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24. Rights of Immigrants

1. Normative legal regulation of immigration in 2013

The normative legal base engineering on immigration issues in Ukraine in 2013, as compared with 2012, slowed down significantly: in 2012 32 significant national and departmental regulations in this field, including seven laws of Ukraine and ten resolutions of the Cabinet of Ministers (CM) were adopted; the same for nine months in 2013 made only 9 (including three CM Resolutions). Such reduction of legislative activity and obvious unweighed and unsystematic approach to implementing certain normative documents upset the balance in immigration legislation that affected the level of protection of foreigners against possible harassment. In the context of this report, it is appropriate to give examples of unsuccessful norm-setting experiments and more successful attempts to legally improve the model relationship “immigrant-nation”.

1.1. Resolution of the Cabinet of Ministers of 13.03.2013 no. 185 “On Certain Issues of the Law of Ukraine “On Unified State Demographic Register and documents proving citizenship of Ukraine, personal identity or her/his special status”

    The distinctive feature of 2013 became the legal chaos that occurred in Ukraine while tackling such important issue for everyone as issuing passports. This state of affairs was due not so much to failures in management of migration service as irresponsibility and short-sightedness of the government working to create the Unified State Demographic Register and introduction of new samples of documents identifying a person or her/his special status. In 2013, the immigrants ran into it to the maximum degree possible.

    On 03.11.2013 the State Migration Service (SMS) issued the order no. 48 “On approval of informational and technological cards of rendering administrative services by SMS”, which defines the grounds and procedures for processing immigrants’ passport documents: temporary and permanent residence permits, identity card for stateless person traveling abroad, certificate and travel document for a refugee, identity card of a person, which requires additional protection.

    However, within a day after the entry into force of the SMS Order no. 48-2013, the government passed the Resolution of the Cabinet of Ministers of 13.03.2013 no. 185 “Some aspects of the Law of Ukraine “On Unified State Demographic Register and documents certifying the citizenship of Ukraine, identifying a person or her/his special status”, which introduced fundamentally new samples of these documents and radically changed the order of execution of some of them. Moreover, the innovations specified by the Resolution were not simultaneously described in detail in other normative legal acts, including departmental ones, which immediately led to inconsistencies and contradictions in their terms.

    Thus, the CM Resolution no 185-2013 canceled the “Procedure of processing, manufacturing and issuing a permanent residence and a temporary residence permit and technical description of the forms” (approved by CM Resolution no. 251 dated 28.03.2012); these very permits are the most common and important for every immigrant documents that, on the one hand, confirm the identity and legal status of a foreigner and, on the other hand, give her/him the possibility to freely enter Ukraine or leave its territory. In return they were supposed to make provisions and issue certificates for immigrants of the latest form, but because of the lack of necessary equipment and new forms the territorial bodies of migration service proved to be unequal to the difficulties and went on issuing to foreigners officially canceled permits. This legal irrationality took grotesque forms, because while issuing to immigrants actually invalid certificates for permanent and temporary residence the migration service personnel had to follow the rules of the null and void Resolution of the Cabinet no. 251-2012 and regulations of SMS departmental order no. 48-2013, which also had not been adapted to this coup in the legislation unexpected by migration service. It became obvious that the government implemented these normative legal innovations without prior approval by the MIA and SMS, without simultaneous adapting to changes of the entire array of orders and instructions of these authorities, without clarifying their readiness to implement these changes.

   On 06.12.2013 the validity of the scandalous CM Resolution no. 185-2013 was stopped; however, the very precedent of existence in the legislative framework of Ukraine of the normative legal act of the state, which had been in force only for three months, led to confusion in issuing passport documents and forced the SMS employees to work outside the legal framework which became a striking illustration of the presence in Ukraine of lobbying by influential business groups of their interests in the government, when the financial ambitions of certain commercial structures explicitly rise above the needs of the large groups of population, and business conflicts, rather than human rights, cause changes in legislation.

1.2. Order of the SMS of Ukraine dated 11.03.2013 no. 48 “On approval of informational and technological cards of rendering administrative services by the SMS”

    The domestic legislation treats some procedures of the issuance of permits and documents for immigrants for their stay in Ukraine as rendering them administrative services by an authorized body: SMS. The author believes that this is an important positive factor, since in this case the rights of immigrants as consumers using administrative services under the extra protection of the Law of Ukraine “On Administrative Services” (no. 5203 -VI of 06.09.2012). The provisions of the said Law display relatively high standards of client servicing and, in contrast to departmental regulations of MIA, establish additional requirements for the SMS to ensure the legality of paper work and issuing permits and passport documents to foreigners. However, in Ukraine the field of administrative services remains one of the most corrupt and bureaucratic and its normative formalization shows unsystematic character, numerous legal loopholes and conflicts and existence of provisions that, to some extent, legitimize violations of the interests of an individual in the process of obtaining one or another service from a unit of government.

   The situation in the SMS is no exception: this state body currently is not able to fully meet the needs of consumers and strictly put into practice the declared legal principles of rendering administrative services, i.e. the rule of law, justice, convenience, accessibility and transparency. For immigrants the problem is further complicated by the fact that being in an unfamiliar country and not knowing its laws they are unable to effectively protect their rights and interests while drawing up documents for stay in Ukraine in the SMS.

    Curiously enough, presently the domestic legislation neither classifies nor approves with the normative legal act at the state level all spectrums of administrative services for registration of immigrants’ passport documents. According to the Resolution of the Cabinet of Ministers of 04.06.2007 no. 795 “On approval of the List of paid-for services provided by the units of the Ministry of Internal Affairs and the State Migration Service and the schedule of prices”, the SMS is empowered to grant immigrants only four types of administrative services: official registration and issuance of permits for immigration in Ukraine, official registration and issuance of permit for permanent residence in Ukraine, official registration and issuance of a temporary residence permit in Ukraine, official  registration of extension of stay on the territory of Ukraine. However, in practice, the SMS provides a much greater range of services relevant to immigrants concerning these issues, in particular considering the petition of aliens for citizenship of Ukraine, issues identity cards for stateless persons for travelling abroad, has to perform official registration of ICs and refugees’ travel documents, identity card and travel documents to persons who have been granted additional protection. Attention is drawn to the fact that at the national level they approved only the list of paid-for administrative services rendered by the SMS, while no legal act of national level ever listed free services to which it is advisable to include services of delivery of documents to refugees and persons granted extra protection,.

In their turn, the isolated departmental regulations and policy papers of SMS only deepen in Ukraine the crisis of legal regulation of the issuance of passport documents

Article 8 of the Law of Ukraine “On Administrative Services" ordered executive agencies to develop information and technology cards for each administrative service that they provide. These cards should ensure transparency of state authority in rendering services to citizens, fully inform about the reasons, timing, cost and procedure for obtaining services and simultaneously set the sequence of the actions of a functionary rendering service.

