Human rights in Ukraine – 2008. 19. THE RIGHTS OF REFUGEES AND ASYLUM SEEKERS
Mention has been made in previous years «Human Rights in Ukraine» reports of considerable violations of the rights of refugees, asylum seekers and migrants. There were no positive changes to the situation in 2008. On the contrary, violations in this area are permanent, systematic and widespread.
According to figures from the Ministry of Internal Affairs (MIA) Department on Citizenship, Immigration and Registration, as of 1 January 2009 293, 984 foreign nationals or stateless persons were registered with the police, of whom 178, 859 were permanently living in Ukraine and 115, 154 were in Ukraine on a temporary basis..
In 2008 14 thousand 875 illegal migrants were detained of whom 14, 334 have already been deported, including 2, 495 forcibly..
According to statistics for 2008 provided by the UNHCR, as of 31 December 2008 2, 178 people had received refugee status. 52% were from Afghanistan; 27% - from former CIS countries; 13% - from countries in Africa; and 8% from countries from the Middle East, Asia or Europe. Of those who received refugee status 19% were female adults; 54% - male adults; 23% - minors and 4% - elderly people. In 2008 5.8% of those who had received refugee status since Ukraine’s independence, had received Ukrainian citizenship.
During 2008 2, 155 applications for refugee status were submitted to migration offices, this being an increase of 5% against 2007. However, only 463 applications were considered by the State Committee on Nationalities and Religion on their merits. This was in part due to a two-month break in the work of the Committee during the summer due to the lack of clarity over the restructuring of duties between the State Committee and the MIA. The main countries of origin of asylum seekers and refugees in 2008 were as follows: Pakistan (8%), Afghanistan (18, 6%), India (8, 2%), Somalia (8, 2%), Bangladesh (5, 7%), Iraq (4, 7%), the Russian Federation (2, 9%). Almost 50% of all applications came from the eastern border of Ukraine. Many of them were made from temporary centres for illegal migrants which suggests that some of them may have been made after unsuccessful attempts to cross the Ukrainian border on the way to the EU. According to estimates, 265 individuals were not able to submit applications for refugee status due to procedural obstacles or out of considerations of safety.
Only 125 people were granted refugee status in 2008. It should be noted that most of these were people who had made their applications in previous years since the procedure is long and drawn-out. 95 people were recognized by the UNHCR as in need of international protection and unable to remain in Ukraine due to safety considerations. The cases of those asylum seekers were transferred to the procedure for removal to a third, safe country. 71 people were moved, including those who had applied for resettlement in previous years.
Unfortunately it proved impossible to obtain official statistics from the State Committee on Nationalities and Religion. Their official website (http://scnm.gov.ua), which should contain such statistics has for some strange reason virtually not been working over the last half-year. And when you manage to half open the page with statistics, it shows only figures as of 1 January 2007, that is, for 2006. To its official request for statistics up to 2008, the Civic Centre «Social Action» received this curious response.
With regard to your letter we would inform you that «Statistical information is official, documented State information which provides a quantitative characteristic of mass-scale phenomena and processes which are taking place in the economic, social, cultural or other spheres of life. State statistical information is subject to systematic open publication. Open access to citizens, scientific institutions, and interested organizations is provided to unpublished statistical data which does not fall under any restrictions established by this Law, or the Law «On State statistics». The system for statistical information, its sources and regime are set out in the Law «On State statistics», and other legal acts in this sphere (Article 19 of the Law «On information»)
You can receive statistical data on the website of the State Committee of Ukraine on Nationalities and Religion www.scum.gov.ua
Head of the Department on Migration S.I. Shyrokov
There is no State Concept Strategy for Migration Policy, with only separate and unconnected normative acts. Migration processes are viewed both at State level, and by individual officials as problems, but not the possibility for development. There is an urgent need at present for a single concept strategy which can reflect the possibility of including and integrating into society people who receive refugee status. Only in summer last year did the government take the first steps towards drawing up migration policy.. The Ministry of Justice prepared and submitted for discussion a concept framework for a sing State migration policy. In December 2008 this Concept was approved by the Cabinet of Ministers. In addition, on 15 December the President signed a Decree on the decision of the National Security and Defence Council [NSDC] of 7 November 2008 «On enforcing the NSDC Decision from 15.06.2007 «On directions of Ukraine’s State migration policy and urgent measures to increase its efficiency». However no further steps were taken and for now the Concept Strategy remains mere declarative words.
Another significant aspect of the problem is that to this day there is no separate centralized body of executive power responsible for migration policy, but a number of disparate departments: the State Committee on Nationalities and Religion, the Ministry of Internal Affairs, the Security Service [SBU], the Ministry of Employment and Social Policy, and others. Therefore, instead of joint efforts, in practice we have constant reshuffling of duties and powers between these departments – a real battle for power resulting in violations of the rights of refugees and asylum seekers.
There have been attempts on a number of occasions to reform the State Committee on Nationalities and Religion. In summer 2008 a Cabinet of Ministers Resolution transferred part of the powers of the Committee to the MIA. However, a few weeks later, the President asked the Constitutional Court to give its judgment as to the compliance of this Resolution with the Constitution and issued a Decree suspending its force pending the Constitutional Court’s consideration. At present no reforms have taken place.
Supporters of the transfer of the Committee’s powers to the MIA say that this will promote the creation of an efficient system since there will be a single body answering for all aspects related to migration. They point to the experience of other countries which have long had such practice.
