Human rights in Ukraine 2011. XXIV. THE RIGHTS OF IMMIGRANTS IN UKRAINE
2011 was the year of Ukraine’s intentions to improve domestic legislation regulating the stay of immigrants in the country. The human rights community kept stressing the necessity of such changes and elimination of legal gaps and conflicts in the relevant regulations; however, the steps taken by the government to optimize the relationship model “state/foreigner” are contradictory and ambiguous in terms of the rights of immigrants. The amendments to the acts of legislation, which in 2011 regulated the immigrants’ stay in Ukraine, were fragmentary and selective and did not contribute to strengthening the legal protection of foreign citizens against possible corruption in public bodies and arbitrariness of power structures. The initiatives happened to prove that the general vector of Ukraine’s immigration policy was gradually but steadily shifting towards strengthening the legal pressure on immigrants and ensuring total control over their stay in the country, which made Ukraine to balance on the brink of breach of universally recognized international norms of human rights and freedom of migrants.
It is likely that this process was influenced by disappointment in some European countries about the principles of state multiculturalism and passive tolerance that during 2011 showed up in public statements of European leaders and in their specific management decisions. However, compared with Europe, the immigration situation in Ukraine is somewhat different, and, currently, the government has no weighty and clearly justifiable reasons for cultivating aggressive awareness towards immigrants. Such actions not only inappropriate but also dangerous, because recently the Ukrainian government, at the instigation of power structures, treats foreigners with significant bias, and the policy of “liberalism with muscles,” which is now professed by Ukrainian authorities, traditionally contains more muscles than liberalism.
The human rights activists have repeatedly pointed to the obvious farfetchedness of the attempts of both the government and politicians to regard the entry of foreign workers in Ukraine as a serious threat to national interests, cause of ethnic “dilution” of Ukrainian nation and an important factor in worsening crime situation in the country; there existed no case-based reasoning, while the complete and unbiased analysis of official statistics testified to the contrary.
According to the Ministry of Internal Affairs, as of 01.10.2011 there were 300,142 foreigners in Ukraine. Thus, the percentage of immigrants to the indigenous population is only 0.6, while, according to demographers, the critical mass of immigrants is 10–12% of population.
In general, there are 206,951 resident immigrants in Ukraine, but the majority of them (87%) are FSU nationals, including citizens of Russia, Belarus and Moldova (68%).
The migrantophobia and exaggeration of the threat of stay of foreigners in Ukraine may be exemplified by panic prophecies of some officials and politicians about the hundreds of thousands of illegal migrants swallowing Ukraine in 2011 in connection with implementation by Ukraine of its agreement with the European Community on readmission. According to the Administration of State Border Service of Ukraine, pursuant to the provisions of this Agreement, the competent authorities of the EU Member States suggested for admission in 2009 712 foreigners, in 2010 398, and for 9 months of 2011 179 foreigners.
The official statistics do not confirm the widespread public opinion that a large number of foreigners, who arrive in Ukraine, remain in the state. According to the Administration of State Border Service of Ukraine, during 9 months of 2011 18,828,993 foreigners and stateless persons (hereinafter — the foreigners) were let in the country. During the same period 18,718,909 foreigners were registered leaving Ukraine.
The statements about the growing volume of illegal migration of foreigners in Ukraine are at variance with the facts. According to statistics of the Ministry of Internal Affairs of Ukraine, the number of illegal immigrants detained for 9 months in 2011 (10 922) did not increase and fell down by 3.3% compared to the same period in 2010. The average fullness of temporary detention stations for foreigners maintained by the State Border Service during January-September 2011 amounted to 30-50% depending on the region. The similar situation is with the fullness of MIA special institutions for detention of illegal migrants. The Chamber of Accounts of Ukraine states: “…the capacity of temporary detention centers for illegal migrants is much higher than the actual need for such facilities, the cost of their maintenance, costs of service personnel have steadily increased. Currently there are two guards per one illegal migrant…”
The statistical data also refute the thesis of arrival in Ukraine of a large number of illegal migrants from Africa, Southeast and Central Asia, which in future intend to get to Western Europe. In January-September 2011, in Ukraine, the detained illegal immigrants made 10 922, 88% (9 592) of which were FSU citizens, which usually did not use our country as a transit zone to go to the EU countries.
It is noteworthy that, according to official data of MIA of Ukraine, for 6 months in 2011 the law enforcers found 43,458 violations by foreigners of the rules of the host country, or by 4.4% less than during the same period of 2010. The analysis of the origin of foreign offenders of Ukrainian legislation indicates that 80% of them are also FSU citizens.
According to the statistics of the Ministry of Internal Affairs, for the first 9 months of 2011 on the territory of Ukraine foreigners committed 2,989 crimes, i. e. 0.7% of reported crimes in our country (433 586). During this same period, the law enforcers collared 191,808 offenders, of which only 1.3% (2 436) were foreign nationals and stateless persons. The percentage ratio of foreign criminals to foreign citizens registered with the Ministry of Internal Affairs (those that officially applied for extension of stay in Ukraine, for immigration permits, temporary residence permit in connection with employment, as well as delayed illegal migrants) is as small as 0.8%. The ratio of foreign criminals to the total of foreigners visiting Ukraine in January-September 2011 as even more convincing: 0.01%. Therefore we may conclude that immigrants do not shape the criminal situation in Ukraine.
Relative to the threat of atypical infectious diseases supposedly spread by immigrants: no official statistics confirming this fact in Ukraine was ever published.
Notwithstanding the above data; tampering with statistics (focusing only on the total number of foreign offenders without an indication of their countries of origin, selective publication of data on the impact of immigrants on these or other negative social phenomena, hiding the dynamics of immigration situation), they use media to dump on Ukrainian society overtly xenophobic warnings like “Beware of aliens!” and instill a sense of distrust of immigrants. With the tacit approval of government, they drum into the ordinary citizen’s head an artificial negative image of an immigrant: potential offender from a distant land, carrier of dangerous infectious diseases, contender for your job and dwelling, people with incomprehensible and therefore hostile outlook.