On 03.11.2013 the SMS issued order no. 48 “On approval of informational and technological cards of administrative services rendered by the SMS”, which currently regulates the territorial units of this service, including establishing the terms, timing and procedure for issuance of documents confirming immigrant’s status and permitting to reside in the state. The analysis of this order shows that the migration service has failed to develop a thorough and client-oriented normative regulation: the resulting SMS order no. 48-2013 is rather controversial from the standpoint of law and inconvenient in practical use document that in no way contributes to the protection of the rights of immigrants as consumers of services.

    It should be noted that the order has not been registered with the Ministry of Justice of Ukraine in accordance with the “Regulations on the state registration of normative legal acts of ministries and other executive bodies” (approved by the Cabinet of Ministers of Ukraine on 28.12.1992 no. 731), although its content is directly related to rights, freedoms and individual human interests. As of 06.01.2013 the order was not entered in the base of normative legal acts on the website of the Verkhovna Rada of Ukraine and was published only on the official website of the SMS[2].

    Unclear is also the fact that the list of administrative services compiled by the SMS through the approval of information and technology cards by departmental order no. 48-2013 is cardinally different from the list of services specified by the Regulation of the CM of Ukraine no. 795-2007.  The SMS approved cards granting immigrants services for official registration and issuance of permanent and temporary residence permits ignoring at the same time the need to develop two other cards provided for by legislation concerning the most popular services for immigrant: permit for immigration and official registration of extension of stay in Ukraine. Currently, the SMS bodies actively render such services to foreigners, but due to lack of information and technology cards on them neither an immigrant, nor receiving party can establish on the spot the legality of actions of the officials and legitimacy of their claims.

    At the same time, having not fulfilled legal requirements to develop cards for services specified by the “List of paid-for services provided by the departments of the Ministry of Internal Affairs and the State Migration Service” (Resolution of the Cabinet of Ministers no. 795-2007), the SMS by its Order no. 48 -2013 marked as administrative and developed information and technology cards on a number of services rendering of which was not provided for by the above List, in particular:

    - Processing and issuance of certificate of a stateless person for travelling abroad or exchange of the certificate.

    - Processing and issuance of refugee’s travel document.

    - Processing and issuance of the travel document of the person who has been provided additional protection.

    - Processing and issuance of refugee certificate.

    - Processing and issuance of identity cards for persons needing additional protection.

    The intention of SMS, in the absence of the state-level normative legal act, to treat as administrative document and by its own order independently regulate the procedure for the provision of these services to immigrants deserve approval, as there, of course, exists a need for detailed procedures for obtaining these documents. However, it is obvious that such standard-setting initiative of the SMS does not improve the haphazard legal framework for the provision of administrative services, as they are rather controversial from the standpoint of law: paragraph 7 of article 11 of the Law of Ukraine “On Administrative Services” specifies that “the subject of administrative services cannot provide other paid services which are not provided for by the law on administrative services fee (administration fee) for their provision”.

    Approved by SMS Order no. 48-2013, the information and technology cards from the standpoint of the rights of immigrants became an apparent step backwards, even compared to previous imperfect “Standards of rendering administrative services” (adopted by order of the MIA of 02.02.2012 no. 84 and abolished in March, 2013). The overall analysis of the content of the cards shows a superficial fulfillment by SMS of the provisions of the Regulation of the Cabinet of Ministers of Ukraine of 30.01.2013 no. 44 “On approval of requirements for the preparation of technological cards of administrative services” and “Information card sample form of administrative services” recommended by the Ministry of Economic Development and Trade of Ukraine; the requirements set for data content of the card specified in the above documents were satisfied but ​​formally.

    First, the very fact that the Migration Service has refused to retain in the cards a number of important procedures directly related to the interests of immigrants while receiving and reviewing their applications thrusts itself forward. Now the cards do not make SMS officials to include in an itemized record of the alien’s documents and hand her/him a copy of this description, which complicates the ability to protect immigrant’s rights in the event of appeal of the official’s decision.

    Paragraph 5 of Article 10 of the law “On Administrative Services” emphasizes that “the administrative service is considered rendered from the moment of its receipt by the subject of recourse in person or the moment of sending by mail (registered mail with return receipt requested) a letter about the availability of such service to the subject of appeal”. Ignoring this requirement of the legislation, neither information nor technology cards of SMS require informing in writing of alien about the possibility (impossibility) of receiving the service of official processing of documents by sending a formal notice. Unlike the abolished standards, the preparation and sending of such notice is not the responsibility of the migration service officials; it is specified in paragraph 15 of information cards “Ways to get response (result) by the consumer of services”: “In person”. Such unnecessarily brief and generalized formulations are typical for other items of the cards.

    It is worth noting that “The standards of administrative services” annulled in March 2013 enabled an immigrant and receiving natural or legal entity an opportunity to review both the regulations governing the issuance of the required document and with the sequence of actions of a foreigner and SMS official at all stages of processing. In its turn, the introduced information and technological cards actually split the familiarization procedure for an immigrant into two parts with a smaller amount of information: the information card acquaints with the legal requirements regarding the terms and conditions of service provision, grounds for refusal to grant it, size and sequence of payment etc. and technological card describes in stages only the actions of an official in the provision of administrative service and mechanism of appeal of the adopted decision. In this way neither the information nor the technological card detail the structure and sequence of the actions of the foreigner, which certainly complicates the process of communication with officials and does not ensure the fulfillment of the requirements of Article 6 “On Administrative Services”, which emphasizes the need of creating at the service centers of conditions under which the citizens receive the information “in an amount sufficient to obtain administrative services without assistance”.

    Moreover, under Article 8 of the above law, only informational card are to be published by posting in places of reception of citizens while the technological cards are not covered by this requirement, as a result of which they actually become unavailable to foreigners. Taking into account that information on ways to appeal actions of SMS officials is contained in technological cards only one can argue that the immigrant has no direct access to information as a sequence of actions of the official who receives and handles his appeal (because it cannot assess the extent of legality of the actions of this official) and information about the order of submitting appeals. It is noteworthy that the section “Appeal" of the technological cards does not contain a full and thorough explanations on ways to appeal denial of issuance of documents to an immigrant; the majority of cards do not even mention the possibility of an appeal against the actions of an official to the management of the SMS of Ukraine. Such settlement of the procedure of information is clearly contrary to the provisions of Article 4 of the Law “On Administrative Services”, which specifies principles of state policy in the service openness, transparency and accessibility of information on the procedure they received.

    The conditions for obtaining a certificate of a stateless person to travel abroad, a temporary or permanent residence permit specified in the cards require that the immigrant submits  a copy of identification number certificate issued by the tax authority. However, this situation obviously disregards paragraph 7 of Article 9 of the Law “On Administrative Services”, which reads: “the entity providing administrative services may not require from the appealer documents or information in the possession of the subject of administrative services or in the possession of public bodies and authorities”.

