministers’ of Ukraine Resolution No 1074-95), duration of his/her stay in Ukraine is shortened for the actions incompatible with the officially declared objective of a visit (i.e. commercial activity). Then, article 32 of the aforementioned law, which stipulates that a foreigner guilty of administrative violation can be deported from the country after paying the established penalty, is applied to the same foreigner. So, the deportation is used by militia as an additional penitentiary measure, despite the fact that the migrant already had been penalized by the state for the committed infringement. But that is not the end of it – alongside with deportation order, internal affairs body has a right to ban a foreigner from entering Ukraine for the term from 6 months to 5 years. Consequently, a minor administrative offense, committed by a foreigner, leads to a number of various punishments – a fine, shortening of stay in Ukraine, deportation from the country and prohibition to enter its territory; three negative stamps are put into his/her national passport – shortening the term of stay, deportation, banning from new entry to Ukraine. And even then the foreigner’s tribulations are not over, as the state foresees another penal measure: article 25 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” and clause 17 of the “Rules for Foreigners and Stateless Persons coming to Ukraine, leaving Ukraine or passing in transit through its territory” underline that foreigner cannot enter Ukraine, if a fact of his/her infringement of the law during former stay is established. This provision obviously violates the principle of unacceptability of double liability for the same offense (i.e. combining two or more types of legal liability for the same offense).
In August 2010 about 24 thousand Hasidic Jews came to Uman’ (Cherkassy obalst’) on a pilgrimage to celebrate a religious holiday. According to information published on the Ukrainian MIA Department site for Cherkassy oblast, ’ a common conflict arose between an Israeli pilgrim and local residents. The essence of the conflict was that he “…staying on the 6th floor of the house No 46, Pushkin street, performed hooligan and insulting actions against the house residents, taking their pictures on his cell phone. He ignored the reprimands aimed at stopping his hooliganism.” The staff of the Uman’ city department compiled an administrative protocol in compliance with article 173 of the Administrative Code of Ukraine, and Uman’ circuit court ruled that the Israeli offender had to pay fine in the amount of 51 UAH. Later, however, the internal affairs authority decided to shorten the pilgrim’s stay in Ukraine and documents on his deportation from Ukraine were filed with further prohibition to enter Ukrainian territory. The fact that for the Hassidic Jews pilgrimage to Uman is as important as Easter visit to a church for the Orthodox Christians was simply ignored in this cruel decision incompatible with the committed offense
The provisions concerning the procedure for shortening the duration of foreigners’ stay in Ukraine, their expulsion and defining the term, for which they cannot re-enter Ukraine, are most unclear and contrary. As of today, the legitimacy of these procedures from the legal standpoint is most dubious.
First of all, the shortening of foreigners’ stay in Ukraine, expulsion and prohibition to re-enter Ukraine as forms of punishment are not stipulated either in the Criminal Code of Ukraine or in the Administrative Code of Ukraine. Article 24 of the Administrative Code of Ukraine (types of administrative damages) reads that a foreigner can be expelled from Ukraine “for the commitment of administrative offense, seriously violating public law and order”; at the same time, however, articles 24 and 25 of the Code do not enumerate expulsion or cutting down the term of stay in Ukraine among either principal or additional administrative types of punishment. Besides, the Administrative Code of Ukraine, admitting foreigner’s expulsion from the country for administrative offense committed by him/her, at the same time does not contain a single article, non-compliance with which is punished by deportation from Ukraine.
It will be wrong to assume that the Administrative Code of Ukraine envisages no punishment at all for the foreigners staying in the country illegally. Article 203 of the Administrative Code of Ukraine ( violation by foreigners and stateless persons of the rules of stay in Ukraine or transit passage through its territory) establishes liability of non-Ukrainian citizens for residing in Ukraine without required documents or on false papers, employment without permit, violation of the established order of movement and change of place of residence in Ukraine, and for refusal to leave its territory after the expiration of granted stay. Defining the characteristics of a foreigner’s illegal status, the said article stipulates a specific punishment, i.e. fine. Cutting down the foreigners’ stay in Ukraine or their expulsion are not addressed by article 203 of the Administrative Code of Ukraine at all.
Therefore if we, after all, classify the foreigner’s deportation procedure as an administrative punishment (as this procedure is mentioned in the Administrative Code of Ukraine), then the expulsion of a foreigner after he/she has been called to account for administrative violation under article 203 of the Administrative Code of Ukraine can be regarded as a gross violation of the article 61 of the Constitution of Ukraine (no one can be held accountable twice for the same offense).