Such unreasonable government policy and the actual refusal by the government to combat xenophobia, including printed media, not only spreads all sorts of everyday phobias towards foreigners from the Caucasus, Africa, Central and South East Asia, but also stimulates discrimination and radical sentiments, pushing the society toward the commission of “hate crimes” against foreigners.
On November 1, 2011 a group of approximately 40–50 young men in masks armed with bats and rods committed mass assault and battery of foreigners in the city of Luhansk. The first object of their attack was a shaurma booth. The hoodlums encircled it and chanted offensive xenophobic slogans, and then entered inside through the broken shop-window, started beating the vendor and destroying property and production equipment.
Then the goons rushed into the campus of Luhansk Pedagogical University and proceeded to dormitories, where foreign students lived, selectively beating non-Europeans on their way. As a result, four foreign students were hospitalized with injuries of varying severity.
However, continuing to justify the need to strengthen the legal pressure on foreigners with the help of already familiar theses about significant number of immigrants coming to Ukraine, possibility of their impact on criminal and sanitary-epidemiological situation in the country (only possible, but not by the influence as such) and artificially blown-up problem of illegal migration, in 2011 the state adopted a number of legal documents, which were widely advertized in the media and pictured for society as a kind of “ring-buoy” against the invasion of foreigners in the state.
2. Concept of Public Migration Policy
The concept of state migration policy was approved by the Presidential Decree No. 622/2011 on May 30, 2011. Certainly, the very development of this concept was important for Ukraine and welcome step forward, as far as there was a long overdue need in an act determining the strategy of the state in relation to migration. The UNHCR noted that the Concept contains important principles of migration and asylum management, and if the concept would be implemented in full, together with the abuse-preventing measures, this document might create favorable conditions for the development of national migration-and-asylum legislation, according to international standards.
The concept rightly indicates that the Ukraine’s migration policy should zero in on the “creation of conditions for the smooth implementation of the rights, freedoms and legitimate interests of workers and their carrying out of obligations required by law” and declares that there is a need to concentrate on a number of issues important for immigrants including as follows:
— Introduction of legislative mechanism of additional and temporary protection of foreigners and stateless persons;
— Determination of immigration quotas in Ukraine, taking into account both current and future demographic situation and situation on the labor market;
— Creation for foreigners and stateless persons lawfully residing or temporarily staying in Ukraine of conditions for free movement and free choice of residence, as well as free leaving of the territory of Ukraine;
— Strict control of racism, xenophobia and religious intolerance, forming tolerant attitude towards migrants;
— Encouraging migrants to rational territorial settlement based on socio-economic and demographic situation in the regions;
— Protection of foreigners and stateless persons in Ukraine, which are trafficking victims;
— Creating favorable conditions for temporary entry to Ukraine for foreigners and stateless persons for tourism purposes, for learning, doing business, etc;
— Ensuring the implementation of internationally recognized principles and norms of international legislation in order to protect refugees and persons in need of additional or temporary protection or asylum in Ukraine, taking into account the principle of non-expulsion;
— Adaptation to Ukrainian society of foreigners and stateless persons permanently residing in Ukraine, as well as persons, who were granted refugee status in Ukraine.
— Raising awareness of law enforcement officers with Ukraine’s international obligations concerning human rights.
However, the existing realities of residence of immigrants in our country do not allow to fully share the optimism of the UNHCR on the approved Concept and the expressed reservation “…if the concept would be implemented in full, together with the abuse-preventing measures” becomes especially important in this context.
The obvious drawback is incompleteness of the Concept, including its role of a basic act, which should provide adequate treatment of immigrants and asylum seekers by public bodies and prevent violations of their rights and freedoms, especially by law enforcement agencies. This version of the concept is nothing but “declaration of good intentions”, because it does not offer any preventive instruments against corruption, bureaucratic indifference and official arbitrariness, which accompany immigrants after arrival in Ukraine. The above humanistic provisions of the Concept remain a dreamland utopia for foreigners, because in practice they cannot be fulfilled since they contradict the regulations which implement the state strategy of “squeezing” immigrants out from Ukraine.
As expected, the concept makes use of scarecrows of “illegal immigration” as a real threat to national security of Ukraine, although the falsity of such point is obvious. Due to unsound and, to some extent, radical domestic policy intended as a showcase during two last presidencies, in our country there exist two different societies: the Ukrainian-speaking West and Russian-speaking East and South, whose representatives, having one citizenship and living in one country, in fact belong to their own separate groups, have opposing systems of values and treat one another in an unfriendly manner. This is a major threat to the existence of the Ukrainian state and nation, and it is this very problem, and not a limited social influence of a group of immigrants, that should draw attention of the government and politicians.
However, the wrongly placed accents in priorities of strengthening national security led to the fact that the Concept contains an unreasonably large number of provisions aimed exclusively at the set-up of brutal control of immigrants, which can grow into their prosecution. Taking into account the traditional concentration of power and law enforcement agencies of Ukraine on implementation of primarily punitive functions and inherent bias of executive authorities to ensure their performance at any price, this threat is very likely and significant. Moreover, the very message of the Concept intended to combat illegal migration will be used by law enforcement agencies to justify their exerting pressure on immigrants and breach of their rights and freedoms.
Thus, the concept envisages the implementation of the following measures with clearly defined “strong-arm” component:
— Improvement of public authorities’ performance in combating illegal migration;
— Strengthening responsibility for offenses related to illegal immigration, and preparing appropriate legislative proposals;
— Ensuring control over migrants entering Ukraine for employment or training;
— Improvement of processing and collecting of statistical information on foreign nationals and stateless persons legally residing or temporarily staying in Ukraine;
— Develop and implement an effective mechanism of monitoring of foreigners and stateless persons arriving in Ukraine in order to establish if they have means to stay in Ukraine and leave its territory;
— Implementation of data-logging concerning foreigners and stateless persons entering Ukraine, especially those who come from the countries that are not covered by visa-free agreements;
— Implementation of data-logging containing biometric info on foreigners and stateless persons entering Ukraine;
— Increasing the effectiveness of border and internal migration control.