    In violation of paragraph 6 of “Requirements for the preparation of technological cards of administrative service” (approved by the CMU no. 44-2013) the technological cards of SMS do not describe the stage of administrative interaction of the migration service officials interact with the units of information and analytical support of MIA in conducting verification about immigrant’s criminal background, which is one of the conditions of receiving by them of certain types of documents. This uncertainty leads to the fact that very often the personnel of migration services demand that foreigners or their receiving parties personally register in militia and submit together with other documents “certificate of clean record” which also brutally violates the requirement of the said Article 9 of the Law “On Administrative Services”.

It is also noteworthy that the SMS, while adopting information cards, failed to implement for their local bodies and units the standard schedule of administrative services. As a result, many local SMS bodies ignore the provisions of Article 6 of the Law “On Administrative Services”, which requires that officials establish reception hours for at least 6 hrs. on Saturdays.   

    1.3. Resolution of the CMU of 27.05.2013 no. 437 “Problems if issue, prolongation and revocation of permits for the employment of foreigners and stateless persons”.

    The normative regulation of the employment of immigrants is one of the most important and yet challenging tasks of legislative adjustment of processes in the field of immigration. Ideally, the balanced and timely updated legal norms should equally ensure compliance with the interests of both the state, private businesses and immigrants.

    Signing of the Law of Ukraine “On Employment” on 05.07.2012 necessitated changes in the procedure of employment of foreigners in Ukraine in connection with which the Resolution no. 437-2013 of the CMU approved “The procedure of issuance, prolongation and revocation of permission to employ foreigners and stateless persons”. It may be noted that the newly adopted document failed to fundamentally change the traditional domestic policy of controlling cross-border labor migration; it goes on requiring compliance with the main principle: “an alien may be employed only in the absence of local citizens of Ukraine who are capable and willing to perform this very type of work”. In practice, this amounts to screening of foreigners when considering applications for the use of their work to rule out the swift growth of the number of legal immigrant workers and reduce their impact on the labor market.

    However, compared to the previous procedure, the innovations of the CMU Regulation no. 437-2013 to a certain degree increased the level of protection of the rights and interests of labor immigrants making a number of positive changes to simplify for employers procedures of migrants’ employment. In particular:

    - it contains provisions for the possibility of issuing a permit for the employment of foreigners in relation to which a decision was made on registration of documents for resolving the recognition of an individual a refugee or person who needs extra protection;

    - the employer is required to pay legal fees (₴4,588) for a permit to employ a foreigner after the foreigners employment center makes a positive decision on the possibility of job placement. This terminated unclear and dubious practices forcing the employer to pay not for the permit, but for the processing of submitted documents when the centers of employment did not register these documents for consideration without the payment receipt and when in the case of refusal to grant permission to a foreigner to work in Ukraine the money were not paid back to the employer;

    - the list of documents that employers have to submit to the employment center in order to get a permit to employ a foreigner has been halved;

    - the list of documents to be submitted for prolongation of a permit has been reduced considerably;

    - the employment center official has to accept the documents on a checklist, give the employer a copy of this checklist marking the date and registration number of accepted documents and within one business day to verify them for compliance with existing requirements. At the same time the officials cannot require to provide any documents other than those specified in the checklist;

    - the decision-taking time for employment center to grant or deny a permit for the employment of a foreigner has been cut from 30 to 15 days;

    - the conditions of informing and transparency of such decisions have been improved. The decision about the possibility (impossibility) of permit for the employment of the alien not later than during three working days after the decision has been made is to be sent to the employer and posted on the web-site of the employment center;

    - the procedure for issuance of a duplicate permit instead of one lost or damaged has been provided for;

    - a shortened and liberalized list of grounds for refusal to issue a permit to the employer for employment of foreigners has been compiled. The updated Procedure contains no more the previous possibility of refusal due to “changes in the labor market in the country (region), which withdraws the need for the employment of foreigners”; the ambiguous wording of this formulation made it possible to refuse employment of foreigners under false pretenses. Another positive trait is the cancellation of request to refuse processing of permit documents needed for the employment of a foreigner, if “the previous refusal to issue IM-1 visa to a foreigner or revocation of prior permit took place less than a year before”;

    - provisions for the conduct of deportation from Ukraine of the immigrant permit for employment of which was canceled due to absence from work has been annulled.

   However, despite more loyal points concerning foreigners, the norms of CMU Regulation no. 437-2013 “Problems of issuance, prolongation and revocation of permit for the employment of foreign nationals and stateless persons” are primarily focused on the interests of enterprises, institutions and organizations that employ foreigners. Having significantly simplified the relations of these entities with the government on issuance of permits for employment of foreigners, the government gave the go-by to changes of “employer-labor immigrant” relations. The Regulation of the CMU no. 437-2013 determined the procedure of legalization of employment of foreigners in Ukraine, which offered no reliable safeguards against losses caused by the employer, when not only the deliberate actions of the latter, but her/his elementary negligence in preparing documents or making payments made an immigrant to forfeit her/his right to work in Ukraine. For example, there may be such grounds for refusal to grant permission for the employment of a foreigner or repeal of previously adopted positive decision as “inadequacy of documents submitted by the employer”, “violations by the employer of the terms for filing documents," “unreliable data in the documents filed by the employer”, “failure to make payment by the employer within 30 days”, “failure by the employer to submit a copy of labor contract” and so on.

Another noteworthy point is that the Regulation of the CMU no. 437-2013 does not accentuate any more the duty of the employer to provide appropriate conditions for immigrant and remuneration of labor. The acting “Procedure of issuance, prolongation and revocation of a permit for the employment of foreign nationals and stateless persons” adopted in 2013, as opposed to the previous redaction of 2009, contains a provision stating that the contract of employment of a foreigner may not provide labor conditions worse and remuneration of labor less than for the citizens of Ukraine who perform similar work.

    One of the innovations offered by the Regulation of the CMU no. 437-2013 is the inclusion in the list of required documents for obtaining permit “the certificate issued by the medical and preventive treatment facility stating that the person is not suffering from chronic alcoholism, toxicomania, drug abuse or other infectious diseases according to the list approved by the Ministry of Health”. However, in practice, this procedure of medical examination of an immigrant has not been determined yet.

    From an interview with citizen of Armenia G.

   “I have been working in Ukraine by labor permit for more than four years now. The firm's management is pleased with me, I also like my job. This year we applied for prolongation of the permit and we were told that the procedure had changed, and therefore I need to submit medical certificates that I am not an alcoholic, not a drug addict, I have neither TB nor transmittable diseases. They gave no appointment cards to doctors, but only explained that to get first two certificates I had to visit the drug-abuse clinic, while nobody knew where to get a certificate about absence of contagious diseases. I went to the doctor in a general hospital and he laughed and said that it was no concern of his and sent me to the venereologist. He also wondered at it and said that there were a lot of contagious diseases starting from the flu to more serious ones. Also nobody knows what text should be in the certificate. In short, once again I need to waste my time, nerves, and extra money. It would be good if they issue appointment cards to a certain medical facility pointing out that the certificate is required for employment in Ukraine.”   