However here one should not forget that in most European countries the Ministry of Internal Affairs is not an enforcement structure as it is in Ukraine. Opponents of the move maintain that the transfer of powers to the MIA, especially in this sphere involving the granting of asylum in Ukraine will lead to a worsening of the situation for refugees and asylum seekers. After all the MIA is the same State body which more often than not violates these people’s rights. This could lead to the whole institution of asylum in Ukraine being devalued. It our view there is a vital need for a separate State body dealing with all issues linked with migration and the granting of asylum.
At present the process of decision-making with regard to the granting of refugee status, just as before, remains excessively politicized and lacking in transparency. The bodies responsible for talking such decisions often base their assessment on what kind of relations Ukraine has with the applicant’s country of origin. From what the «Social Action» Centre has seen, there is a 90% chance that applicants from the Russian Federation or Uzbekistan will be turned down.
2. Review of legislation
The Verkhovna Rada on 21 June 2001 adopted the Law «On refugees» which sets down their special legal status. It was only on 10 January 2002 that Ukraine signed the UN Convention relating to the Status of Refugees and the Protocols to it. On 31 May 2005 some minor amendments and additions were made to the Law «On refugees». However the essence of the Law remained without change, as do the numerous failings which hamper its practical application. The main criticisms which must be levelled at the system for granting asylum are its lack of structure and order. This is linked with the fact that various aspects of the issue are dealt with by different and most often unconnected legislative acts. Moreover some aspects are not reflected in any of them at all. All of this leads to numerous violations of asylum seekers’ rights to abuses by employees of State bodies, in the first instance, police officers.
Article 26 of the Constitution states that: «Foreigners and stateless persons may be granted asylum by the procedure established by law. Article 106, Item 26 regarding the President’s powers reads as follows: «26) adopts decisions on the acceptance for citizenship of Ukraine and the termination of citizenship of Ukraine and on the granting of asylum in Ukraine»
It is considered that this provision was introduced into the Constitution to give the chance of granting asylum (literally, refuge) to particular well-known figures at the decision of the President; No law has ever been past regarding the granting of such «refuge». Any such mechanism, which has not been
This right is placed within the competence of the President would create unequal conditions for asylum seekers, which would be a form of discrimination. Furthermore, the text contains the term «prytulok» (asylum, refuge) which is not used at all in the Law «On refugees», and can thus not be used. The norm of the Constitution which sets out the priority of laws clearly places international agreements and conventions higher than domestic law. This does not stop executive bodies (the Prosecutor and police), as well, sometimes as the judiciary, from infringing them, using the failings of domestic legislation in those cases where norms of international law give broader scope for protecting the rights of refugees.
In 1996 changes were made to the Criminal Code removing criminal liability for people who have illegally crossed the State border if they did this in order to receive refugee status in Ukraine. However in practice, due to the lack of qualified translation, the possibility of applying for refugee status having crossed the broader are minimal for asylum seekers from many countries. They are thus detained and taken to so-called temporary holding centres for illegal migrants. It is only there, with the services of interpreters and employees of nongovernmental organizations that asylum seekers can submit an application to the relevant body to be granted refugee status.
Current legislation grants refugees more favourable conditions than other foreigners for obtaining Ukrainian citizenship. In the Law «On citizenship» refugees may apply for citizenship after having living in the country for three years, whereas the period is usually five years. In practice, however, employees of State bodies are prejudiced against refugees with this leading to the procedure for gaining citizenship between significantly dragged out. Therefore less than 6% of refugees have been able to obtain Ukrainian citizenship.
3. Procedure for receiving refugee status
The first step is submitting an application for refugee status to the district migration office. This same application may also be submitted to the Border Guard Service when crossing the border, or to a member of staff of the temporary centre for illegal migrants (the application must then be passed on to the nearest district migration office). The applicant must submit all available documents confirming his (or her) identify and story, together with the application. At this stage the migration service issues the applicant with the first type of identity papers where later a stamp is placed for registration of the place where he is staying, a referral for a medical examination and registration with the Department on Citizenship, Immigration and Registration (DCIR). It is important to note that the medical examination is supposed to be mandatory however no steps have been taken to create the necessary conditions for this. In Kyiv there is a specialized unit where medical examinations of asylum seekers are carried out, and medical services provided at all stages of the procedure, however this is not financed from either the State or city budgets, but by the International Organization for Migration (IOM) and the UNHCR. In other cities asylum seekers have to arrange with hospitals and pay for the medical examination themselves.
Migration Service officers also interview the applicant. This stage of the procedure should take 15 working days however practice shows that it is often longer, including because of the lack of interpreters. Yet for the asylum seekers to engage his own interpreter, the person needs to have a document certifying the relevant higher education which is a problem since it is often relatives or people they know who act as interpreters. After the conclusion of the first stage, the applicant receives a written response. This is usually a refusal to accept the documents for consideration as to whether to grant refugee status. In the event of a positive response, the second stage of the procedure which should take 2 months begins.