Without any doubt, now Ukraine requires the introduction of new managerial decisions aimed both at the unification and improvement of background info on the stay of foreigners on its territory, and improvement of illegal migration control, as a kind of criminal business of transporting people across the border. However, there is a need for balanced decisions and, most importantly, balanced legal rules intended to protect the rights of immigrants from possible harassment and pre-determined ways of monitoring of the implementation of such rules. After all, the experience of monitoring of the law enforcement system of Ukraine shows that the Ministry of Internal Affairs, Security Service of Ukraine and Border and Migration Service of Ukraine may interpret the Concept of public migration policy, as an additional governmental “carte blanche” to intensify their already sufficiently aggressive treatment of immigrants. It may look paradoxical, but the adoption of the Concept can trigger new violations of the rights of foreigners in Ukraine, as far as the function of control, coercion and punishment, rather than advice and assistance in adaptation have always been among first priorities of the domestic law enforcement.
3. The observance of the rights of refugees and persons in need of additional
or temporary protection
The Law “On refugees and persons in need of additional or temporary protection” (No. 3671-VI of 08.07.2011) is the legislative act, which is really able to promote the rights and freedoms of immigrants in Ukraine. Among other innovations in the regulation of immigration processes, this very document is the most civilized and humane from the standpoint of international law.
It should be noted that the introduction of legislation permitting in a clear and balanced way all immigrants, who had to leave their country of residence, to realize in Ukraine their right to protection and dignified existence; year by year the paramount necessity of this issue becomes evident. The treatment of refugees by Ukrainian law enforcement agencies has long been based on distrust and prejudice, when the intents of a fugitive immigrant to escape persecution and save their lives upon entering our country are regarded as possible threats to national security and public order. Such identifying of refugees with potential offender, results in numerous violations of refugees’ rights in law enforcement agencies, including the deliberate use of physical violence and imprisonment.
And 2011 became no exception to this shameful rule.
According to “Amnesty International”, in March 2011 border guards resorted to raw treatment of 14 Afghan refugees who sought asylum in Ukraine. The immigrants were not given a chance to take a review against a judgment to refuse the refugee status and decision to deport them. The foreigners maintained that they denied the right to use the services of an interpreter and in the process of submitting their applications for refugee status and for deciding on their expulsion, they were forced to sign documents drawn up in incomprehensible language. Some citizens of Afghanistan were not allowed to attend the trial, which considered their case, and all detainees complained that they were raw-treated during their detention and transportation to the city of Kyiv. Three of them resorted to self-injury as a kind of protest
On March 2, 2011 “Khimki hostage” Denis Solopov, citizen of the Russian Federation, who was forced to leave Russia because of political persecution, was admitted to Lukyanivka prison in Kyiv. Solopov became a mandatory refugee in Kyiv office of UNHCR, but he was detained near the militia department, where he requested to grant him asylum in Ukraine
In the same Lukyanivska prison, since the summer of 2010, the jailers keep three citizens of Uzbekistan, which are under threat of extradition and await the decision of the Ukrainian authorities for their extradition. All detainees, upon their arrival in Ukraine, requested political asylum, and maintained that the government of Uzbekistan persecuted them on religious grounds. Official Representative of the UN High Commissioner for Refugees in Ukraine Maxym Butkevych indicates slow progress in the investigation of their cases despite the active work of their lawyers. The Uzbekistan citizens applying for refugee status have their chronic illnesses exacerbated during their detention
The “Without Borders” Project of the “Center for Social Action” NGO made the statement:
“In Ukraine, the refugees find themselves in a blind alley: they come to Ukraine and observe all norms of Ukrainian legislation, they ask for asylum, report harassment by the authorities of the country of origin and later end up in a prison under threat of extradition to the hands of their pursuers, like it happened with three refugees from Uzbekistan and one refugee from Russia. Two refugees were arrested at their homes, another in the Office of the Service for Citizenship, Immigration and Registration of Persons, and the fourth one was apprehended at the exit from the premises of the migration service when they tried to renew the certificates, as required by Ukrainian legislation. Thus, the Ukrainian authorities deprive refugees of their right to live in accordance with the law: if they attempt to renew their documents, they risk imprisonment and subsequent extradition to their persecutors; if they do not renew their registration, the law enforcement agencies may consider this as a misdemeanor.”
The Law “On refugees and persons in need of additional or temporary protection” may be the new and, compared with other regulations on the matter, the most successful attempt to improve the government’s relationship model “refugee/state.” However, noting in general a more progressive trend in this law concerning the rights of immigrants, it is necessary to point out some contradictions and faults of its individual provisions.
The introduced 5-day period for the immigrant to declare her/his intention to obtain the status of refugee or a person, who requires additional or temporary protection, is obviously too short, as a foreigner comes into the country with unknown structure of public authorities and a rather complicated distribution of the respective responsibilities among them.
Stressing the impossibility of expulsion or forcible return of refugees and persons in need of additional or temporary protection, the law does not impose a similar ban on immigrants who have just applied for obtaining the appropriate status, but the final decision on them has not yet been taken.
The Law does not explicitly formulate the possibility for an immigrant to apply for refugee status or a person, who requires additional or temporary protection, to the law enforcers despite the fact that it is the militia who often detains immigrants carrying out control of the foreigners’ stay in Ukraine. In such cases, the immigrant’s requirements for granting the opportunity to exercise her/his right of appeal to the migration service, the law enforcers do not usually reckon with, but rather try to expel a foreigner from Ukraine as soon as possible.
The law makes it impossible to obtain the status of refugee or a person, who requires additional or temporary protection, for an immigrant, who prior to arrival in Ukraine with the intention to obtain such status, “was in a safe third country”. The too general term “was” creates preconditions for its various interpretations, which, in turn, can lead to unreasonable refusal to grant a foreigner the right to receive protection in Ukraine.