   2. The SMS activity in the context of the rights of foreigners   

   2013 became a year of answers to the question: “How will the SMS work?” because in 2013 came to an end the final transformation of Citizenship, Immigration and Registration of Persons Service of the  MIA into the State Migration Service, which, after all, was conferred on all powers determined by legislation. However, due to the nature of SMS format approved by the government, it is impossible to position the Ukrainian migration service as a civilian one and completely independent of the militia. “Regulations on the State Migration Service of Ukraine” (approved by the Decree of the President of Ukraine from 04.06.2011, no. 405/ 2011) reads: “The SMS is a central executive body, whose activities are governed and coordinated by the Cabinet of Ministers of Ukraine through the Minister of Internal Affairs of Ukraine.” Currently, the SMS staying under a kind of “patronage” by MIA must be guided in its activities by the orders of the Ministry of Internal Affairs and fulfill instructions of the Minister of Internal Affairs, who directs and co-ordinates its work: puts forward candidates for the posts of SMS chiefs, approves working schedule and monitors its fulfillment, decide on structural reorganization etc. It is clear that such accountability of the State Migration Service to the MIA, the paramilitary structure with specific priorities distinguished from the priorities of civilian agencies cannot but affect the operation of the SMS and management decisions of its leadership.

   However, even under such circumstances, the replacement of MIA by SMS as a tool to implement the revised and liberalized immigration laws predictably led to a decrease in the level of violation of human rights and freedoms of immigrants during the efforts of Ukraine to counteract uncontrolled migration. The official statistics of the results of traditional for the law enforcement agencies indices of performance of coercion and punishment used against foreigners suggests that during 2013 the attitude of the migration service towards immigrants was much more appropriate and humane than the traditional MIA tactics of total supervision of foreigners and punitive principles of working with them during the all-Ukrainian targeted operations “Migrant”, “Foreigner”, “Illegal immigrant” and so on.

   Table 1. Comparing the results of MIA and SMS of Ukraine in counteracting uncontrolled migration in 2008 - 2013[3].

 

 

MIA

SMS

2008

2009

2010

2011

2013

Illegal migrants detected

14,876

14,310

14,478

13,298

1,386

Adopted decisions on expulsion from Ukraine

14,334

13,824

14,096

13,030

945

Adopted decisions on forced expulsions from Ukraine

2,495

2,299

1,972

1,784

46

Brought to administrative responsibility under article 203 of the AOC for violation of rules of stay in Ukraine

57,780

56,287

60,131

55,219

11,339

Term of stay in Ukraine cut short

10,687

8,993

7,993

5,961

221

Ban on entry

13,561

13,604

13,387

10,490

247

This impressive drop by the dozens of the militia “achievements" in their fight against uncontrolled immigration in no way should be regarded as evidence of the ineffectiveness of the SMS work to prevent illegal stay of foreigners in Ukraine. On the contrary, according to the author, these figures more realistically reflect this segment of the migration situation in the country and show that, compared with the chiefs of the Ministry of Internal Affairs, in 2013 the management of migration service proved to be less prone to artificial raising of the rate of department’s performance by continuously encouraging subordinates to achieve these parameters at any cost, even by ignoring the rights and freedoms of immigrants. It is worthy of attention that the termination of the “play of forces” and “display of force" against foreigners had no negative impact on the crime situation in Ukraine; what is more it led to the opposite effect: against the background of more loyal treatment of immigrants by the SMS in 2013 there was a slump of statistics of criminal offenses committed by foreigners.   

   Table 2. Comparison of the total number of counted crimes (criminal offenses) of the number of crimes committed by immigrants in 2008-2013[4]

 

2008

2009

2010

2011

2012

2013 (9mos)

Registered crimes (criminal offenses registered since 2013)

384,424

434,678

500,902

515,833

433,655 (as of 20.11.2012)

535,299

incl. those committed by foreign nationals

3,023

2,998

3,524

4,228

3,776 (as of 20.11.2012)

1,249

Crimes (criminal offenses) committed by foreigners against the total of crimes (criminal offenses), in p.c.

0.8%

0.7%

0.7%

0.8%

0.9%

0.2%

In this way the year 2013 showed that the thesis “without strict measures of control, enforcement and penalties on immigrants the countries would get bogged down in foreign crime”, which militia kept thrusting on the public for a decade or so, is false, and the MIA greatly exaggerated the level of security threat to Ukraine from Immigration foreigners, probably guided by their own departmental interests.

However, it is quite possible that the changes for the better in the mode of operation of the SMS with immigrants were due to subjective factors only (tolerance for foreigners after Euro-2012, personal positions of SMS chiefs, etc.). The potential threat to the rights and freedoms of foreigners constitutes the implementation at the end of 2012 of legislative regulation excessively empowering the immigration service to resort to coercion and punishment. It can be argued that presently in Ukraine the practice, dubious from the point of view of human rights, has been renewed permitting to resolve conflicts between an immigrant and the state not in court but by the decision of one of the participants of the conflict, i.e. the SMS, which has received much more power now than the Ukrainian militia in the past.

    The Law of Ukraine no. 5459 -VI dated 16.10.2012 amended Article 222 of the Code of Ukraine on Administrative Offences under which the right to impose administrative penalties on foreigners and on natural or legal persons receiving them (article 203, articles 204, 205, 206 CAO) was devolved from the court bodies on the chiefs of departments of the migration service. Therefore the officials of SMS units now can make decisions on their own about throwing the book at the immigrants. The competence of the judicial bodies the legislators have limited to making decisions on forced expulsion of an immigrant from Ukraine, which is based on appropriate action of the SMS.

   This state of affairs is a real threat to the rights of immigrants, as the migration service has legislative opportunities to return to the repressive model of relations with foreigners, typical of MIA, at any time now. Practice shows that abuses by officials of the SMS are inevitable.

   However, today a different direction in protecting the rights of immigrants gains a priority. Alongside of the powers the SMS has inherited a wide range of unsolved issues related to the traditionally high level of corruption and bureaucracy inherent in the units of the Citizenship, Immigration and Registration of Persons Service of MIA of Ukraine. It is clear that these manifestations of bureaucratic arbitrariness will affect not only immigrants, but citizens of Ukraine as well, but the foreigners intending in one way or another to officially legalize their stay in Ukraine can be considered to be the most vulnerable categories among the clients of the SMS units. Unfamiliar legislation, poor Ukrainian language skills, unfamiliarity with existing methods in Ukraine concerning appeal actions against officials and an elementary lack of practical skills in dealing with public officials evoke in immigrants confusion and disbelief in the possibility to defend on their own their rights if they are ignored by the personnel of the SMS.