The decision to turn down the application at that stage can be appealed, either in the State Committee on Nationalities and Religion, or in an administrative court. It is at this time that an asylum seeker’s problems become acute. After being turned down, the identity document issued by the Migration Service ceases to be valid. The law envisages another type of document, confirming that a person is appealing against the refusal to accept his documents for consideration, however the legislators did not stipulate any timeframe, or, more accurately, they simply didn’t pay attention to the fact that it takes time to write an appeal. Therefore, during the period while the asylum seeker is preparing his appeal and submitting it to the court, and then approaches the migration office with a copy of the appeal in order to get a new document, he remains without any document confirming that he is within the procedure, and can become a victim of police detention, or even be expelled. It is also important to note that the legislators set out fairly strange timeframes for informing of a decision to turn the application down at this first stage. According to the law, the applicant should receive a response from the migration office within 7 working days, whereas the notification from the Department on Citizenship, Immigration and Registration about the refusal should be sent within 3 days. The staff of the Kyiv Migration Service followed a special path and drew up a standard text of such a notification to the DCIR – «we would ask you to check the legality of the given’s person being in Ukraine.» Thus, a check on the asylum seeker may be carried out at the place he’s living before he finds out about the refusal to accept his documents and before he has time to lodge an appeal with the court, not to speak of receiving a new type of document regarding the appeal, the issue of which, incidentally, is also frequently held up without reason.
The second stage of the procedure is analogous. In all there are four types of document issued at various stages of the procedure. This leads to bureaucracy, procrastination over issuing or extending them, the impossibility of registration of place where one is staying while there is no document and numerous problems with the police during checks of documents. Police officers make use of this and often pretend that they are seeing such «strange» documents for the first time, in order to extract bribes or detain asylum seekers for so-called infringements of Article 203 of the Code of Administrative Offences (overstaying one’s right to be in the country).
The practice of the «Social Action» Centre shows that the migration officers view asylum seekers a priori as potential labour migrants and people whose presence in Ukraine is highly undesirable. As a result of this, the majority of applicants are turned down at the first stage of the procedure.
One can thus state that instead of an institution for granting asylum, there is a practice of not granting it created by bodies whose duty is to provide an impartial consideration of asylum applications.
As already mentioned, the decision of the migration office is greatly influenced by the country of origin of the applicant and Ukraine’s relations with that country. One has the impression of totally politicization of the procedure for granting refugee status which is a violation of Ukraine’s international obligations.
It is also important to note that in breach of the Law «On Refugees», when issuing a refusal to grant refugee status or to accept documents for consideration, migration office staff do not particularly look for arguments but merely refer to items in that same Law. There are cases where decisions are changed, when a migration office decides to grant refugee status, but then the State Committee, controlling all decisions, responds by sending a letter with a decision to turn the person down, and giving as the reason that the granting of this status «can adversely affect Ukraine’s relations with the country of origin of the applicant».
· In one case (where the applicant is a citizen of Uzbekistan) which was reviewed by the Lviv Migration Office it was decided to grant refugee status. In accordance with the procedure, this decision was sent to the State Committee to be approved. It was returned from there with the resolution: «The Committee has decided to support the negative decision of the local migration office and turn down the application for refugee status.».
· During attempts to reform the State Committee on Nationalities and Religion (summer 2008), the «Social Action» Centre and partner organizations recorded cases where local migration offices refused to accept applications for refugee status, arguing that in the process of reform, they don’t know how to work and who they answer to. This is evidence of yet another violation, after all in the Cabinet of Ministers Resolution it was clearly stated that both bodies (the Committee and MIA) would jointly prepare a mechanism for the transfer of powers by September 2008, continuing their normal work until that time. It was only after several complaints from nongovernmental organizations and the mission of the UNHCR in Ukraine that local migration offices resumed their work on taking applications.
Besides the flaws in procedure, the Law «On refugees» also has several gaps which result in violations of the rights of refugees and asylum seekers. An important failing, in our opinion, is the lack of additional forms of defence. The law envisages only the granting or refusal to grant refugee status. If the person does not meet the set criteria, his or her application is rejected. Yet there are cases where a person may not be recognized a refugee, however he or she still needs international protection, and sending the person back to their country of original would be in breach of Ukraine’s international obligations, in the first instance, the European Convention on Human Rights and the UN Convention against Torture. . In such situations, many countries have additional forms or protection or auxiliary types of status. They can be called humanitarian, or, as in neighbouring Poland, «tolerant», or through some other time. The point is that the person who for various reasons does not fall within the category of refugee, but cannot be returned to their place of origin due to the well-founded fear that they could suffer torture and ill-treatment, or a threat to their life, receives leave to remain in the country until such time as the situation in his or her own country changes. Analogous forms of temporary status were once used in Ukraine in relation to people from Chechnya and Abkhazia. They need to be reintroduced.
Another major failing in legislation is the lack of any social help for asylum seekers and recognized refugees from the State. It is difficult to imagine what legislators were thinking about when they designated a once-off payment of material aid to the value of 17 UAH (a little of 2 USD) for people who have received refugee status. Even more incredible is the requirement to turn up in Kyiv to receive this amount. Besides the lack of material aid, there is no mechanism for providing temporary accommodation for asylum seekers.
The law speaks of special Centres where asylum seekers and their families should live while their applications are being considered, however in practice there is only one such Centre in Odessa designed for around 250 people which is clearly not enough. Yet another flaw is the lack of any programmes of social adaptation or integration for refugees into Ukrainian society. There are no State-run Ukrainian language courses which is a particular problem for those who have come from countries beyond the post-Soviet realm.
4. Unlawful deportations and extraditions of asylum seekers and recognized refugees
As in previous years there have been unlawful deportations and extradition of asylum seekers and recognized refugees.
