UNHCR comments on new refugee legislation

UNHCR welcomes approval of the Law of Ukraine on Refugees and Persons in need of Complementary or Temporary Protection, encourages further revision to comply with international standards

UNHCR sees the adoption of new refugee legislation as a very positive step in the process of building up a fair asylum system that will be in full compliance with international standards and the best practices of the European Union.  It is noted that the EU Action Plan on visa liberalization with Ukraine specifically calls for “adoption of legislation in the area of asylum in line with international standards (1951 Geneva Convention with New York Protocol) and EU standards, providing grounds for international protection (including subsidiary forms of protection), procedural rules on examination of applications for international protection, as well as rights of asylum seekers and refugees.”  

The new draft legislation goes a significant distance toward meeting international and EU standards for asylum.  These will result in a system that functions more smoothly, with greater procedural fairness, and that facilitates the integration of recognized refugees into Ukrainian society.  These positive developments include:

•    The introduction of a unified asylum-seeker certificate will ensure that asylum seekers remain documented throughout the period where their asylum claim is under consideration.  This will provide them with valuable protection from removal, among other things, as well as reduce the cumbersome and costly bureaucracy of renewing documents.  

•    The draft legislation stipulates that minor children are recognized as refugees simultaneously with their parents.  This will enhance the protection of family unity.  In the past, even if parents were recognized as refugees, their minor children would have to re-apply for refugee status upon turning 16, running the risk that they could be rejected and deported from the country where they had grown up and where they had family ties.     

•    The draft legislation creates a more stable foundation for recognized refugees’ integration into Ukraine by granting them permanent residence immediately upon recognition as refugees and issuing refugee certificates valid for five years.  Both these steps will assist recognized refugees in practical matters, such as seeking employment and obtaining banking services.  They will also give refugees a stronger incentive to commit to integrating into a Ukrainian society which has expressed its readiness to accept them as long-term residents.

However, while the draft legislation takes several progressive steps in refugee protection, it does not yet meet EU and international standards on two key points and could be further fine tuned on a number of relevant matters that would further improve Ukraine’s legislative framework.  

First, while in general UNHCR welcomes the introduction of complementary protection in the draft legislation, the definition of complementary protection is considerably narrower than that specified in EU standards.  Notably, the Ukrainian draft legislation does not foresee the grant of complementary protection to persons who would face a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” as provided for in Art. 15(c) of the EU’s Qualification Directive (see Council Directive 2004/83/EC of 29 April 2004).   UNHCR remains concerned that persons with real international protection needs, particularly those fleeing armed conflict, will not be granted protection in Ukraine.  

Second, according to the 1951 Refugee Convention, UNHCR has the duty to supervise the application of the Refugee Convention.  In this respect, national legislation should provide for UNHCR’s access to persons of concern, as well as an advisory role in refugee status determination.  Such a provision would allow for greater cooperation between the Government of Ukraine and UNHCR, as well as European partners, in strengthening the asylum system in Ukraine.  This would also reflect EU legislation, including notably article 21 of the Asylum Procedures Directive, which permits UNHCR to express its views at any stage of the asylum procedure.

It is hoped that the responsible authorities will continue to take into account UNHCR’s views and that the draft refugee law will still amended before it is signed into law. Moreover, adopting a firm legislative base will allow the Government to manage the administartive reform process in setting up a central asylum authority that will be in a position to extend international protection to those in need and in line with Ukraine’s international obligations. UNHCR remains hopeful that the Refugee Department of the State Migration Service will become fully operational at an early date so that ongoing programmes, including on the local integration of refugees will be implemented as foreseen.    

UNHCR stands ready to cooperate with Ukrainian authorities in supporting their actions to implement the new Refugee Law, thereby providing for the protection of refugees and other persons in need of international protection.