   On every hand we come across the violation of the rights of foreigners at the stage of processing of various permits and documents that give them the opportunity to stay in Ukraine on legal grounds, during prolongation of their stay in Ukraine and issuance of temporary or permanent residence permits. In the first section of this text we pointed to some normative and legal reasons for this situation, but more often than not the violation of the rights of foreigners are not caused by shortcomings of legislation, but by the “human factor”: incompetence, neglect of duties or outright corrupt intentions of the SMS officials. The unreasonable refusal to accept documents for consideration, violations of the terms of decision-making, demanding compensation for a positive decision, refusal to provide necessary information, rudeness and arrogance in communication are the most common violations of the rights of migrants and their receiving parties in Ukraine discussed on Internet forums which is the most evident proof of the acuteness of the problem. Here is a typical example.

I helped my colleague from Azerbaijan to process a temporary residence permit for his wife (also from Azerbaijan). Grounds: he has a temporary residence permit in connection with employment in Ukraine. We submitted all required documents together with notarized translations of passports and marriage certificate. The officials ordered us to arrive in two weeks to the Oblast Department of SMS (they explained that we would gain time). We came as they said, but they told us that they’d declined the documents and sent them back to the district department. We ask for what reason. The official answer: “The package of documents is not full: there is no copy of the marriage certificate.” We said that we’d submitted everything including the certificate; otherwise they would not have accepted the documents. The official answered: “I’ve got no idea and stop distracting me from my work.” We suggested: “Just wait, we made several copies of translation of the marriage certificate for future use and we can bring a copy here in no time.” The female employee shouted at us: “You didn’t get the message? The documents were turned down. Out with you and start from the scratch.” We went to the district department and asked: “How so? We did submit you a copy of the marriage certificate!” And the clerk calmly answered: “If you had submitted it, it would have been in place.” I said: “But you officially accepted our documents; therefore, there were all necessary certificates” and she answered: “How would I know? You might promise to bring a copy of the marriage certificate later.” But that's not the point. We said: “Well, here's a copy of the marriage certificate, and please issue residence permission to his wife," and in response we hear (sic!): “Her registration expires in two days, and we have no right to prolong it. She would rather leave Ukraine and come back in a few months. By that time and the required residence permit will be ready.” I was eager to reach their bosses, but my colleague was afraid these vain efforts would bring a lot of trouble because the aliens depend upon immigration service personnel which would haunt them later. In short, I left the office, and he settled everything for a “modest fee”. As I understood it, the certificate was ready exactly in two weeks all the same, but they didn’t bother his wife because of the delayed registration. The former Visa and Registration for Foreigners Office turned into the SMS, but in fact nothing has changed: the same people and the same old order.

I’ve got a question now: how to insure oneself against such trouble? Should we record with a sort of camcorder to record the transfer of documents to SMS inspectors, like they make records at wedding ceremonies? Or else we’d better ask them to sign copies of documents, though they will refuse. And whom to complain to about such willfulness? To the office of a public prosecutor? Court? But if we wrote a complaint against the migration service, due to procrastinations with the consideration procedure the wife of my comrade could be deported because of the end of registration. And, in general, it’s a shame for the country.”

   However, the prevalence of cases of violation of the rights of foreign nationals in the departments of SMS is caused not only by the flaws in legislation or the poor quality of personnel training. The SMS using the powers granted to it to form businesses legitimized and rendered organizational support for its own business corporation or State Enterprise of SMS “Document”, which acts as immigrants-paid unnecessary mediator between immigrants and officials of the migration service.

    The Public Enterprise “Document" was established under the Ministry of Internal Affairs of Ukraine in order to “ensure state-of-the-art conditions of service for the population of Ukraine, foreigners and stateless persons” (quoted after the official website of the SMS). In 2011, the Public Enterprise “Document” was placed under the SMS pursuant to the Regulation of the CM of 15.06.2011 no. 538 “On the transfer of integral property complexes of the public enterprises under the management of the State Migration Service” and the joint order of the MIA and the SMS of 21.07.2011 no. 467 /36 “On the transfer of integral property complex of the Public Enterprise “Document” under the management of the State Migration Service."

   Despite the officially declared corporate objective of the Public Enterprise “Document” as “rendering more comfortable services for the citizens by the units of SMS” the priority and often the only focus of the company remains the imposition on clients, including immigrants, a wide range of “voluntarily purchased” services of processing and issuance of documents. It should be noted that the services Public Enterprise “Document” are considered complementary, therefore the fact of turning to a specific company does not release an immigrant from having to pay for the services of migration service: the foreigner purchases the service of migration service and services of Public Enterprise “Document”, which kind of gives professional advice, issues forms and helps foreigners to fill them out. In fact, the Public Enterprise “Document”, as a rule, does not render such services due to lack of appropriate premises, technical equipment and lack of trained staff.

    The national legislation treats the registration of immigrants’ documents for their stay in Ukraine as the process of obtaining administrative services by the foreigners and the service-rendering subject, or SMS, supporting the activity of the Public Enterprise “Document” massively violates the rights of immigrants as recipients of administrative services. Arguably, if the SMS strictly implements all provisions of the Law of Ukraine “On Administrative Services", the foreigners will have no need to turn to the Public Enterprise “Document”. The very existence of the company in its present form is an indicator of the formal attitude of the management of the Migration Service to the provisions of article 2 of the Law “On Administrative Services”, which emphasizes that the subject of administrative services shall create conditions for recipients of services “sufficient to obtain administrative services without outside assistance”. Presently the activities of the regional subsidiaries of the Public Enterprise “Document” are quite contrary to the principles laid down in articles 6 and 9 of the Law of Ukraine “On administrative services” for advising immigrants as recipients of administrative services in the field of processing documents for their stay in Ukraine is a direct obligation of the personnel of SMS; the stands on the premises of the SMS must feature exhaustive list of required documents and samples of their completion while forms and reference and information materials on the administrative service should be issued free of charge to visitors. However, neither SMS nor employees of the State Enterprise “Document” are interested in compliance with these legislative requirements, because well-being depends on the volume of funds received from visitors.

The management of the State Enterprise “Document” enabled its personnel to render immigrants “Information and consulting services concerning immigration and passport issues." However, “The list of consolidated tariffs of the State Enterprise “Document” does not specify at least one particular type of such advisory assistance to foreigners stating only that the “advice on the requirements of normative legal documents” may be offered. In this case, the cost of advice makes ₴25 (₴30 until 30.07.2013), although it is evident that advices concerning different areas of migration services differ significantly in terms of complexity and hours which may and should alter the price of an advice. The consultant giving an immigrant expert advice is expected to have practical acquaintance with foreign languages​​, as well as excellent knowledge of all sizable database of numerous normative legal acts that regulate the relationship between an immigrant and the authorities, not only with the SMS. In its turn, the State Enterprise “Document” is a commercial structure that does not impose such requirements for qualification of personnel, which basically cannot offer quality consulting services. Consulting of foreigners in the State Enterprise “Document” is nothing but profanation because they can offer advice only about the location of offices, cost of services for immigrants and provide samples of filling out required documents, although this type of information to all interested persons should be provided free of charge and with unimpeded access.