Another negative feature of the Ukrainian Law on legal status of the foreigners is the fact that it gives grounds to hold foreigners and stateless persons liable for the infringements they did not commit. Oddly enough, personal and possibly biased opinion of an official as regards any foreigner can become a reason for the restriction of the latter’s rights and freedoms. Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, and clause 47 of the “Rules for Foreigners and Stateless Persons coming to Ukraine, leaving Ukraine or passing in transit through its territory”, authorize militiamen to draw foreigners out from Ukraine by force if “there are solid grounds to assume that they will try to evade expulsion”. This language is a complete legal nonsense, as it provides for use of force and penal measures not for the unlawful actions but for the potential intentions of performing such action, while article 62 of the Constitution of Ukraine reads that conviction cannot be based on assumptions.
It is also noteworthy that the normative acts in question do not clarify, what grounds can be considered “well justified” in figuring out the foreigner’s future intentions. Other terms and categories are not explained either. And it is this lack of clarity in the language that gives the law enforcement bodies a free hand. For example, interpreting part two of article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, the internal affairs entities can decide upon foreigner’s expulsion from Ukraine if his/her actions “grossly violate the law on the status of foreigners and stateless person, or if it is mandatory for the protection of legal interests of Ukrainian citizens”. Meanwhile, no legislation supplies a list of these gross violations, so that the degree of grossness is a subjective criterion, defined by a militia official when making a decision. The concept of “legal interest” is totally moot and does not bear any legally substantial characteristic, hence, its random interpretation, not for the immigrant’s benefit in the majority of cases.
Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, stipulates the possibility of detainment and forced expulsion of a foreigner from Ukraine exclusively on the basis of an administrative court ruling. In practical operation the internal affairs entities at the court hearing file a motion for immediate serving of the forced expulsion ruling, and the court usually complies. As a result, the foreigner is denied his/her right to appeal the court ruling.
Another significant factor contributing to the foreigners’ and stateless persons’s rights violations is the practice when disputes between foreigners and state are resolved not by the courts, but by internal affairs agencies. While the authority of passing decision on imposing a fine for the violation of the rules of stay in Ukraine belongs exclusively to the court, (article 203 of the Administrative Code of Ukraine), the decision on his/her expulsion and banning him/her from entering Ukraine for a given term (up to 5 years), is made by the head of internal affairs department. And it happens despite the fact that deportation, cancellation of registration and prohibition to enter the country are much more serious punishments than fines, causing more significant material and moral damages for the foreigner in question.
Granting militia the authority of deciding upon the type of punishment and coercive measures combined with the constant MIA of Ukraine requirements to enhance the quantitative indicators in counteracting illegal migration lead to disproportionate castigation of the foreigners – for the minor infringement most grave punishment, i.e. deportation from Ukraine, is applied.
From the interview with the citizen of Russia K.:
“I was born in Ukraine and went to Russia in early 8-ies for the “Northern earnings”. I stayed there after the collapse of the Soviet Union, planning to earn my retirement there. Eventually I brought my family to Russia too. Nevertheless, I visited Ukraine virtually every summer, for my vacation. This spring I came, as usual, and stayed with my wife’s family. I planned to go back to Russia in July, but, because of the turn of events, I had to stay for another month. When I was buying return tickets, militiamen approached me and asked to see my passport. Later I understood that they set up an ambush and noticed me on overhearing that I asked for a ticket to Russian Federation. I gave them my Russian passport for check up and they said I was staying in Ukraine illegally, as the term of my 3-months’ registration, shown on the entry stamp, has expired. I really was not aware of the fact that the stamp they put into my passport at the border control, was valid for three months only, because I planned to leave earlier anyway. I apologized to the guys, drew their attention to the fact that I overstayed my term by 5 days only, explained that I forgot to renew it and asked them to let me go. They, however, took my passport away and brought me to the militia office. There they compiled a protocol, ordered me to pay fine and bring the receipt back. When I returned with the receipt a militia official advised me that a deportation stamp would be put into my passport. I got very anxious and begged them not to do that, as I stayed unregistered only for 5 days and have already paid the fine. This militiaman, however, said it didn’t matter, and he couldn’t undo it, but considering that I was a native Ukrainian, the punishment would be minimal. He calmed me down explaining that the deportation would be just a formality. He asked me about the date on my tickets to Russia, i.e. when I planned to leave and when I intended to return to Ukraine. Then he told me that, as we were compatriots, no one would escort me anywhere, but I was to leave on my own within 30 days and not come back for 6 months. All that would be shown on respective stamps in my Russian passport. The militia official told me I lost nothing, as anyway I would be leaving in a couple of weeks to come back only next summer, when the 6 months of banning would be over. He even prompted me to exchange my passport once in Russia, to spill the ink on the stamps or simply to tell that I lost it. Then no traces of my deportation would remain. I hung around militia office for a couple of hours and received back my passport, in fact with two stamps showing that I was under deportation.