The law provides for the need to familiarize immigrants, affixing their signature, with the decision on their applications, as well as rights and obligations of the person, whose documents were accepted for processing and resolving the issue of recognition of the status of refugee or a person in need of extra protection. However, the law does not prescribe a mandatory participation of interpreter during this important procedure, which, if an immigrant does not speak Ukrainian, turns it into a bureaucratic formality: the foreigner has no idea what kind of document and for what purpose he signs.
The fingerprinting of immigrants, who has turned to migration service with applications for the recognition of the status of refugees or persons in need of extra protection, is also worded in general terms. Consciously or unconsciously, but lawmakers have provided no protection by the Immigration Service immigrants’ identity data from the use by other agencies, which, taking into account the subordination of the State Migration Service of Ukraine, is likely to lead to the formation of base of fingerprint cards in the Ministry of Internal Affairs, which has been already fingerprinting foreigners in breach of the law of Ukraine “On the militia”.
There are also controversial provisions on the procedure of informing immigrants about the decision regarding the appended instructions to refuse to process documents for resolving the issue of recognition of her/his status of refugee or a person, who needs extra protection. Thus, the law does not provide for the need to familiarize immigrants, affixing their signature, with the decision, but only requires the migration service within three working days after its decision to send a foreigner a written notice specifying the reasons for refusal and explaining the procedure of appeal. Taking into account that the term of appeal for immigrants makes only 5 days after the written notice (actually, not from the day of receipt of this message, but from the date of signing by an officer), the real opportunity to hold such appeal is minimized. The same procedure has been established for the immigrant’s appeal of the decision about the loss or deprivation of refugee status or a person, who needs extra protection.
Somehow the law allows the migration service personnel to immediately, after applying for recognition of the refugee status or a status of the person in need of extra protection, suppress the immigrant’s national passport and other documents with dubious explanation of “for storage.”
4. Amendments to regulations in the field of immigration
The processes of formation of the immigration legislation of Ukraine in 2011 clearly confirmed the existence of threatening negative growing trend of authoritarian governance that was openly creating convenient and handy legal framework. The current government, positioning itself as a government of “strong arm”, keeps changing legislation to periodically increase its influence on society and strictly control all spheres of life in Ukraine. However, the civil society opposes such infringement of the rights and freedoms with dissent and protests against the introduction of government initiatives. Sometimes it makes powers that be to mitigate legal innovations and mute the protests.
Such fluctuations are also present in legislative activity in the field of immigration: last year the main normative act regulating the stay of immigrants in our country — the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” — was twice changed dramatically, indicating hesitation of the ruling top as to the final official solution of the immigrants’ issue.
On April 5, 2011 the Verkhovna Rada adopted the Law “On amendments to some legislative acts of Ukraine on migration” (No. 3186-VI) which became a sort of a landmark document that openly demonstrated the authorities’ attempts to solve the problems associated with the stay of immigrants in the country exclusively with the help of the law enforcement agencies. The above act amended the Law “On Legal Status of Foreigners and Stateless Persons” (in redaction of 1994), which did not intend to eliminate legal gaps and problems in building relationships “immigrant/state”, but zeroed in on empowerment of public authorities to control foreigners and implementation of coercion and punishment in relation to them.
Thus, Article 25 “Entry in Ukraine” of the Law “On Legal Status of Foreigners and Stateless Persons” substantially, from 6 to 11, increased the list of reasons preventing immigrants to enter Ukraine. Taking into account that the innovations in Article 25 not only set limits for immigrants directly at the entrance of Ukraine but form the basis for the use of these coercive measures such as reduction of stay in Ukraine and expulsion abroad, it is advisable to quote the updated article in full.
Article 25. Entry to Ukraine
The foreigners and stateless persons can enter Ukraine upon presentation of passport documents. At the same time the foreigners and stateless persons should receive the official entry visa, unless otherwise provided by legislation of Ukraine.
The entry to Ukraine may be denied to foreigners and stateless persons:
— In the interests of Ukraine’s security or maintenance of a public order;
— If it is necessary to protect the rights and lawful interests of the citizens of Ukraine and other persons residing in Ukraine, public health care and ecological and environmental;
— If applying for entry or at the entrance to Ukraine s/he has submitted deliberately false information or forged or tampered documents, and if the documents do not meet the established standard or belong to another person;
— If at the entrance to Ukraine s/he failed to present a valid passport, visa or other documents required for entry to Ukraine in accordance with applicable law;
— If at the state border gate of Ukraine s/he violated the terms and procedure for crossing the state border of Ukraine, customs regulations, health standards or regulations or failed to comply with the lawful orders or requirements of the State Border Service of Ukraine, customs and other authorities exercising control over the state border of Ukraine;
— If there exist established facts of violation of the laws of Ukraine during her/his previous stay in Ukraine;
— If there are reasonable grounds to believe that s/he has other than stated by him in applying for entry or at the entrance of Ukraine grounds and purpose of entry or failed to provide confirmation on the grounds and purpose of entry;
— If there are reasonable grounds to believe that s/he is a carrier of infectious or other diseases included in the list approved by the central executive body in the area of health care, or arrives from countries with particularly complex epidemiologic situation;
— If s/he enters Ukraine to transit, but does not have proper documentation to enter the country of destination or the next transit country after Ukraine as well as paid tickets from Ukraine to the countries concerned;
— If there are facts of failure to comply with financial obligations to Ukraine, as in relation to the previous deportation, including after the expiration of the ban of further entry into Ukraine in connection with the deportation, as well as monetary penalties;
— If s/he does not have sufficient financial means for the period of intended stay and to return to the country of origin or transit to a third country, or impossibility to receive adequate financial support legally in the territory of Ukraine for citizens of the state included in the list of countries approved by the Cabinet of Ministers of Ukraine and stateless persons residing in the states included in this list. The procedure for confirmation of sufficient financial means to stay in Ukraine, transit through Ukraine and travel abroad, and its size are determined by the Cabinet of Ministers of Ukraine.”
With a bit of irony it can be noted that when the foreigners’ entry procedure is formulated in one small paragraph and the reasons for the ban in eleven, the article might be better named “Non-entry to Ukraine.”