The management of SMS obscured the activity of the State Enterprise “Document”, which was rather questionable from the standpoint of legality, used to officially proclaim the main principle of offering services by the said agency consisting in giving service at the request of citizens only, and the order of the SMS from 28.09.2011 no. 76 “On regulation of paid services rendered by the State enterprise" Document” made the State Enterprise “Document” “by all means to inform applicants that the services of the State Enterprise “Document” are not administrative (government) and they may be sought on a voluntary basis only”(paragraph 2.3. of the order). However, the foreigners and their receiving parties in Ukraine complain with indignation that the SMS officials in one way or another with a certain degree of persistence encourage immigrants to apply to the State Enterprise “Document” for obtaining unnecessary counseling or mediation services concerning processing of documentation. Moreover, the personnel of territorial units of the SMS create induced conditions under which the rejection of proposals to use “voluntarily purchased” services of the State Enterprise “Document” leads to intentional delays in the adoption and consideration of documents submitted by an immigrant, while individuals who agree to pay the company are offered services bypassing the existing lines under the inventive wording “enhanced comfort service”.

   There is also the issue of price-list the Public Enterprise “Document” offers the foreigners for above “forced-voluntary” service. The same order dated 28.09.2011 no. 76 insists on “adjusting the price of services provided by The State Enterprise “Document” in accordance with the actual costs associated with the services rendered” (paragraph 2.4. of the order). However, the response of the State Enterprise “Document” was rather peculiar: the company by its order no. 54 /1 of 18.07.2012 adopted “The joint tariff for services concerning passport/visa documents processing” valid until July 30, 2013. Under no circumstances the said pricelist can be recognized as economically sound and tied to the cost of the offered services: the price for the services of the State Enterprise “Document” was several times higher than the cost of similar administrative services provided to immigrants by the migration service. For example, for prolongation of stay in Ukraine the foreigner was offered to transfer ₴150-350 to the State Enterprise “Document” in addition to the already paid ₴44.85 for the service of migration agency for the alleged representation by the enterprise of the interests of immigrants in the unit of the SMS. Such amounts are clearly disproportionate to the cost of time and manpower, since in practice the processing of immigrant’s prolongation of stay in Ukraine is nothing but a stamp in his national passport.

    On 30.07.2013 by its Order no. 89 the State Enterprise “Document” adopted for its regional bodies the new “Pricelist for services of immigration and passport character” dropping a number of the most obvious pseudo-services, but leaving other services the cost of which was not economically sound. Thus,” information and advisory aid” rendered by the State Enterprise “Document” will cost additional ₴120 to foreigners for prolongation of stay in Ukraine (the cost of SMS services is ₴44.85), for processing permanent or temporary residence permit (cost of SMS services is ₴52.49), for processing of documents for obtaining citizenship of Ukraine (SMS provides these services free of charge).

    It should be noted that immigrants staying in a foreign country usually consider employees of the commercial structure “Document" public officials and official representatives of the Ukrainian state (after all, the offices of this enterprise often are located directly on the premises of the migration service), so without hesitation and appeal they fulfill all requirements articulated by the State Enterprise “Document”.

  “Yesterday we furnished documents to Chernivtsi Visa-and-Registration-for-Foreigners Office for a residence permit for the husband for family reunification. We paid ₴245, but we hadn’t about us the sum to cover “insurance” and they said we could pay upon receipt of permit. The cost of insuring makes ₴500, but there is another strange point: in addition to these ₴500, we have to pay another ₴400 for the “expulsion” which was written on a piece of paper that we were given. The total of ₴900 to be paid plus ₴245 already paid makes ₴1,145. What does the clause about “expulsion” mean and where is it specified? Nobody could explain anything on the spot (everyone was very busy). Maybe somebody knows something, because for me, as for many others, ₴400 do not lie around in the road[5].

   It is clear that this is questionable from the standpoint of human rights business, when a commercial enterprise with the help of government officials charge the immigrants eager to reside in Ukraine additional levies, could not exist without the help of the top management of SMS, with the acquiescence of which the rights and legitimate interests of immigrants are violated in order to ensure growing financial needs of the department.

3. Activity of MIA in the context of the rights of immigrants   

   The transition of function of monitoring the immigrants’ stay in the country from MIA to the migration service has influenced the kind of violation of human rights of foreign nationals by the militia. Such reorientation has significantly reduced the possibility of law enforcers to pressure immigrants during steps intended to ensure compliance with the law on the legal status of foreigners, but, however, it has failed to protect the latter from other forms of militia arbitrariness: extortion, unwarranted checks of passport documents, arbitrary detention, calling to administrative liability for false motives and so on. From these traditional for national militia abuses suffer both citizens of Ukraine and immigrants through ignorance of their rights and freedoms, disbelief in the possibility of effective protection of their interests by legal means and reluctance to oppose armed officials in a foreign country and they easily become a target of illegal actions of law enforcers.

  “Somebody has uploaded to the Internet site the video shot in the Moscow District of Kharkiv. It shows how several patrolmen surrounded an African. Young people, who have witnessed the situation, tried to find out why the militia was picking on a foreigner. However, that was all there was to it: the patrolmen on the video refused to identify themselves, although their uniform with the label “Militia” on their backs made it possible to establish where they worked. The guys tried to call the militia station, but the officer on duty slammed down the receiver. According to this African guy, the patrolmen committed a despicable act trying to cash in on the foreigner. “He demanded money, but I refused," the dark-skinned young man spread his arms. However, the patrolman didn’t give a damn about being exposed. “Under this article, I could dash off kinda arrest report incriminating this African," he mysteriously blurted out.”[6]

   Equally important is the problem of violations of the rights of foreigners by the militia at various stages of criminal proceedings. The Ukrainian legislation, including the Criminal Procedure Code, guarantees immigrants equality with the citizens of Ukraine before the law. It is clear that the investigation of crimes committed by foreigners as well as committed against them has certain peculiarities and requires relatively high skill of militia officers, understanding of the principles of immigration legislation, more hours and attention while working with documents, official involvement of interpreters in procedural actions and so on. However, quite often the law enforcers try and simplify their operations and reduce the solution of specific problems in the criminal proceedings to basic disregard for the rights and interests of foreigners.

  “Despite the fact that Nigerians do not speak either Ukrainian or Russian, during initial state of the evidence at the Leninsky district militia department of the City of Luhansk, suspect O. and witness E. were not provided with qualified interpreters. Citizen A. maintains that he poorly understood the meaning of questions asked and his answers on the record do not correspond to the explanations he actually gave. During the trial it was found that materials of the case contain no information about individuals and qualification of translators involved during the preliminary investigation. In this case the suspect A. claimed that he was pressured to sign incomprehensible record of investigative actions written in Russian. During the trial Interview the officer of the investigative division confirmed that he conducted a number of investigatory actions without the suspect’s lawyer but he failed to document the legality of his actions. Also, it can be assumed that in the absence of a qualified interpreter during medical examination numerous bruises received by citizen O. in an attack on him were not documented. According to the words of the latter, the medical examiner completely ignored his complaints about the state of his health.”[7]   

   4. Rights of refugees and persons in need of additional or temporary protection

      In 2013, the Law of Ukraine “On refugees and persons in need of additional or temporary protection” remained unchanged, but from the time of its adoption in 2011, the human rights community kept repeatedly pointing out: it is impossible to recognize the above normative legal act perfect and one that guarantees the aforementioned categories of immigrants possibility to realize in Ukraine their right to legal and dignified existence.