Deportation of a person who had received refugee status
On 29 July 2008, in accordance with a decision taken by the Prosecutor General, the extradition took place of recognized refugee Oleg Kuznetsov (country of origin - Russian Federation). When extradited, Kuznetsov had refugee status in Ukraine, confirmed by a court.
On receiving a request for Kuznetsov’s extradition from the Russian Federation, the Prosecutor General lodged an application with the Administrative Court for the decision by the State Committee on Nationalities and Religion to grant Kuznetsov refugee status to be revoked. On 22 July the District Administrative Court turned down the Prosecutor General’s application and left the decision to grant refugee status unchanged. The Prosecutor General ignored this court ruling and, without giving Kuznetsov the right of appeal against the decision to extradite, handed him over to the Russian authorities.
Despite numerous protests to the Prosecutor General, the MIA, the President and Speaker of the Verkhovna Rada sent by human rights organizations, not one of them has acknowledged that Ukraine’s international obligations and refugees’ rights were violated. No investigation has been carried out into the extradition and nobody has been punished. .
Deportation of asylum seekers to their country of origin
In March 2008 the Ukrainian authorities forcibly deported 11 Tamil asylum seekers to Sri Lanka. They had all approached the UNHCR and were registered there. Six of them had filed applications to the migration service for refugee status in Ukraine.
At the end of January 2008 all of them were arrested by SBU officers. According to UNHCR, they were not given an interpreter or person to defend their interests. On 27 February 2008 a response came from the Khmelnytsky Migration Office turning down all six applications. The refusal was explained by technical reasons, infringements in how the applications were prepared.
On 29 February the Vinnytsa Human Rights Group received a phone call from one of the asylum seekers who said that he was being held in the Shepetivka Hotel, in the Khmelnytsky region and that before that he had been held in a police cell. He also said that they had not been given any food. He asked for help and said that they were afraid of being forcibly returned to their place of origin. All appeals from the UNHCR to the Ukrainian authorities to release all the men and grant them the possibility of using the procedure for receiving refugee status in Ukraine in full, including the right of appeal, were ignored. They were also not allowed to see the detained men.
At the beginning of March it became known that, in breach of the Geneva Convention on Refugees, they had been deported to Sri Lanka, despite being asylum seekers. The MIA Public Committee on Human Rights passed a decision to create a special working group to investigate this case, however this group has not yet made a single conclusion since its work is constantly being sabotaged by MIA employees.
At 7.30 a.m. on 4 December 2008 officers from the Holosiyivsky Police Station in Kyiv arrived at the place where asylum seeker from Uzbekistan Abdumalik Bakaev was staying and took him to the police station. He was questioned and made to sign a protocol of detention written in Ukrainian, which he doesn’t understand. People from the «Social Action» Centre were only able to find out where Bakaev was five and a half hours after he was taken away. The police station’s logbook registers his detention at 14.00. Bakaev had received legal assistance with regard to the procedure for seeking refugee status and the Centre signed an agreement with a lawyer to provide him with legal assistance. However despite this agreement, it was only at the end of the working day that the lawyer was finally allowed to see Bakaev and ascertain the reason for his detention. Police officers at the station said that there was a decision from the Prosecutor’s Office to detain him until the question of his extradition at the request of the Prosecutor General of Uzbekistan had been resolve. Despite a clearly fixed maximum period of 72 hours for holding somebody in custody, Bakaev was held in the police station for more than 96 hours. The police thus flagrantly violated the Criminal Procedure Code and Article 5 of the European Convention. On 8 December the Holosiyivsky District Court in Kyiv released Abdumalik Bakaev and effectively stopped the extradition given that the European Court of Human Rights has found it a grave violation of the European Convention to extradite people to Uzbekistan because of the widespread use of torture and other forms of ill-treatment in that country. Abdumalik Bakaev also applied to the European Court of Human Rights which on 18 December applied Rule 39 halting any possible extradition to Uzbekistan pending examination of his case by the Court
It should be noted that the use of Article 39 of the Regulations of the European Court of Human Rights has been an effective means of protecting the rights of asylum seekers. The Kharkiv Human Rights Protection Group, for example, has managed in this way to prevent the extradition of 16 asylum seekers to Belarus, Kazakhstan and the Russian Federation. Ukraine’s authorities have not once flouted such a ban from the European Court.
The case of Lema Susarov
On 16 June 2007 Lema Susarov, a 23-year-old from Chechnya, was detained by men in civilian clothes who Susarov believes were officers of Ukraine’s Security Service . His lawyer, Oleh Levytsky says that the men who detained him placed a bag over his head and he was taken away in an unknown direction, being subjected to beating and threatened with being handed over to the mercy of an «FSB Major». Susarov was only brought to a police station in the evening where he was, without any legal grounds, held until 25 June (rather than the 72 hours permitted in Ukrainian legislation). According to the official position from the police, Susarov was detained by police officers on 17 June. However a letter from the Russian Federation Prosecutor General’s Office - № 81/3-383-07 from 20.06.2007 to Ukraine’s Prosecutor General asserts that Susarov was detained by SBU officers on 16 June.