When I told my friend about it, he was very upset, said that it was illegal and I only had to pay fine for such infringement, so he suggested I appeal. I didn’t want to, because it would take a lot of time, and one couldn’t be certain as to the outcomes, while I had to go, and probably the best way would be to follow the militiaman’s advice. But altogether it was most humiliating and upsetting to be treated like that in my own Motherland”.
The internal affairs’ practice of cutting down the allowed term of stay for the foreigners deserves special attention. This measure of punishment is very specific, in a sense that it cannot be applied to the illegal migrants, as these latter are not registered at all, so the term of their stay cannot be shortened. Therefore the cutting down of registration term is not a state instrument of counteracting illegal migration, but the means of punishing foreign nationals and stateless persons legally staying in the territory of Ukraine. Taking into consideration the fact that this category, under article 26 of the Constitution of Ukraine, is guaranteed enhanced protection of their rights and freedoms, the restrictive decisions, passed by militia and not by the court as regards their right to reside in Ukraine, are inexplicable and faulty.
Under article 31 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, the granted term of stay in Ukraine should be cut down for law infringement not entailing administrative or criminal liability. In real life, however, law enforcement entities use this means of punishment just for this type of infringement (administrative offense).
From the interview with the citizen of Azerbaijan M :
“I came to Ukraine on a friend’s invitation and was selling watermelons and fruit. My compatriots advised me how to establish myself [in Ukraine] – I obtained the permit for the stall and other papers, but militia would always find fault. Three men, one in uniform, two plain-clothed approached me. They checked my passport for registration, permit to sell watermelons – everything looked OK. Then they said my watermelons were too close to the road and it was the violation of the law. They did not return my passport, but told me to come and fetch it in the evening. When I arrived, the militiamen gave me passport back, showed the stamp in it and explained that I had to return to Azerbaijan by the end of the week. Otherwise I would be detained, deported and forbidden to ever come to Ukraine. I was very upset, because I knew that the stamp in the passport causes all sorts of trouble, once you cross the Ukrainian border. Then a protocol was written, but the fine was small, next to nothing, as compared to the stamp which marred my passport”.
Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” and clause 42 of the “Rules for Foreigners and Stateless Persons coming to Ukraine, leaving Ukraine or passing in transit through its territory” authorizes internal affairs bodies to define the time period during which the foreigners are prohibited from entering Ukraine – from 6 months to 5 years. The normative and legal documents, however, provide no criteria for establishing this term, so that it is decided upon by militia official at his discretion, based on his personal attitude to a foreign national, his country of origin etc.
It is noteworthy that the decision prohibiting a foreigner entrance to Ukraine is not a compulsory component of the deportation procedure. Article 32 of the aforementioned law reads: “ On the decision of internal affairs body the deportation of a foreigner or stateless person from Ukraine can be accompanied by the prohibition of entrance to Ukraine for the term up to 5 years”, thus strictly separating two procedures, i.e. expulsion from Ukraine and prohibition of entering the country in the future. Nevertheless, the senior officials in the MIA State Department of Citizenship, Immigration and Registration of Physical Persons, insist on quite an opposite procedure requiring combining each deportation of a foreign national with prohibition of further entry to Ukraine. Thus, out of the general number of illegal migrants expulsed from Ukraine in the first 6 months of 2010, i.e. 7 thousand 847 individuals, 7 thousand 735 foreigners (98, 6 %) were prohibited from ever entering Ukraine again.
Summing up, we can argue that if militia is authorized by the state to combine two different functions, i.e. of penitentiary agency in charge of exposing and detaining infringing foreigners, and of law enforcement body ultimately defining the guilt of the detained and the means of punishment, the abuses of power are unavoidable.
Ukraine’s intentions of integrating into the world community should be accompanied by larger openness of the job market for the foreign labor force; nevertheless, the national regime of labor relations does not apply to all the foreigners in Ukraine. Article 26 of the Constitution of Ukraine grants the foreigners legally staying in the country equal rights with Ukrainian citizens, including those related to work and employment. In everyday life, however, that equality applies only to the foreigners with the immigration permit, documents confirming their right to reside in Ukraine permanently and refugees (the asylum seekers are not included into this category). The policy of protecting the local labor force, implemented by our state is unjustifiably rigid and significantly complicates the job search for the foreigners temporarily staying in Ukraine or even makes it completely impossible. As a result, the foreign nationals work illegally.
