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05.08.2011

What to expect from the new law on refugees

   

 

The Law on Refugees and People who need additional or temporary protection came into force on 4 August 2011. Nadiya Ediyeva from the Chernihiv Public Committee for Human Rights, assesses its new features.

She says that this is undoubtedly an important step for Ukrainian society on the way to Eurointegration since the previous legislation on refugees was somewhat obsolete and ill-functioning on issues of international migration. One serious problem, for example, was the lack of other forms of protection for asylum seekers besides refugee status.  The new Law contains a number of new features regulating the procedure for providing protection and asylum to foreign nationals and stateless persons.

One important step is the norm on preserving and uniting families of immigrants. From now on members of the family of a person who has been recognized a refugee in Ukraine, or a person who requires additional protection, or has been given temporary protection in Ukraine, have the right to enter the country for the uniting of the family and be recognized as refugees or people needing additional protection, or receive temporary protection.   This means that children will automatically receive legal status together with their parents.  It does not, however, apply to children who have reached official adult age. This means that the norms of Article 1 § 24 of the Law slightly contradict Article 4 of the same Law.

There is another new feature in Article 3 § 1 which adds to the standard grounds for gaining refugee status in Ukraine (the danger of persecution on the grounds of race, religion, nationality, citizenship, membership of a particular social group or political convictions), the words “or for other reasons which are recognized by international agreements or international organizations which Ukraine is a member of, as meaning that a person may not be returned to his or her place of origin”. 

The author, however, sees the key feature of the new Law being, in addition to refugee status, the mechanism of protection for asylum seekers. If “temporary protect” applies directly to asylum seekers from neighbouring countries with joint borders, the concept of “additional protection” encompasses specifically that category of asylum seekers who do not fall under the 1951 Convention as people having grounds for receiving refugee status. Such a norm in more refined form has been used in considering asylum applications to EU countries for many years now. This is a major step for providing protection to foreign nationals and stateless persons in Ukraine which should make the work of NGOs and state bodies easier.

The author however notes the concern expressed by the UNHCR reported here.

While in general UNHCR welcomes the introduction of complementary protection in the draft legislation, the definition of complementary protection is considerably narrower than that specified in EU standards.  Notably, the Ukrainian draft legislation does not foresee the grant of complementary protection to persons who would face a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” as provided for in Art. 15(c) of the EU’s Qualification Directive (see Council Directive 2004/83/EC of 29 April 2004).   UNHCR remains concerned that persons with real international protection needs, particularly those fleeing armed conflict, will not be granted protection in Ukraine.  
The author notes that the Law also fails to regulate provision of quality and effective procedure for review and provision of refugee status or additional protection and does not provide further protection for people who did not receive a positive answer to their application for asylum. 

Nor does the Law guarantee protection from torture or ill-treatment, and is quite limited and narrow on the procedure for forced deportation.

She expresses the hope, therefore, that this Law will not be the only step towards bringing Ukrainian legislation into line with minimum international standards. 

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