On 20 July 2007 the Solomyansky District Court in Kyiv sanctioned Susarov’s remand in custody. On 27 July Ukraine’s Prosecutor General took the decision to hand Susarov over to the Russian enforcement bodies. On 6 August the Kyiv Court of Appeal ordered that he be held in custody «pending resolution of the issue of his extradition». On 23 August the Pechersky District Court in Kyiv turned down his lawyer’s application to examine an appeal against the decision of Ukraine’s Prosecutor General to extradite Susarov.
Even before coming to Ukraine, Susarov had approached the UNHCR in Baku, Azerbaijan, where he received prima facie refugee status. Already after his arrest in Ukraine, on 23 August 2007, the Ukrainian regional representative office of the UNHCR confirmed the force of the previous decision, and recognized Susarov to be a mandate refugee. .
The search immediately began for a safe third country which would agree to grant Lema Susarov asylum and guarantee protection from unlawful extradition. UNHCR found a country by the autumn, and on 17 October Finland agreed to grant Susarov refugee status, yet Ukraine’s government refused to free him.
Susarov also applied to the Ukrainian Migration Service for refugee status and received the standard rejection. Appeals against the decision of Ukraine’s Prosecutor General to extradite him and the Migration Service’s rejection of his asylum application continued for a year. It was only on 3 July 2008 that the Kyiv District Administrative Court found the decision of the Prosecutor General to extradite Lema Susarov to the Russian Federation to be unlawful. That same day the Prosecutor General’s Office revoked the decision and released Susarov from custody. A few days later he began his new life in Finland
5. Violation of the principle of confidentiality in refugee cases
At virtually the same time as the illegal extradition of Oleg Kuznetsov, the Prosecutor General’s Office was guilty of yet another flagrant violation of legislation and international law, through handing the documents from confidential cases involving refugees to the country of their origin.
Kazakhstan nationals Z. Baisakov, Y. Baisakov, S. Gorbenko and A. Zhekebaev came to Ukraine in 2005 and applied for asylum. All of them received refugee status on 28 March 2006. In 2007 the Kyiv Prosecutor’s Office carried out a check and found that the decision to grant them refugee status had been lawful.
On 8 April 2008 the Kazakhstan Prosecutor General sent Ukraine’s Prosecutor General’s Office a request for legal assistance under the 1993 Minsk Convention in which it asked for original letters of opposition political leaders of Kazakhstan attached to the person files of those four refugees.
On 15 July 2008 an SBU investigator removed from the State Committee on Nationalities and Religion originals of letters containing an assessment of the situation in Kazakhstan and a conclusion regarding the political motives for the persecution of the asylum seekers.
In addition, at the request of the Kazakhstan Prosecutor Genera, several representatives of the State Committee were questioned regarding issues connected with the granting of refugee status to the above-mentioned Kazakhstan nationals.
At the end of July 2008 these originals of documents on the cases of refugees and the interrogation protocols of representatives of the State Committee were handed over to the Kazakhstan Prosecutor General’s Office.
At the present time these documents are evidence in a criminal case against Bolat Abilov, Leader of the «Azat» Party, Asilbek Kozhakmetov, Leader of the opposition movement «Shanirak» and Tolen Tokhtasinov, Head of the Kazakhstan Communist Party involving charges «of concealing a crime» this being reflected in providing information to Ukraine’s State Committee on Nationalities and Religion.
Providing confidential information on cases of refugees is an overt breach of Article 11 of the Law «On refugees» which states that «information given by the application is confidential».
The principle of confidentiality is a foundation of protection of refugees’ rights and its violation can lead to a breakdown of the entire system of protection of refugees. In its Opinion № 91(LII) – 2001 the Executive Committee of the UNHCR states that «The registration process should abide by the fundamental principles of confidentiality». It also stresses «the confidential nature of personal data and the need to continue to protect confidentiality»,
The passing of confidential information to the country of origin can lead to many undesirable consequences. The violation of this principle deprives refugees and asylum seekers of the possibility of freely and without fear justifying their applications for refugee status. It also prevents the competent bodies from receiving and assessing information from sources which are not under the control of the authorities in the country of origin of the people involved, since it puts any person (relatives, friends, or other observers) in that country in danger of persecution. Furthermore, as a result of the passing of information to the country of origin, the asylum seekers themselves can, from that moment, have grounds for well-founded fears of being returned to their county of origin.
6. The most widespread infringements of the rights of refugees, asylum seekers and migrants
The right to liberty and personal security
Refugees and asylum seekers are constantly subjected to unlawful detentions by law enforcement officers. The most common reason for detaining somebody is Article 203 of the Code of Administrative Offences on infringing the rules for being in the country. This involves the lack of registration which is often connected with not having a certain type of identify document at various stages of the procedure for getting refugee status and the fact that you can’t get registration without the document. This is punishable by a fine of 340 to 680 UAH which is a fairly large amount for an asylum seeker. There is thus a situation where a legislative flaw (a system of four types of document and details in issuing them) leads to wide-scale infringements of the rights of asylum seekers and migrants.
According to figures from the Department on Citizenship, Immigration and Registration during 2008 57 thousand foreign nationals and stateless persons were penalized under that Article of the Code. 10 thousand 687 had their period of stay in Ukraine shortened, and 242 were placed in police special institutions..
In their fight against illegal immigration, police bodies often use unwarrantedly harsh punitive measures against migrants and asylum seekers. Decisions are made to expel them or prohibit their entering the country without taking into account their family or other circumstances – studies, work, etc.