The Cabinet of Ministers’ of Ukraine Resolution №322 of April 08, 2009 “On the Procedure of issuing, renewing and cancelling the permits to use labor force of foreigners and stateless persons” is unambiguously aimed not at the implementation of constitutional principles of equal rights for foreigners and Ukrainian citizens, but at the enhancing of control over the employers and working migrants.
According to the aforementioned Resolution, a strictly civil issue, i.e. granting a work permit to a foreigner, for unclear reasons, is delegated to the law enforcement entities – militia, Security Service, Border control and Tax inspection. The list of documents, needed for the work permit, has been expended, the fee for the permit has been raised, and employer’s liability for his foreign employee has been increased. The job placement procedure is now more complicated, leading to further red-tape. It is inconvenient both for the foreigner and for the legal entity dealing with his/her placement.
Typically for the Ukrainian Law in force, the Resolution envisages the most severe punishment for any violation of labor contract, committed by a foreigner. The use of a foreigner’s labor, not stipulated by the contract, leads to the annulment of the contract and expulsion of a foreigner, even if the breach of contract was committed by his employer. The early termination of the labor contract can be another reason for cancellation of work permit and deportation of a foreign worker; the Resolution, however, ignores the fact that the labor relations can be terminated by the employer, either on his initiative or due to his failure to comply with the contract provisions.
Another noteworthy issue is lack of clear regulations concerning foreigners’ travel in the territory of Ukraine and change of their place of residence in the country. Article 3 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” defines, that the foreigners temporarily staying in Ukraine, when changing their place of residence, must inform internal affairs bodies, with which their passports are registered; but the procedure for submitting this information, however, is not specified in any normative acts. Lack of regulatory provisions on simple issues, i.e. after what term of absence from the registered address (a day, a week, a month) a foreigner is considered to have moved to another place of residence; should he/she inform the internal affairs bodies orally or in written form on his/her change of address – often is used my militia to hold the foreigners administratively liable.
Analysis of the MIA of Ukraine normative basis gives grounds to contend that as of today militia does not have any substantial, clearly spelled out departmental regulations on dealing with foreigners, and first of all, on counteracting illegal migration. Provisions of some MIA orders and instructions openly violate foreign nationals’ rights and freedoms, are contrary to the Constitution of Ukraine, and, oddly enough, to the Law of Ukraine “On Militia”.
The MIA of Ukraine Order №829 of July 31, 2003 “On Approval of the main areas of professional operation of structural units within MIA of Ukraine and respective units of CDMIA, DMIA, internal troops of MIA of Ukraine in counteracting illegal migration” is rather characteristic in this context as the ultimate militia’s attempt to regulate the process of counteracting illegal migration.
Ignoring the provisions of the Law of Ukraine “On Militia”, the article 11 of which strictly defines the categories of persons, to whom fingerprinting can be applied by militiamen (“persons detained on suspicion of felony or vagrancy, persons in custody, convicted of crime, or under administrative arrest”), the paragraph 15 of the said Order requires that internal affairs expert service fingerprints the foreigners registered by militia as illegal migrants, while IT subdivisions are required to set up and maintain the respective database “Migrant”.
Similar violation of the Law of Ukraine “On Militia”, i.e. the requirement of fingerprinting of illegal migrants, can be found in the provisions of the General Order of the MIA and State Committee on Security of the State Border of Ukraine №723/435 of July 20, 2002 “On Approval of the Instruction on functioning of registration system in the MIA and state border security bodies in regards individuals detained for the breach of the Laws of Ukraine on state border and on legal status of the foreigners”.
The MIA of Ukraine Order №829 of July 31, 2003 due to the obsolete content of its provisions significantly contributes to the violation of the foreign nationals’ rights, committed by militiamen in counteracting illegal migration. As stated above, illegal migration in Ukraine long ago lost its spontaneous nature and turned into a profitable business, well-organized people smuggling, carried out by criminal groups with clear-cut structure, rigid hierarchy, equipped with high-tech machinery, connected to corrupted officials. At the present stage the militia job should be focused at putting an end to these groups’ operation, uncovering the organizers of illegal migration channels and illegal migrants’ smugglers. It is feasible only through carrying out the high-quality criminal investigations involving efficient operation of undercover agents and militia’s technical resources.