It is noteworthy that the authorized immigration restrictions in the earlier redaction of the law were unspecified, contained inconsistent wording, had no sufficient legal basis for practical application and clearly defined mechanism for the decision and its appeal, which created preconditions for corruption of officers of border service and law enforcement agencies.
The amendments failed to eliminate, and rather expanded the bureaucratic willfulness in deciding “whether to admit a foreigner to Ukraine or not?”, because the law enforcers obtained more opportunities to regulate the entry of foreigners into the country at their own discretion, guided by departmental or personal corruption interests, while remaining completely unpunished because of the foreigner’s inability to lodge a complaint.
For example, under Article 25 the aliens shall not be allowed to enter Ukraine:
“if there are reasonable grounds to believe that s/he has other than stated by him in applying for entry or at the entrance of Ukraine grounds and purpose of entry or failed to provide confirmation on the grounds and purpose of entry.”
According to this formulation, the constraints are imposed: firstly, solely on the basis of the assumption of an official; secondly, not for the illegal action committed, but for only a possible intent to commit it. The term “reasonable grounds” is also inappropriate, because the law does not what reason should be considered “reasonable grounds”. The wording “failed to provide confirmation on the grounds and purpose of entry” also needs clarification, as nationals of from visa-free countries only inform about the purpose of their arrival in Ukraine directly at border crossings and are not required to have documents confirming their purpose (invitation, standard visa, etc.).
Thus, such an important decision for an immigrant on the possibility of her/his arrival in Ukraine does not depend on legal rules, but only on the personal attitude of the officer the to foreigner or his country of origin, possibly biased or unfriendly. Taking into account the distrust and suspicion of foreigners from the countries of the so-called “unwanted migration” cultivated in defense and law enforcement agencies, it leads to numerous violations of their rights and freedoms.
An excerpt from the interview with the Turkish citizen M.:
“The dirty tricks at Border Crossing in Odesa are a real nightmare. No easy time for visiting foreigners: they make it hot for them. I have been living in Ukraine on legal grounds: I have a residence permit and this summer went to Odesa to meet my daughter. At first I was waiting in my car, and then I decided to go and meet her. It was a good idea, for I saw that the guards did not let her through. I tried to find out why, because the documents were in order, but nobody cared to talk to me; they only said that the reasons for the ban should not be disclosed. I asked them: “You’ve already let through a lot of people, why do you banish this girl?” Besides my daughter, there were several foreigners stopped at the crossing, all of them Turkish citizens. I was indignant: “No problems with nationals from the U.S. or Germany, why this girl? I am a VIP in Turkey and they respect me in Ukraine. My daughter studied here and now came not to trade somewhere in the market, but to stay for a while with me.” Everybody keeps quite, no one wants to talk. If I had called our Consulate, they would have turned my daughter back. But I didn’t grease their palm on principle; if I bribed them, they would let her through.
My fellow-citizens know that it is injudicious for a Turkish national to travel to Ukraine through Odesa: they would like to knock a sum at the drop of a hat.”
An excerpt from the interview with the citizen of Lebanon M.:
“I landed in “Boryspil” Airport together with my bride, a citizen of Ukraine. She stayed for a while with me, met my parents, now I came to visit her country. The uniformed men stopped me at the checkpoint: no idea whether they were border guards or someone else. No idea why I was stopped; I asked for explanations, but their English was poor, and my Russian was still worse. My girl came over and exchanged a few words with them, and then told me to pay $50. I gave them to a woman in uniform. I thought it was a kind of fee. Later my bride explained that it was a passing-through sum, although my documents were in order. I began asking questions, but she refused to discuss it. “
Citizen of Georgia K. flew to Ukraine to Boryspil Airport on August 11 on private business, but instead of meeting his comrade, he spent 24 hours in the transit zone of the airport without food, water, and possibility to buy a card for a mobile phone. “He came to us for the first time, and he has no documents from the travel agency or hotel reservation, which is a confirmation of the purpose of stay of a foreigner in Ukraine,” explained the checkpoint staffers. The explanation of the foreigner that he planned to stay several days at his friend’s premises was not taken into account by the border guards. “I toured all of Europe, my wife is a citizen of the EU, but such attitude is unthinkable. I was told that I had no evidence that I came to Ukraine for tourism,” the citizen of Georgia expressed his indignation. They threatened him with deportation, but released him in 24 hours because the consular office of the Czech Republic confirmed the permanent residence of K. in its country on residence permit
On September 6, the citizen of Afghanistan N., who arrived in Ukraine to visit his parents, was stopped at passport control at Boryspil Airport together with her husband and small child. The foreigners had Ukrainian visa valid till November 15, return tickets to Afghanistan for September 27, and in the hall of the airport they were awaited by the woman’s father, a citizen of Ukraine. The officers kept the family in a small room in the airport transit zone with iron chairs instead of furniture, where foreigners spent the next 72 hours. The citizen N. maintains that she had to use faucet water to dilute child formula food, and due to anxiety her condition deteriorated, and they had to call an ambulance. “The visitors failed to explain the purpose of their arrival in Ukraine and did not have sufficient financial means to stay in its territory,” the border guards explained their reasons. Only in 72 hours after application of the Embassy of Afghanistan in Ukraine to the management of border service the retained persons were permitted to enter Ukraine
The Ministry of Internal Affairs of Ukraine made a trifle attempt to refine the procedure and restrict the entry of migrants into Ukraine by developing its “Instruction in decision-making by the Internal Affairs Agencies of Ukraine on the prohibition to enter Ukraine for foreigners and stateless persons” (approved by the order of the Ministry of Internal Affairs of Ukraine of 07.07.2011 No. 410, registered in the Ministry of Justice of Ukraine 29.07.2011 No. 934/19672). According to this document, the militia imposes such a ban solely on the basis of relevant resolutions adopted by the official of the Ministry of Internal Affairs, which should contain substantiation for making decisions about the impossibility of foreigners’ entry in Ukraine. However, the militia once again shows its original interpretation of the term “justification”, because the instruction forbids specifying the source of negative information about the foreigner and how such information was obtained. Moreover, in accordance with paragraph 4 of the Instruction, the reason for barring the entry of foreigners in Ukraine may be based on information obtained as a result of operational investigation unsupported by factual evidence from the person, which is an undercover agent or informer. Even the court cannot summon such evidence without proper security clearance.
