Amendments to migration legislation: Punish and ban, or resolve the problems?
The No Borders Project warns that the amendments to migration legislation adopted on 5 April 2011 pose the threat of greater abuse and human rights violations, while giving some hope for positive development of one important constitutional concept.
As reported, amendments were made to the Law on the Legal Status of Foreign Nationals and Stateless Persons, the Criminal Code and the Code of Administrative Offences. No Borders quote the claims made on the Verkhovna Rada website that the amendments are “to create the proper legal principles for intensifying the fight against illegal migration, improve management of the migration processes, increase legal liability for offences in this sphere, ensure the conditions for the exercising of migrants’ rights, and equal conditions for mutual trips of Ukrainian and other countries’ nationals, to activate bilateral contacts in all spheres of international relations, and increase legal liability of both Ukrainian nationals and foreigners for infringements of migration legislation”. It notes, however, that most of the changes are about increasing liability for infringements of the rules applying to foreigners’ being in Ukraine.
These are an increased number of grounds for deportation; a rise in the fines for infringements of registration time limits; an extension in the period during which a person is banned from returning to Ukraine – from 5 to 10 years. Strict punishment is envisaged for organizing and carrying out illegal transfers of people across the border.
There are particular points worthy of note, some negative, others of a positive nature.
Article 31 lists the grounds by which a foreign national’s stay in Ukraine can be shortened, with this having been considerable extended. This list now includes the following: “if [the person’s] activities on Ukrainian territory could adversely affect Ukraine’s relations with another country”. There is no explanation as to what is meant and who is authorized to draw such conclusions, which the No Borders Project warn could lead to violations of foreigners’ rights.
On the other hand, Article 32 “Prohibition of expulsion or other forms of forced return” states that “a foreign national or stateless person may not be expelled or in other ways forcibly returned to country where he could be subjected to torture, cruel, inhuman or degrading forms of treatment or punishment, or from which he could be deported or forcibly returned to countries where his life or freedom would be endangered. In this instance the foreign national or stateless person on Ukrainian territory should be provided with asylum by decision of the President of Ukraine”. As well as the fact that grounds are stipulated for prohibiting the forced repatriation of a person, in itself extremely important, this is the first legislative initiative, except for Article 26 of the Constitution, which establishes the possibility of granting specifically asylum. The Law on Refugees envisages only the granting of refugee status and does not contain a definition of the procedure for granting asylum whereas in the legislation of many countries these forms of protection for asylum seekers supplement one another.
The No Borders Project welcomes development of legislation regarding migration. It remains, however, concerned by the prohibition-based nature of the Law. “In our opinion the development of migration legislation and of well-balanced and effective migration policy in Ukraine are extremely important. However these processes should not be of a merely prohibition-based or punitive nature. There needs to be attention to ensuring practical implementation of all provisions of legislation and the equality of all before the law, this including guaranteeing foreigners observance of human rights.
The No Borders Project welcomes the introduction into migration legislation of the concept of “granting of asylum” and expresses the hope that this part of the Law will receive practical application. Several asylum seekers who are the Project’s clients have been deprived of their liberty pending just such forced repatriation to countries where they face torture, cruel, inhuman or degrading treatment. We hope that with the entry into force of this Law that our clients will be able to turn to the President seeking asylum, and that their cases will receive thorough and impartial consideration.