   At one time the said act was seen as a progressive one; together with this, the experts pointed to the need for its specific revision primarily to revise controversial provisions that did not comply with the general orientation of liberal law. However, during the years 2012-2013 these changes were not made and now the law continues to contain contradictory provisions concerning the interests of immigrant, including:

   - sets unreasonably short 5-day period both for filing an immigrant’s application for an intention to obtain refugee status or a person in need of protection, and for filing appeal against the decision to refuse to grant it;

   - has no clearly prescribed rules on the prohibition of expulsion or forced return of immigrants who applied for refugee status or a person in need of protection, but the final decision in respect of which had not adopted yet;

   - alows the removal passport documents for “storage” from immigrants who applied for recognition as refugee or person who needs protection,;

   - refuses immigrant to obtain protection if before arrival in Ukraine he “had had stayed in a safe third country” (the vagueness of the term “stayed” creates conditions for its various interpretations);

- does not clearly define mandatory participation of an interpreter in procedures important for immigrant, such as issuing him a written notice of refusal to accept an application for refugee status (by a person who needs protection) during immigrant’s reading fixed with the signature of the order of appeal. This approach converts the specified procedures into bureaucratic formality: the foreigner may not understand what kind of document and for what purpose s/he signed;

   - anticipating the need for fingerprinting of immigrants-asylum seekers and persons in need of protection it does not explain how to use this DB and does not establish safeguards to protect the rights of foreigners to privacy;

   - does not establish binding review by an immigrant-signer of the decision to refuse to recognize or refuse to process documents for recognition of his refugee status or person in need of protection: the migration service can simply send an alien a written notice about the decision.

    The positive normative innovations in 2013 include the resolution of the Cabinet of Ministers of Ukraine of 27.05.2013 no. 437 “The issuing, prolongation and revocation of a permit for the employment of foreign nationals and stateless persons”, which details the procedure for employment of persons who have been allowed to submit documents to address the issue of recognition them as refugees or persons in need of extra protection, as well as the order of the Ministry of Education and Science of Ukraine of 07.05.2013 no. 488 “On approval of Procedure of education and training in the state and municipal primary, secondary and vocational educational establishments of children of persons from foreign nationals and stateless persons who have been granted temporary protection in Ukraine”, which regulates the enrollment of children of this category of immigrants in schools in the manner and on the basis of documents stipulated for the citizens of Ukraine.

   However, only the fact of the adoption by the state of normative legal acts, even the most liberal in their attitudes to refugees and persons in need of protection, cannot be regarded as an indicator of achieving the appropriate level of respect for immigrants’ rights and freedoms. The rules of law aimed at solving a particular problem are implemented in real life by authorized officials of the relevant agency; very often the final result or effectiveness of the law depends on their personal understanding of the nature and significance of the problem, as well as position of the agency. The positive changes in the normative legal framework failed to significantly reduce the traditionally high level of bias in official treatment of asylum seekers; the official statistics show that at present the problems of immigrants do not bother the SMS while the potential of humanity laid down in the Law of Ukraine “On refugees and persons in need of additional or temporary protection” in 2013 was not realized: out of 703 immigrants, who had filed applications for the status of refugee or person in need of extra protection, within nine months of 2013 only 148 were settled positively (63 acquired refugee status and 85 got the status of a person in need of extra protection). Allegedly significant (compared to the previous year) growth to 21.1 % in the number of positive decisions cannot be regarded as a signal of significant improvement, because it caused a significant decrease in the growth of the total number of immigrants’ applications and the actual number of foreigners, whom Ukraine granted protection, remains about the same.      

   Table 3. Total of immigrants’ appeals for obtaining protection from Ukraine vs. the number of positive solutions[8]

 

2010

2011

2012

2013 (9 mos.)

Number of immigrants who applied for refugee status or a person in need of extra protection

1500

890

1860

703

Number of immigrants who obtained such status

135

133

152

148

Favorable decisions on applications, in p.c.

9%

14.9%

8.2%

21.1%

The integrated reasoning of our legislation emphasizes the importance of loyalty to the immigrants, who were forced to come to Ukraine, and empowers the officials of the migration service to make decisions about the possibility of leaving immigrant in Ukraine to their discretion guided by their personal level of legal awareness and understanding of the orientation of the rules of law. The subjective and biased attitude of SMS employees to an immigrant or her/his country of origin may occur at any stage of the procedure for obtaining the status of the refugee or a person in need of protection; such attitude becomes apparent in the excessively detailed interview, biased evaluation of the reliability of the information provided by an alien, ungrounded request to provide additional documentation, delaying a final decision and so on.

   The lack of transparency in decision-making, absence of clear and understandable official arguments while refusing to grant an immigrant the desired protection led to widespread practice of reference to the court by the aliens for protection of their interests in court. Appeal against actions and decisions of the officials in the courts became an integral part of the procedure for considering applications for granting immigrants the status of a refugee or a person in need of protection.

   It should be noted that the Plenum of the Supreme Administrative Court of Ukraine by its Decision of 25.06.2009 no. 1 “On judicial practice of considering disputes regarding refugee status, expulsion of an alien or a stateless person from Ukraine and disputes relating to the stay of foreigners and stateless persons in Ukraine” (in redaction adopted on 16.03.2012) identified several important principles of application of the law in considering such applications, including as follows:

     1. Due to certain circumstances in some cases an immigrant cannot provide documents proving the existence of conditions for his recognition as refugee or person in need of protection, but this does not constitute grounds for finding the absence of the said conditions. Confirmation of the validity of fear of persecution can be obtained both from a person seeking protection in Ukraine, and independent of her/him from a variety of reliable sources of information, such as the UN Security Council resolutions, instructions of the Ministry of Foreign Affairs of Ukraine, information of the Office of the UN High Commissioner for Refugees, other international, governmental and non-governmental organizations, from the media, etc.

   Failure to provide documentary evidence of oral statements should not be a hindrance in making statements or making objective decisions on granting refugee status and persons in need of additional or temporary protection, if such statements are consistent with the known facts overall credibility of which is sufficient.

   2. Article 5 of the Law of Ukraine “On refugees and persons in need of extra or temporary protection” does not impose penalties for delayed filing immigrant’s applications for refugee status. In such cases, the offender may be only fined under articles 203 and 204-1 of the Code of Ukraine on Administrative Offences. Rejection of an application for recognition as a refugee or person in need of extra protection is contrary to the protection of fundamental rights under the Convention relating to the Status of Refugees of 1951 (article 33 “Non-deportation of refugees”) and the Convention on Human Rights and Fundamental Freedoms, 1950. The violation by an immigrant of her/his statutory duties to apply without delay to the migration service for her/his recognition as refugee or person in need of protection should not make grounds for refusal to accept it, it may only be taken into account during consideration.