It is noteworthy that the instruction contains no provisions on the right of a foreigner to lodge a complaint against the ban of entry into Ukraine, and foresees no possibility to obtain a copy of this document, and even an opportunity to review the contents of the resolution to clarify the reasons for the ban. And besides, the maximum possible term of the prohibition to enter Ukraine in 2011 was increased up to 10 years.
The interaction of state bodies in the field of data exchange about foreign nationals, which were not allowed to enter Ukraine, remains ill-conceived. Thus, the Instruction prescribes sending copies of the militia decision to ban entry only to the Administration of State Border Service of Ukraine and Working Staff of Ukrainian Bureau of Interpol, while no copy is sent to the Ministry of Foreign Affairs. The above procedure creates preconditions for that, under certain circumstances, a foreigner having acquired a visa at the consular office of Ukraine can unexpectedly learn about the impossibility of staying in Ukraine after her/his arrival directly at the border checkpoint at the airport. This probability may multiply because the procedure of foreigner’s familiarization with the decision preventing her/him to enter Ukraine has not been regulated yet.
Being aware of this possibility, the lawmakers in a rather peculiar way decided to amend the Law “On Legal Status of Foreigners and Stateless Persons” with the Article 1.28 “Return of foreigners and stateless persons who are not allowed to enter Ukraine.” Under the provisions of the said article, the foreigner who is denied entry in Ukraine “as soon as possible returns to a country s/he came from, or to the State, which issued the passport, by the same carrier, which carried out her/his transportation to Ukraine ... The cost of return is covered by the carrier and foreigner. If s/he cannot immediately go back, the foreigner stays at the state border checkpoint of Ukraine until her/his return.” Based on the content, the state not only finds such situation conceivable on its border, but also imposes costs on the foreigner, which were caused by the gaps in Ukrainian legislation.
The article does not specify who and how should create appropriate conditions for immigrants, who were not allowed to enter Ukraine at the state border checkpoint, i.e. provide food, places for recreation, because “the soonest possible return to the state of origin” may take several days.
Commenting on the provisions of Article 25 of the Law “On Legal Status of Foreigners and Stateless Persons” we should but note that they not only set limits for immigrants when crossing the border of Ukraine, but set grounds for registration curtail and deportation of foreigners who legally are already in the country’s territory.
Especially evident is the government’s rejection of the liberal treatment of immigrants in the amendments to Articles 31 and 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”.
Article 31 “Reducing the term of temporary stay in Ukraine” in the new redaction became the main legal instrument of possible influence and pressure exerted by the state on foreigners who are in Ukraine on legal grounds. For evaluation of such innovations, we present both redactions of articles.
Article 31 prior to 2011 amendments:
The foreigners and stateless persons, who violate the laws of Ukraine, if these violations do not call for administrative or criminal liability, may have her/his stay in Ukraine curtailed.
This term can also be reduced if the foreigner’s and stateless person’s reasons for their stay in Ukraine stand no longer.
The decision to reduce the term of temporary stay of foreigners and stateless persons in Ukraine is made by the agencies of the Ministry of Internal Affairs and State Border Service of Ukraine.
Article 31 after the 2011 amendments:
The foreigners and stateless persons have their previously fixed term of stay in Ukraine reduced in case of:
— Violation of the laws of Ukraine;
— If s/he has no reason for further stay in Ukraine;
— If s/he does not have sufficient financial means for further stay and return to the country of origin or transit to a third country or possibility to get sufficient financial means legally in Ukraine;
— If her/his activities in Ukraine could adversely affect Ukraine’s relations with another State;
— If during her/his stay there emerged grounds for barring entry under this Law;
— If a foreigner and stateless person, who had arrived for training or employment, failed to appear at the appropriate institution or place of work at a fixed time and if the causes of failure were not considered valid by an state agency authorized to make decision on deportation.
The decision to reduce the term of temporary stay of foreigners and stateless persons in Ukraine is made by law enforcement agencies, agencies of the state border protection (in relation to persons detained within the border areas controlled by them) without delay after discovery of reasons for this with obligatory indication of the period in which such person shall voluntarily leave Ukraine. This period cannot exceed ten days after making that decision. The decision-making procedure intended to reduce the term of temporary stay of foreigners and stateless persons in Ukraine is defined by the Cabinet of Ministers of Ukraine.
If the decision to reduce the term of temporary stay in Ukraine for foreigners and stateless persons has been made, such person is obliged to appear every day for registration to the decision-making authority, which makes record in her/his passport document.
The comparative analysis of both redactions of the article gives us the opportunity to talk about a radical shift in attitudes to immigration law enforcement. One should take into account that the procedure of reduction of the foreigner’s stay in Ukraine is not a means of protection of the state against illegal migration, because this reduction applies only to foreign nationals, who stay legally in our country (illegal migrants do not have registration, which could be cut). Thus, the law enforcement pressure is increasing only on the category of foreigners, which is guaranteed high-level protection of the rights and freedoms according to Article 26 of the Constitution of Ukraine: “foreigners and stateless persons staying in Ukraine on legal grounds enjoy the same rights and freedoms and also undertake the same duties as the citizens of Ukraine.”
The new redaction of Article 31 omits the unspecified and ambiguous definition of “may be reduced,” which, to some extent, is appropriate and justified, because the wording “may” gave officials the opportunity to decide on foreigners at their discretion, which created preconditions for corruption. However, taking into account the repressive orientation of the article, the introduced concertizing is causing even greater harm to the rights and freedoms of immigrants, as it exacerbates the lack of legal weightiness of its provisions.