For example, on 26 September 2008 the Human Rights Aide to the Minister of Internal Affairs in the Luhansk region, Valeria Arkhipova was approached by Jordanian national Mr. C. The latter stated that for an infringement of the rules of employment for foreign nationals in Ukraine, the Luhansk Regional Department of the MIA had taken the decision to expel him from the country and prohibit him from re-entering for one year. He considered the decision to be unjustified as well as cruel since he is married to a Ukrainian citizen and they have a small child, and there would be no possibility for his family to leave with them. Mr. C. was advised to appeal against the decision with the court and was given consultation on this issue. On 13 October the Luhansk District Administrative Court revoked the decision to prohibit his entry for a year.
The police also often use Article 268 of the Code of Administrative Offences which makes participation in the examination of ones case mandatory, with this making it possible to detain a person before the court ruling. Such detentions often take place in the evening and therefore asylum seekers are forced to spend the night in the police station. Even having an agreement for legal services signed by the lawyer of a nongovernmental organization does not allow the lawyer to see his or her client before the court hearing.
This situation leads to asylum seekers living in constant fear, hampers their free movement around the city and use of public transport, and forces them to often pay fines or bribes to police officers.
Migrants, asylum seekers and refugees of «non-Slavonic appearance» often get stopped and have their documents check for no good reason by the police (so-called ethnic profiling). No explanation is given for why they have been stopped, and their passport documents or other identity papers are taken away. Money or a «present» is then demanded for releasing the person or returning the documents.
In 2008, from 9-15 April in Kyiv law enforcement agencies carried out the latest raid against illegal immigrants entitled «Operation – migrant». An asylum seeker from Uzbekistan was detained by a patrol officer near the railway station. The person had a valid identity document confirming that he had applied for refugee status as well as registration. In Chernihiv where he was living at the time, together with his family (he had come to Kyiv on some business). In spite of the document, the patrol officers began threatening to arrest him and demanding money for his release..
Practice shows that most cases where asylum seekers are detained take place with various infringements of established procedure, for example::
− being deprived of the right to inform their relatives or a lawyer about their whereabouts;
− being deprived of the right to be informed about the reasons and grounds for their being detained (especially typical in cases where the person detained doesn’t speak Ukrainian or Russian);
− being deprived of the right to be informed about their rights;
− being deprived of the right to read the material of their case or the protocols (this is also connected with the language problem which gives rise to yet another infringement, since the protocol is drawn up in Ukraine meaning that the asylum seeker in signing it usually doesn’t understand what it says;
− being deprived of the right to independently defend themselves and argue their position’
− being deprived of the right to use the services of a lawyer (police officers frequently demand that lawyers provide a notarized power of attorney, this being impossible for various reasons, including the lack of a document certifying identity and an identification code without which it is impossible to carry out notary activities).
As MIA officers themselves say the productivity of work carried out by police departments with foreign nationals is usually evaluated by the number of foreigners identified and punished through administrative procedure. In order to get figures in this area and create a positive impression as to their activities with the management, police officers are effectively compelled to use unwarrantedly harsh measures with respect to foreigners who with their actions have, in one way or another, infringed the rules for their stay in Ukraine. Changes are therefore needed in the priorities of the work of the police with respect to foreigners with these changes being enshrined in VIA normative documents.
The right to work
According to Article 26 of the Constitution, foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine. Article 8 of the Law «On employment of the population» and Article 8 of the Law «On the legal status of foreigners and stateless persons», foreigners have the right to carry out work activities on Ukrainian territory.
Despite the penchant for enormous amounts of detail which legislators demonstrate, categories like asylum seekers (who have just lodged an application for refugee status, or those who are at various stages of the procedure or appeal) are not mentioned at all in legislation and are in practice deprived of the possibility of officially finding work. It should be noted that the period during which it is decided whether or not to grant refugee status is fairly long. All that time a person does not have the right of officially work and receives no material assistance from the State.
However there is yet another legislative complexity: according to Articles 18 and 20 of the Law «On refugees», people with respect to whom there have been decisions to process documents for resolving the issue of whether or not to grant them refugee status, have the right to temporary employment. There is no special interpretation of this term in the Law however according to the general rule, this means that such people have the right to work during the period of time that they are legally resident in Ukraine.
The lack of a clearly defined mechanism for exercising the right to work for asylum seekers leads to opportunities for abuse by law enforcement agency staff and to constant refusals by employers to officially employ the person. During raids in search of illegal immigrants, police officers frequently detain asylum seekers without making any effort to distinguish between the two groups of people. They are detained on the basis of the same notorious Article 203 of the Code of Administrative Offences. It should also be pointed out that according to the Law «On refuges» it is the duty of a specially authorized State body on issues of employment and social policy to provide assistance in seeking work to people in respect of whom a decision has been taken to process documents for taking a decision on whether or not to grant refugee status.
However the text of the law contains the phrase «where possible» which allows this body to not fulfil its obligations at all. According to Article 5 of the Law, the Cabinet of Ministers should have approved procedure for finding work in the case of people who have received refugee status and those who are within the application procedure, however to this day no such procedure has been adopted or even drawn up. The said norm of the law has no meaning and exists only on paper.
The right to a fair trial
Asylum seekers and refugees encounter numerous problems with regard to exercising the right of access to justice. This is first and foremost linked with the low level of competence of judges on issues involving refugees and asylum seekers, as well as a prejudiced attitude by judges against asylum seekers, their unwillingness to delve deeper into the details of the case and problems of translation.