The MIA of Ukraine, however, incessantly stressing the threat represented by illegal migration to Ukrainian society, issued an Order №829-2003, delegating the main functions in organizing and coordinating the branch services’ operation in counteracting illegal migration not to MIA of Ukraine Chief Directorate for fighting organized crime or its territorial departments in oblast’s, but to the departments of citizenship, immigration and registration of physical persons. It is necessary to understand that the passport offices, few in number and not legally entitled to go in for criminal investigation, cannot organize the functioning of field subdivisions, whose task is to fight organized and economic crimes or CID. This distorted organizational structure of the system of counteracting illegal migration results in a significant number of cases involving the violation of foreigners’ rights. Quite understandable incapability of the staff working in the Department of Citizenship, Immigration and Registration of Physical Persons to organize efficient field operations, makes the isolated immigrants from CIS at the Ukrainian markets, main target for militia operations instead of organized criminal gangs
The lack of clearly defined procedure for expulsion and cutting down the duration of stay should be also mentioned here. Not a single MIA normative document contains respective provisions; consequently, the mechanism for the protection of immigrants’ rights and freedoms at the time of their expulsion or shortening of the term of their stay is not defined either. Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” provides for court appeal, which a foreigner can file if he/she is subjected to the deportation procedure by the internal affairs bodies; this provision, however, as well as many others, remains a mere declaration. The most important issues, - e.g. how the foreigner’s rights are explained to him/her when he/she is served the deportation papers, how he/she becomes aware of deportation legal consequences and ways to appeal, whether he/she is offered a professional assistance or can use an interpreter – are not reflected in any of MIA normative acts.
In general, militia normative acts, declaring the possibility of rights’ and freedoms’ protection for the foreigners, provide no mechanism for this protection. Thus, item 18 of the MIA of Ukraine Order No 1456 of December 1, 2003 ”On Approval of Instruction concerning procedure of renewal of registration in Ukraine for foreign nationals and stateless persons” envisages the possibility for a foreigner to appeal the decision of internal affairs body if he/she was denied registration; however, the Order does not explain, how exactly the foreigner becomes aware of this provision.
The respect of rights of refugees and asylum seekers, who traditionally are regarded as the most vulnerable category of migrants, deserves special attention. According to official statistics, published on the web-site of State Committee for Nationalities and Religions (www.scnm.gov.ua) as of January 1.2010 2 thousand 334 refugees from 44 countries have been registered in Ukraine. Analysis of the dynamics in granting refugee status by Ukrainian government shows that, starting 2002 the number of foreigners, who officially have been granted protection in Ukraine remains insignificant – over the years 2002-2009 only 536 foreign nationals were recognized as refugees. 2010 was no different in that sense - only 44 individuals (as of September 1, 2010), which is 2, 8 less than in 2009, when 125 foreign nationals obtained the refugee status.
This situation can be explained by a number of factors, including deficiency of respective legal basis in Ukraine, complicated mechanisms of realization of refugees’ and asylum seekers’ rights, legal illiteracy among bureaucrats, their indifference to aliens’ hardships, and also by periodical changes in the political situation within the country. It can be argued that despite the fact that Ukraine joined the UN Convention of 1951 on the Refugees Status and related Protocol of 1967, has its own Law “On Refugees”, the rights of the foreign nationals within this category are not properly observed, which fact was stressed by many international and local experts.
It should be mentioned that the UN Convention of 1951 on the Refugees Status and the related Protocol were ratified by Ukraine as late as in 2002, after the country adopted its own legislation regulating the stay of foreigners, including refugees and asylum seekers, in the country. It is very important, however, that Ukraine joined the aforementioned Convention without any reservations; it means that under the Law of Ukraine “On International Treaties” the legal collisions between the norms of national and international law should be resolved in accordance with the international treaty provisions. In real life it is not always the case. Thus, the issue of employment is one of the most crucial for the refugees and the difficulties in its resolving cannot be explained exclusively by unemployment level in the country, language barrier or lack of documents confirming professional qualifications; they are also predetermined by certain contradictions in the law itself. The Law of Ukraine “On Employment” (article 6, paragraph 2) covers exclusively foreign nationals and stateless persons permanently residing in Ukraine. Meanwhile, the refugees, under the Law of Ukraine “On Refugees” are regarded as foreign nationals and stateless persons staying in Ukraine legally. This, prima facie, minor difference in the phrasing lead to the situation when refugees sometimes are unable of getting assistance in job search through employment centers, acquiring the status of the unemployed or receiving respective benefits.