For example, the foreigners have necessarily their term of stay reduced for “violation of the laws of Ukraine.” However, there is no indication, what legislation has been breached (in this case legislation means all laws enacted on the territory of Ukraine); this fact violates the principle that penalty should fit the crime and foresees no alternative, less severe punishment for committing a minor or unintentional violation. Thus, the foreign citizen has his length of stay in Ukraine reduced, for example, for smoking tobacco out of the smoking area or for crossing streets jumping a red signal light. Such legal requirements actually encourage militia officers either to ignore violations by foreigners, including a graft fix, or, conversely, to treat them most harshly.
The article does not clarify how the law enforcement agencies should establish the absence of reasons for a foreigner’s stay in Ukraine and whether the term “grounds” may include the goal stated by the immigrant at the entry into the country.
It is not clear by whom and by what evidence the negative impact of a foreigner on Ukraine’s relations with another state should be confirmed.
The ability to reduce the foreigner’s stay in connection with “any emerging reasons for the prohibition to enter Ukraine in accordance with Article 25 of the Law” infinitely extends the authority of law enforcers because, as noted above, Article 25 adds 11 more reasons to restrict the rights of a foreign citizen to stay in Ukraine, while not requiring the law enforcement agencies to substantiate such reasons.
The final request listed in the article about compulsory daily attendance by a foreigner of the body, which decided to cut her/his stay in the country, and register her/himself limits the right of immigrants to the choice of residence in Ukraine and free movement within its territory. Pursuant to such legislation, the foreigner’s stay in Ukraine is cut by a territorial law enforcement agency, which has established the necessary criteria for such action, and not the territorial domiciliary authority, which has prolonged her/his stay in Ukraine. Thus, for example, a foreign citizen lives and has been temporarily registered in the city of Simferopol and in the course of 10 days s/he should every day visit the militia unit in the city of Lviv for registration, because it was Lviv militia which cut his stay in Ukraine as a tourist for crossing the street in a wrong place (Article 127 of the Code of Ukraine on Administrative Offences). So, in some cases, such innovations are unrealizable, but if, at least once, the immigrant fails to visit the militia unit for such registration, s/he, in accordance with Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, shall necessarily be expelled from Ukraine.
The appropriateness of the daily records in the foreigner’s passport is also questionable, because the national passport of a foreign citizen is not a notebook for Ukrainian law enforcement bodies, and in some countries, the national passport, after records being done by foreign authorities, is considered as null and void. A kind of registration counterfoil might be a more appropriate place to make notes; an immigrant might keep it in her/his passport to confirm her/his visit to the militia unit.
An excerpt from the interview with the Russian citizen:
“I arrived in Ukraine to visit my relatives. Actually, I was born and grew up here, and then, at the time of the USSR, I entered the Institute in St. Petersburg, where I married and decided to stay. One week after my arrival in Ukraine, I visited my friend. Once we left the house and sat on the bench to drink beer. We were not drunk, behaved quietly, just sat and talked. The militiamen came and told that we were splitting bottles of alcoholic beverages in a public place; we were detained and taken to the district militia officer. They drew a militia charge-sheet on me and my friend; they took my passport and told that I should come for it to the district militia department two days later. When I came to get my document, they told that the term of my stay in Ukraine was cut, and I must return to Russia within 10 days as I have violated the laws of Ukraine. Then showed me a note on it in my Russian passport. They disregarded my explanations that this was a minor domestic offence and I paid a fine; they said I should be also grateful for the fact that I was not forbidden to come to Ukraine in the future. I intended to stay for few months, but now I have to return home. In my opinion, it is an unacceptable practice. “
Article 32 “Deportation from Ukraine” of the Law “On Legal Status of Foreigners and Stateless Persons” was also remade.” The new redaction of this article provides for “necessity” and “possibility” for militia to expel the foreigner from Ukraine. The earlier variant of Article 32 read that an alien “may be expelled,” and this wording, on the one hand, created the opportunity for abuse, since the militiaman could use his own discretion in the case, on the other hand, there remained the possibility to apply another, less severe punishment than expulsion (bringing to book).
Now Article 32 reads:
An alien or stateless person shall be expelled from Ukraine, if:
— S/he committed a crime — after completion of sentence;
— S/he failed to voluntarily comply with the decision to reduce the term of her/his temporary stay in Ukraine during the prescribed period;
— Her/his stay in Ukraine is a threat to national security or public order;
— During her/his stay there emerged grounds for barring entry under this Law;
— If s/he at least once has not complied with the requirement to come daily for registration to the agency that decides to reduce the term of her/his temporary stay in Ukraine due to reasons not recognized as valid.
A foreigner and a stateless person may be expelled from Ukraine if:
— Her/his activities in Ukraine have a negative impact on Ukraine’s relations with another State;
— S/he committed a misdemeanor after an administrative penalty;
— S/he has no legal means of subsistence sufficient to ensure her/his stay in Ukraine and leave Ukraine in the amount determined by the Cabinet of Ministers of Ukraine.
Positively evaluating the intentions of lawmakers to specify the reasons for applying the expulsion procedure to foreigners, one could argue that, unfortunately, these changes are made solely for the purpose of enhancing the powers of law enforcers, and not to eliminate corruption component in their actions and protection of foreigners from bias and partiality of officials when deciding on expulsion.
The inclusion into the Article of requirements for mandatory deportation of a foreigner in connection with “emergence of any reasons for the prohibition to enter Ukraine in accordance with Article 25 of the Law,” in terms of legislators’ superficiality in formulating these grounds and their necessity unproved, actually legalized the possibility of expulsion of aliens using untested, unconfirmed, artificial or fictitious reasons invented by law enforcers.
The provisions of Article 25 in the context of Article 32 led to the emergence of some discrepancies in the interpretation of the question, “When a foreigner’s expulsion is mandatory, and when only possible?” Thus, according to Article 32 the foreigner may be expelled from Ukraine, if “s/he has no lawful means of subsistence sufficient to ensure her/his stay in Ukraine and leave Ukraine.” However, given the statutory joint application of the provisions of Article 25 and Article 32, “if the alien does not have sufficient financial means for the period of intended stay and return to the country of origin,” s/he is expelled from Ukraine without fail.