Among the most widespread violations, the following should be noted:
– not providing an interpreter and language problems, since court hearings are largely in Ukrainian and not understood by the asylum seekers and refugees. They have the same problem with the majority of documents of the case written in Ukrainian;
– systematic refusals to hold open court hearings in cases over refugees;
– problems with the use of the services of a bar or other lawyer since in the majority of administrative cases, the court decides whether to allow a defender;
– It is impossible to organize power of attorney on behalf of an asylum seeker in order to represent their interests since you need a passport and identification code in order to get this notarized, whereas a lot of asylum seekers simply don’t have these (during the application procedure their passport remains with the migration service, and you can’t get an identification code without showing your passport);
– Problem situations created by the State, and not by the asylum seeker are constantly ignored.
Freedom from discrimination
Asylum seekers and refugees constantly encounter discrimination in everyday life.
The worst consequences are as a result of unmotivated refusals by the law enforcement agencies to accept and register reports of crimes where the asylum seeker or refugee suffered from a racially motivated crime. Refusals to accept documents is often explained as being because the applicant is guilty, or the police offers cannot understand what’s going on since after all the applicant does not know Ukrainian.
In April 2008 an underage asylum seeker from Afghanistan was brutally beaten by young neo-Nazis in Kyiv. When he was already unable to defend himself and lying on the pavement subjected to the blows from the thugs, a car with police officers stopped. One of the police officers got out and asked what was happening. He got the following reply: «We’re beating a coon because the police are doing nothing to clean Ukraine of this dirt». The police officer than ordered the victim to show him his documents. At that moment the asylum seeker had received a refusal from the migration office and had appealed against this to the court, however due to the typical delays in issuing documents he was without any document The only thing that he had on him was a letter from the UNHCR. Then the police officers released the assailants, detained their victim and took him to the police station. There the asylum seeker spent the night, receiving no medical care despite bleeding. The next day the police officers took all the money he had and drove him to another district of the city where they left him.
Besides discrimination of refugees and asylum seekers by police officers, there are cases when high-ranking officials or politicians see fit to make inappropriate statements which can create a misleading idea about refugees and asylum seekers in Ukrainian society. One can cite a prominent politician and former Head of the State Committee on Nationalities and Religion, Gennady Moskal:
«Human rights activists defended those ones from Sri Lanka. As if Ukrainians’ rights weren’t violated. They hung about Ukraine for a year. In a year they were caught, already packed into a van and heading for the border crossing. They all claimed to be supporters of Tamil-Ilam. Sorry, but for a year did they tell anyone about that? Who can check that in Ukraine?
Here the only refugees can be from Trans-dniester. Moldova is safe to live in, the rest are members of the European Union. Belarus, well there, maybe they persecute people. They’re all here. And we are now giving all Limonov supporters (members of the Russian National Bolshevik Party founded by Edward Limonov – translator) refugee status. When they ripped down our flags in Sevastopol and chanted «The Crimea is Russia» we tried and deported them. Now the political climate has changed. We shouldn’t follow the politics, we should look how this person complies with the law and the Geneva Convention? Yes? Yes/ No? – My dear, go and solve all these problems with your Government.
We should put a stop to these fraudsters. As it says in the law: a person crossing the border of Ukraine should say immediately at the border that I’ve come to Ukraine to get refugee status. To the State Border Guard, or the Ministry of Internal Affairs, or the migration service, anyone. Even go to the nearest village council and state it. They all talk about refugee status only when they’re caught.»
Mr Moskal as a former head of a State body which deals with decisions regarding refugee status should know the procedure well (that is described above in the text and does not require making an application specifically» to the State Border Guard, or the Ministry of Internal Affairs, or the nearest village council) and understand that a person cannot always submit an application even to the migration office due to a lack of knowledge of procedure, or an interpreter to organize the documents and carry out an interview. It is also rather strange, not to say unprofessional, to hear thoughts from a politician about which countries refugees can come to Ukraine from, and from which they can’t. On the basis of all this it is already clear that Mr Moskal does not know the Geneva Convention.
The right of freedom of movement and freedom to choose ones place of residence
Asylum seekers are deprived of the right to freely choose where they live in Ukraine after they have submitted their application for refugee status. Despite the fact that the Law does not contain a direct ban on changing ones address, in practice change of registration and transfer of a migration case from one local migration office to another is not possible.
An asylum seeker from Uzbekistan lodged his application for refugee status in Lviv. After some time due to family circumstances he moved to Kyiv. He sent the Lviv Migration Office a request to transfer his case to Kyiv. He received a refusal without any indication of the reasons.
In the Law this point is not mentioned at all and there is no mechanism for resolving it. That means that it all depends on the competence and will of the migration offices.
The right to education
Legislation envisages the right of refugees to receive education however in practice this category of people cannot exercise this right. This happens before the norms of the Law «On refugees» and other normative acts regulating the status of refugees are not coordinated with those of the Law «On higher education». This law does not envisage taking the special status of the refugee into account and does not allow the possibility of receiving free higher education. They can apply to a higher educational institution only on general terms, as foreigners, which means that they can’t receive free higher education or that they have to pay more than Ukrainians, since the rates for foreigners are higher than those for Ukrainians. Bearing in mind the difficult conditions they live in, the problems with finding work and the lack of social assistance or adaptation, the right of refugees to receive a higher education are mere words with no relation to reality. The only possibility for refugees or members of their family to receive access to free higher education is to wait not only until he or she gets refugee status, but also receive Ukrainian citizenship which at the most optimist estimate will take no less than 5-6 years.