It is noteworthy that, all these difficulties notwithstanding, the legal protection of foreigners who officially acquired the refugee status in Ukraine and have respective documents to prove it is much better than that of the asylum seekers, who remain one of the most powerless categories of foreigners. It is most significant that under the Law of Ukraine “On Foreigners and Stateless Persons”, refugees are granted equal rights with Ukrainian citizens as regards employment, education and health care, while the asylum seekers are deprived of this preferential treatment. Hence, before acquiring the refugee status (and the procedure might last for many months) the asylum seekers are practically deprived of economic and social rights, and, therefore, obliged to look for means of subsistence, sometimes, in contravention of the law in force.
The decision of Svyatoshyn raion court (city of Kiev), published in mass media, drew public attention to the problem. The ruling was passed on the basis of the materials submitted by Svyatoshyn raion militia department concerning arraignment of asylum seeker from Uzbekistan X., detained by militiamen for unsanctioned commercial activity. In its decision of February 22, 2010, the court ruled that, as regards this foreigner “decision was made on processing the documents needed for granting him the refugee status”, therefore his activity lacked both the felonious actions and corpus delicti. This event, however, can be regarded only as an example of humane and non-biased court ruling, as acting legislation of Ukraine does not clearly specify the employment opportunities for the asylum seekers.
The first paragraph of article 20 of the Law of Ukraine “On Refugees” establishes that “ an individual granted the refugee status has equal rights with Ukrainian citizens as regards freedom of movement, free choice of place of residence, free exit from Ukrainian territory, with the exception of restrictions, stipulated by the law”. In practice, however, due – once again - to deficiency of relevant Ukrainian legislation, the realization of these rights is hindered by complicated bureaucratic procedure. In Ukraine the procedure of change of place of residence by an individual is regulated by the Law ”On Freedom of movement and free choice of place of residence”, equally compulsory for Ukrainian citizens and for the foreigners legally staying in the country. Keeping in mind that the refugees fall under this category of foreigners, they should be able to change their place of residence quite easily. However, article 6 of the said Law stipulates that every individual, having changed the place of residence, must register at the new address within 10 days. He/she must submit an application in writing, his/her passport (or its equivalent) and a document confirming removal from the register. This requirement completely ignores the fact that the refugees have no passport or permit of residence in Ukraine and are, therefore, unable of complying with registration procedure. As a result, a refugee’s transfer to another place of residence in a different oblast’ is possible only by written agreement between the territorial branches of the State Committee on Nationalities and Religions and the MIA of Ukraine Department of Citizenship, Immigration and Registration of the Physical Persons at the places of actual and intended residence. This procedure takes long, and, besides, a refugee, as opposed to Ukrainian citizens, has to visit the bureaucrats of the aforementioned agencies many a time, write a lot of applications etc. Meanwhile, this problem can be easily resolved, if a foreigner in possession of a refugee’s certificate gets a temporary residence permit from a territorial branch of the MIA of Ukraine Department of Citizenship, Immigration and Registration of the Physical Persons. If appropriate amendments are introduced into the legislation, the registration procedure, as well as employment and health care for the refugees will be significantly simplified.
As to the asylum seekers, they practically cannot change their place of residence. Having submitted their request for refugee status to a territorial branch of the State Committee on Nationalities and Religions, and having registered respective certificate in an internal affairs office, they have to wait for the final decision on their application, which is to be passed by the same territorial branch. This situation can be classified as the violation of article 33 of the Constitution of Ukraine, which guarantees the freedom of movement and free choice of place of residence for anyone staying in Ukrainian territory legally.
Analysis of statistic data provided by the State Committee on Nationalities and Religions shows that starting 2002 the number of positive responses to the foreigners’ requests for refugee status still constitutes an insignificant portion (%) in the total number of applications.
In 2010 the situation did not change for the better – as of September 1, 2010, the refugee status was granted only to 5.7% of all the applicants. This statistics unambiguously proves that 1) the criteria for obtaining refugee status in Ukraine are very rigid, and 2) the legal competence of the asylum seekers must be enhanced with the help of the government. It is also noteworthy that over the years 2009-2010 the situation was aggravated by “governmental wars”, waged by the politicians around the setting up of the State Migration Service. It started, and then stopped its operation, and, finally by Cabinet of Minister’s Resolution No 559 of July 7, 2010, it was abolished completely. As a result, over the years 2009-2010 considerable number of the asylum seekers could not receive the refugee’s certificate or approach the court to appeal a negative decision.