   The law does not require immigrant to substantiate her/his statements, because in dealing with such cases the decision to refuse the recognition of the status of refugee or person in need of extra protection on grounds of invalidity of the application is not permitted.

    3. The law vests refugees and persons in need of additional protection or those, who have been granted temporary protection, with the right of family reunification. Refusal to reunite a family cannot be based solely on the absence of documents confirming the fact of family ties; in the case where an immigrant cannot provide official proof of family ties with members of her/his family other evidence may be taken into account and assessed in accordance with the laws of Ukraine. It is important that the right to family reunification occurs regardless of when this family relationship began, i.e. before or after the arrival of the immigrant to Ukraine. A refugee or person in need of extra protection, depending on his religion or belief, the circle of family members, according to his ideas, may be greater than those specified by the legislation of Ukraine. Therefore, taking into account all circumstances of the case, sometimes there is a need to allow for such family relationships, and people who are in such relationship with a refugee may be regarded as members of her/his family.

   4. Sound fear of persecution is a priority criterion for determining a refugee. S/he may be afraid not only on the basis of her/his personal bitter experience of a refugee, but also on the basis of experience of other people (family, friends, and other members of racial or social group). Anxiety can exist regardless of who is the subject of persecution, i.e. public authorities or not, that is persecution may be the result of activity of people who are not controlled by the government agencies and from which the state cannot defend. The situation of a well-founded fear of persecution may arise both during staying of immigrants in their country of origin, and during their stay in Ukraine.

   5. Accusing immigrant by a foreign authority or when the immigrant is the subject of an extradition request should not be automatically considered as grounds for excluding immigrants from the procedure for obtaining refugee status or for deprivation of the already received refugee status; it is necessary to take into account the compliance of the relevant country with the international standards of criminal justice.

   Noting favorable for immigrants overall direction of said provisions we must indicate that in 2013 the Regulation did not significantly change the situation with the protection of their rights as the document explains practical application of the relevant rules of law, but only when the immigrants refer to administrative court appealing the decision announced by the migration service on refusal to grant the status of a refugee or a person in need of protection. In their turn, the SMS officials, according to official statistics, in making such a decision do not deem necessary to apply the provisions of Regulation.

   The authorities should recognize that Ukraine, despite the renewal of immigration legislation, in 2013 our country did not become a safe haven for foreigners forced to leave their homes, while the quite liberal mechanism for obtaining immigrant status and desired assistance from state defined by normative regulatory acts is faltering or does not work at all. Such is the assessment of Ukraine's attitude to the problems of refugees or persons in need of protection made by the immigrants themselves, as well as representatives of UNHCR and numerous public experts.

  “Several Russian citizens, who have turned to the Ukrainian authorities for obtaining the refugee status, are calling for strict observance of their rights in Ukraine. Their statement reads as follows:

  “We, the citizens of Russia forced to stay in Ukraine require strict adherence to the Geneva Convention on the rights of refugees and asylum seekers; strict observance of our rights as people who are asylum seekers in Ukraine; end discriminatory policies on the citizens of Russia and Belarus that are asylum seekers in Ukraine.” The authors of the statement also claim that the Ukrainian migration authority does not issue passports taken in its charge, and because of that the asylum seekers cannot receive money, rent a house and so on.

   Presently several Russian citizens, who have left their country because of fear of becoming persons involved in the “Bolotnoye Case”, seek asylum in Ukraine. “Ukraine does not adhere to the Geneva Convention “On the Status of Refugees,” maintain the authors of the statement”[9].   

   4. Recommendations   

   1. Countermand the order of SMS dated 11.03.2013 no. 48 “On approval of informational and technological cards about rendering administrative services by the SMS” as a prerequisite for violation of the rights of immigrants and inconsistent with the requirements of the law of Ukraine “On Administrative Services”. Develop new departmental normative legal act which shall not only clearly regulate the procedure and detail all stages of the procedure for obtaining permits and documents of immigrants, but also shall provide regulatory safeguards against violations of the rights and freedoms of foreigners as recipients of administrative services.

   2. Amend the normative legal acts regulating the functioning of the State Enterprise SMS “Document” and its price-formation policy in order to bring the activities of the commercial structure into line with the laws of Ukraine “On Administrative Service”, “On Legal Status of Foreigners and Stateless Persons”. In order to prevent corruption, the targeted normative acts shall remove all state employees of migration service from backing the activities of the State Enterprise “Document”.

   3. Get scientists and public experts involved in legal assessment of regulations giving direction to the processes of entry, stay and social protection of immigrants in Ukraine in terms of determining the contradictions in their positions and establish compliance with generally accepted norms of international law. Design amendments to the relevant legislation and initiate their implementation.

   4. Reduce the amount of statutory authority of the SMS regarding punishment of foreigners; in particular, its right to make decision to ban entry of immigrants into Ukraine and decision on administrative liability for violating the law on the legal status of aliens (article 203, articles 204, 205, 206 of the Code of Ukraine on Administrative Offences) and turn it over to the competence of the court.

   5. With a special legislative document to make the SMS personnel to increase the level of confidence in the information that asylum seekers in Ukraine inform about themselves and about their existing grounds for the status of refugee or person in need of protection. Oblige SMS decision-makers to take into account the position of the Plenum of the Supreme Administrative Court of Ukraine as set out in the Regulation of 25.06.2009 no. 1 “On judicial practice of adjudication regarding refugee status, deportation of an alien or a stateless person from Ukraine and disputes related to the stay of foreigners and stateless persons in Ukraine” (in redaction adopted on 16.03.2012).



[1] Prepared by Volodymyr Batchayev, Association of Ukrainian Monitors on Human Rights

[2] http://SMSu.gov.ua/images/files/nakaz-SMS-48.pdf

[3] The statistics from the reporting forms of the Citizenship, Immigration and Registration of Persons Service of the Ministry of Internal Affairs of Ukraine and data the letter of the SMS Ukraine from 30.10.2013 no. 724z (response to an information request).

[4] Data from the letter of the Ministry of Internal Affairs of Ukraine of 15.10.2013 no. 16/2-227zi (response to the information request).

[5] http://forum.chemodan.ua/index.php?showtopic=56902&st=140

[6] http://kp.ua/daily/120313/383757/

[7] http://hr-activists.net/news/khronologiya-sobytii-po-delu-olaolu-sunkanmi-femi

[8] UNIAN news agency data (http://www.unian.net/news/592525-glava-uvkb-oon-v-ukraine-v-ukraine-bejenets-ne-izbavlyaetsya-ot-svoih-problem-a-naoborot-poluchaet-novyie.html) and data from the letter of SMS of Ukraine of 30.10.2013 no. 724z (response to information request).

[9] http://www.radiosvoboda.org/content/article/24999245.html