Besides the lack of access to higher education, refugees are deprived of the opportunity to learn Ukrainian since there is no State programme of adaptation of refugees and asylum seekers or free courses in Ukrainian.
6. Conclusions and recommendations
Single National migration policy needs to be created as a matter of urgency, together with a single body responsible for its implementation..
In order to ensure that the rights of asylum seekers are observed, the following changes to legislation should be made, (with separate legislative acts brought into line with each other):
1) Remove the present system of four types of document and create a single form where the stage in procedure would be indicated. Local migration offices would be responsible for making amendments to the document.
2) Establish a clear time frame for informing asylum seekers of a refusal to accept their application for consideration or to process their documents for receiving refugee status so that they receive such information in a timely manner and have the possibility to appeal against decisions.
3) Introduce provisions to ensure that a decision to deprive a person of refugee status may only be taken by a court with the exception of cases where a person has received Ukrainian citizenship, or voluntarily decided to leave the country.
4) Clearly stipulate in the Law «On refugees» and other related laws the right of asylum seekers to work. .
5) Introduce an effective mechanism of social adaptation for refugees, give them the opportunity to learn Ukrainian, to re-qualify. Appoint the relevant body responsible for this and made the appropriate changes to the State budget.
6) Establish the size of material assistance to asylum seekers and add the relevant articles to the State budget. This material assistance should be paid monthly
7) Bring into line with each other the Laws «On refugees» and «On higher education» so that refugees and their children are able to receive higher education free of charge competing for places with Ukrainian students..
8) Stipulate the duty of the State to ensure temporary social housing for asylum seekers. Establish periods and procedure for providing such housing.
Necessary changes to administrative practice:
1) Stop unwarranted detention of asylum seekers and refugees on charges of infringing Article 203 of the Code of Administrative Procedure
2) Stop the practice of forced expulsion and extradition of asylum seekers and recognized refugees. Those responsible must be punished..
3) Train staff of local migration offices to process cases of asylum seekers and collect information in a qualified manner about the country of origin of the applicants..
4) Ensure access for the legal representative of the asylum seekers during examination of their case in the migration service, police or court. Provide interpreters in such cases. Ensure full access to all material of the case.
5) Create an efficient mechanism so that asylum seekers and refugees can receive an identification code..
 By Iryna Fedorovych, Civic Centre “Social Action”
 V. Batchaev: Protection of the rights of foreign nationals, refugees and asylum seekers – in the book “Human rights in the work of the Ukrainian police” – Kharkiv, Prava ludyny, 2009. –p. .136.
 More details about the planned reorganization later in the text .
 2008: Regional Report on Belarus, Moldova, and Ukraine, UNHCR
 Draft Law on the Principles of Ukraine’s State Migration Policy № 3158 from 16.09.2008, Verkhovna Rada portal: http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=33324.
 Cabinet of Ministers Resolution from 18 June 2008 № 558 “Some issues of State management in the area of migration policy”
 The procedure for granting refugee status is set down in detail in Articles 9-14 of the Law “On refugees”.
 Examples here and later are taken from real cases which the “Social Action” Centre and other organizations were dealing with
 The Cabinet of Ministers issued two special resolutions regarding victims of internal regional military conflict: № 119 from 16.02.95 “On measures to provide assistance to people forced to leave their place of permanent residence in the Russian Federation and come to Ukraine” and an analogous resolution № 674 from 26.06.96 regarding people who had arrived from Abkhazia. Both resolutions have ceased to be in force.
 The Prosecutor General has overstepped domestic and international law. What next? - Open Appeal from the Ukrainian Helsinki Human Rights Union 31 July 2008 http://helsinki.org.ua/en/index.php?id=1217414538 ; Position of the Ukrainian Helsinki Human Rights Union regarding the extradition of a refugee by Ukraine’s Prosecutor General http://helsinki.org.ua/en/index.php?id=1217838754; President’s Secretariat sees no problem in extraditing a refugee http://khpg.org/en/1220922263 .
 The case was supported by the UHHRU Strategic Litigations Fund. For more detail, see: “Human rights prevail in Susarov Case” http://khpg.org.ua/en/index.php?id=1215093514 Un-sign international conventions or start observing them http://khpg.org.ua/en/index.php?id=1213060810 Green card for Lema Susarov? http://khpg.org.ua/en/index.php?id=1188396854
 This part of the section by Arkady Bushchenko, Bar Lawyer and Head of the UHHRU Board
 V. Batchaev: Protection of the rights of foreign nationals, refugees and asylum seekers (full reference above) – p. 136.
 Ibid, p. 139.
 It is important to note that such raids are regular and carried out not only in Kyiv, but in other large cities. See, for example, information about Odessa at: http://odessa.umvd.gov.ua/struktura/Vgirfo/operacyi.htm. The victims of such raids are not only refugees or asylum seekers, but any other people who don’t look Slavonic, regardless of whether they are legally in the country or not..
 . Batchaev: Protection of the rights of foreign nationals, refugees and asylum seekers, p.145.
 At present the decision is taken by the State Committee on Nationalities and Religion and only then can it be appealed against in court