As only an insignificant number of individuals applying for refugee status are legalized, another serious question arises, i.e what happens to foreigners seeking protection in Ukraine but not entitled to the refugee status by whatever reason stipulated by the law. The official position, in particular, that of internal affairs agencies, is rigid and implacable – these foreign nationals shall get back to their former country of residence, or, at least, just leave Ukraine. However this attitude is not only inhuman, but also unlawful, as Ukraine, joining the UN Convention against torture and other types of cruel, unusual and humiliating treatment and punishment, in accordance with article 3 of the Convention, has undertaken the obligation not to return any person to his/her country of residence if he/she faces the threat of torture in that country.
Therefore Ukraine stands in urgent need of legislative support for additional protection of the aliens, who, on the one hand, are not entitled to the refugee status in our country, and, on the other, cannot be sent back to their country of origin under provisions of the Convention against torture. This problem could be resolved either by adopting a relevant normative-legal act (similar to Cabinet of Ministers’ of Ukraine Resolution No 674 of June 26, 1996 “On Measures of assistance to Individuals who had to leave the places of their permanent residence in the Autonomous Republic of Abkhazia (Georgia) and arrived in Ukraine”), or by amending the Law of Ukraine “On Refugees”.
The fact that over 2010 the law enforcement bodies despite all the warnings, made by human rights activists concerning the illegality of their actions, persisted in the open persecution of the asylum seekers. Unfortunately, the suspicious and openly negative attitude of militiamen towards immigrants is still in place. They fail to understand the plain truth i.e. for a certain part of the foreigners in Ukraine flight from their home is not just a whim, but an attempt to save their lives and freedom. Due to the lack of legal education they still regard asylum seekers exclusively as aliens entering Ukraine for unclear reasons, thus equalizing the notions of “illegal migrant” and “asylum seeker”. Taking into account almost unlimited authority of the Ukrainian law enforcement entities in deciding the future fate of a foreigner, this biased attitude of militia staff certainly leads to the violation of rights and freedoms of asylum seekers.
According to “Ukrainian Council for Refugees” and NGO “Social Action” (“No boundaries” project), in 2010 some cases of detaining Uzbek citizens who came to Ukraine to seek asylum as they were persecuted in their country of origin, by militia were registered. Thus, in June-July 2010 the militiamen in Kiev oblast’ detained the asylum seekers from the Republic of Uzbekistan Umid Khamroyev, Kosim Dadakhanov, Utkir Akramov and Shodilbek Soibzhonov. The cause for detention was an action brought against them by Uzbek officials, with the goal of extraditing them to Uzbekistan. It is indicative that all the said asylum seekers were under official retrieval on charges of the Uzbekistan Criminal Code, usually brought against the members of political opposition (“encroachment on constitutional system of the Republic of Uzbekistan”, “devising and disseminating materials containing threats to the public order and social system”). These asylum seekers never concealed the fact of their persecution by the Uzbek state- that’s why they came to Ukraine for protection. On July 26, 2010 the European Court prohibited Ukraine from extraditing the four detainees to Uzbekistan; only this intervention gives hope that Ukraine finally will pass appropriate decision on Uzbek asylum seekers petitions, and before the decision is made they would not be returned to the Republic of Uzbekistan.
Mass tortures of people in Uzbekistan are common knowledge, as well as the fact the European Court on Human Rights many a time classified the extradition of asylum seekers to Uzbekistan as the violation of article 3 (“Prohibition of tortures”) of the European Convention on Protection of Human Rights and Fundamental Freedoms. This fact, doubtless, is known to militia too, as in 2009 human rights’ organizations carried out a number of manifestations against extradition of Uzbek asylum seekers to that country and conducted an awareness-raising campaign among law enforcement entities revealing unacceptability of their actions. However, till present day, negotiations with Uzbek officials concerning retrieval of their opponents, remains priority for the Ukrainian militia, which is not interested in consistent adherence to the international legal norms.
The MIA of Ukraine senior officials and Department of Citizenship, Immigration and Registration of the Physical Persons do not pay due attention to the training of militia personnel on treatment of refugees and asylum seekers; respective normative acts or instructions are neither adopted nor sent to the territorial branches by MIA. Consequently, the low level of legal culture among internal affairs personnel in many cases becomes the cause of unjustified detentions of the forced immigrants, including those who have valid permits of stay in Ukraine, stipulated by the law, but unfamiliar to and, therefore, unacknowledged by militia.
According to Kharkiv oblast’ charity foundation “Social Assistance Service” which is an executive partner of UNHCR for Sumy and Kharkiv oblast’s, on June 16, 2010 Moskovsky district militia inspector (Kharkiv Department of the MIA of Ukraine) detained in Kharkiv oblast’ an underage citizen of Cote-d’Ivoire Soumahoro Mouloukk Souleimane. At the time of detention the alien had on him the appeal to the administrative court, stamped as filed by the court. Soumahoro Mouloukk Souleimane intended to receive the certificate confirming his filing the petition with the Department of Migration Service for Kharkiv oblast’ on June 17, 2010 ( i.e. next working day)and have it registered the same day in Kharkiv oblast’ office of the Department of Citizenship, Immigration and Registration of the Physical Persons.
For the whole day the underage alien was kept in the district militia office, despite the fact that NGO and Charity Foundation representatives who learned about the detention more than once called Moskovksy district office explaining the reasons for lack of identifying documents to the militiaman on duty.
While staying in militia office, Soumahoro Mouloukk Souleimane was coerced into signing the protocol on administrative infringement the contents of which remained obscure to the foreigner, as he spoke practically no Ukrainian or Russian; then he was ordered to pay fine, in violation of article 24-1 of Administrative Code of Ukraine, which does not make provisions for such damages to be paid by an underage person. Besides, no interpreter to enable foreigner’s free communication was present at the writing of the protocol; Soumahoro Mouloukk Souleimane got no copies of the documents he was coerced to sign.
The cases of unjustified detention of asylum seekers are rather frequent. Kharkiv oblast’ charity foundation “Social Assistance Service” registered 18 detentions of the aliens within this category just over the period January through August of 2010, in the city of Kharkiv only. The foreigners subsequently were taken to the militia departments, despite the fact that they had permits allowing them to stay in the country as asylum seekers until the final decision on granting them refugee status is passed.
Conclusions and recommendations
The Ukrainian Government, ignoring the officially declared national legal regime for the foreigners staying in the country, in real life is constantly implementing restrictive and coercive measures to the migrants, practically neglecting other, more human and not less efficient levers of controlling the migration situation – the immigration amnesty, reasonable and mutually beneficial state policy of finding employment for the foreigners, measures aimed at alleviating their adjustment in the Ukrainian community etc.
The Ministry of Internal Affairs is a vivid example of this biased policy. The real position and public rhetoric of its leaders on the issues of dealing with foreign nationals are dramatically opposite. In 2010 the militia department did not make a single step forward in securing better protection of immigrants’ rights and freedoms, in spite of the fact that this agency should be the instigator of changes in the acting legislation, to make it more instrumental and humane. Militia retains its exclusively penitentiary role in the relations model “Militia-immigrant”. It ignores completely its consulting/assisting function in dealings with foreigners, but is most willing to perform the functions of coercion, often justifying their cruelty by alleged or fabricated concepts of security threat, caused by illegal migration. To all intents and purposes MIA counteracts this migration only perfunctorily and ineffectively.
The Militia department must cardinally revise the principles of its internal “migration policy” and promote the changes at the national level. The major prerequisites for that are as follows:
– cancellation of the MIA of Ukraine Order №829 of July 31, 2003 “ On Approval of the main areas of professional operation of structural units within MIA of Ukraine and respective units of CDMIA, DMIA, internal troops of MIA of Ukraine in counteracting illegal migration” as obsolete and inefficient. Devising new departmental normative-legal document to reorient militia operation from monitoring the stages of aliens’ stay in Ukraine to counteracting illegal transfer of foreigners to the Western Europe through Ukrainian territory. The main role in developing and implementing measures for counteracting illegal migration within MIA structure should be played not by Department of Citizenship, Immigration and Registration of the Physical Persons, but by Chief Department of Fighting Organized Crime;
– authorizing Department of Citizenship, Immigration and Registration of the Physical Persons to provide assistance and counseling to the foreigners staying in Ukraine in addition to controlling them;
– developing and adopting new departmental instructions with detailed procedure and grounds for foreigners’ expulsion from Ukraine, with a special section containing provisions for due protection of foreigners’ rights and freedoms;
– developing and approving a state normative/legal document guaranteeing respect of the asylum seekers’ rights in situations when they are unable of obtaining the refugee status legally; establishing procedure for their temporary legalization in Ukraine;
– preparing guidelines-recommendations for establishing legality of asylum seekers’ presence in Ukraine, with mandatory addendum containing exemplary documents – permits allowing foreigners to reside in Ukraine; these recommendations shall be distributed among territorial militia offices to be used in practical operation;
– entrusting the MIA of Ukraine lawyers with the task of legal assessment of Ukrainian Laws, Administrative Code of Ukraine, other normative and legal acts regulating aliens’ stay in Ukraine, as to their compliance with international law provisions, with further drafting of respective amendments to the legislation, first of all, to the Administrative Code of Ukraine and to the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”.