According to Article 32 of the Law “On Legal Status of Foreigners and Stateless Persons”, for an administrative offence a foreigner can be expelled from the state. At the same time, in accordance with Article 25 of the Law, one of the reasons for the prohibition of immigrant’s entry into Ukraine and thus for her/his mandatory expulsion is to establish “the fact of violation of the laws of Ukraine during her/his previous stay in Ukraine.” The quirkiness of this situation is in the fact that for the past administrative offence an immigrant is “necessarily” expelled from Ukraine, and for committing the same offense at present time s/he just “may be” expelled.
An excerpt from an interview with an Israeli citizen:
“During the celebration of the Jewish New Year in Uman, my compatriot was expelled from Ukraine because he was riding on a scooter without a helmet on his head. And the ban is valid for two years to come. For a man of our faith the inability to visit the remains of our tsadik on New Year’s holiday is a real tragedy. Imagine, for example, that a Christian is banned for two years to go to a church on Easter or Christmas.”
It is noteworthy that the detailed grounds for expulsion relate only to the authority of the law enforcement agencies. The Security Service of Ukraine and agencies safeguarding the state’s borders can expel a foreigner on the grounds and in accord with the previous redaction of Article 32 “if the actions of foreigners and stateless persons violate the law on the status of foreigners and stateless persons or contrary to the interests or security of Ukraine or public order.” This fuzzy formulation and use of the term “gross violation” without proper definition permit the officials to conduct deportation of a foreigner without a sufficient justification for the use of coercive measures.
However, there are such improvements as disentitling of the Security Service and Border Guards of carrying out the expulsion of immigrants “when it is necessary for protection of health, rights and lawful interests of the citizens of Ukraine.”
The adopted innovations prescribe that the foreigner-to-be-deported must be banned from future entering Ukraine, while in the previous redaction of the Law “On Legal Status of Foreigners and Stateless Persons” such decision was not mandatory, but only possible and the agencies of internal affairs were authorized to make such decision at their own discretion and taking into account the severity of violations committed by foreigners.
In this case the maximum term of prohibition to enter Ukraine doubled from 5 to 10 years, but no specific criteria for determining the duration of the prohibition (from 6 months to 10 years) were established. So, an immigrant< even a minor offender, not only must be expelled from Ukraine, but also her/his right to enter Ukraine may be limited for a decade to come.
The previous experience of relations of the internal affairs agencies with foreigners permits to conclude that the militia has been given an additional possibility to make selective quoting of entry into Ukraine of certain categories of immigrants, because the law enforcers will establish a maximum period of prohibition of entry for aliens from the so-called “countries of risky migration”, primarily from the Caucasian region, Vietnam, Pakistan, India and others. In addition, the innovation created favorable conditions for abuse of office: the foreign citizens reported cases of extortion of bribes from them to establish a relatively small period of prohibition to enter Ukraine.
Another proof of the proposed government’s strategy to limit the rights of immigrants consists in minimization of the prescribed exit time after the decision on her/his expulsion from Ukraine. Earlier legislation permitted the foreign citizen to stay in Ukraine up to 30 days from the date of such decision, while the new redaction of the Law “On Legal Status of Foreigners and Stateless Persons” brings the exit time down to only 5 days. This term not only complicates the solution of domestic problems of the foreigner associated with the need to leave Ukraine (e.g., sale of property which s/he cannot take with her/him abroad); sometimes it simply cannot be done by the deadline, particularly because of the lack of tickets in the box office for the return trip to the State of residence. The foreigner’s non-exit from Ukraine for 5 days is regarded as the non-compliance with the expulsion order and the intention to evade the voluntary departure from the state, and this entails her/his detention, restraint of liberty and forced guarded deportation.
Article 32 of the Law “On Legal Status of Foreigners and Stateless Persons” foresees the right of appeal of the judgment on the immigrant’s expulsion, but the new redaction of the article has omitted such important provision, as the suspension of decisions on expulsion in the case of statutory appeal. One should note that in 2011 the Code of Administrative Procedure of Ukraine was amended with Article 183-5 “Peculiarities of proceedings in the case of administrative actions for expulsion of foreigners and stateless persons”, which sets a month deadline for trial on appeal against the decision of the immigration law enforcement authorities on his deportation and mandatory presence of both parties at the trial. This situation is at least illogical, since a foreigner has a five-day deadline for leaving Ukraine after the decision on expulsion, while the court may delay the appeal of this decision for a month. Thus, the amendments make the appeal of expulsion decision almost impossible.
The analysis of the amendments made in 2011 to Article 32 of the Law “On Legal Status of Foreigners and Stateless Persons” may lead to a final conclusion that the lawmakers doubled, from 6 to 12 months, the confinement term for foreigners and stateless persons.
Maybe the amendment to Article 32-1 of the Law, which prohibits the deportation of a foreigner to the country where s/he could face torture, hard, inhuman or degrading treatment or punishment types became only positive innovation in the Law “On Legal Status of Foreigners and Stateless Persons” aiming at protection of immigrants’ rights without extention of the authority of law enforcement agencies.
The new regulations prescribed in the legislative acts of 2011 imposed stringent control of the entry of immigrants to Ukraine and extended the grounds for their expulsion from the country, as well as combined with increasing administrative pressure on foreigners.
Thus, in 2011 amended the Article 203 of the Code of Ukraine on Administrative Offences “Violation by foreigners and stateless persons of the rules of stay in Ukraine and transit through Ukraine”, which was the main lever of administrative influence of law enforcement agencies on immigrants. The lawmakers significantly increased the size of a minimum and maximum fine that may be imposed on a foreigner in accordance with the said Article: the minimum fine increased from twenty to thirty, and the maximum from forty to fifty times the minimum monthly income.
Due to the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” the general trend of narrowing the rights and freedoms of immigrants in Ukraine can be clearly traced in the departmental normative documents of the Ministry of Internal Affairs. On September 20, 2011 the Ministry of Justice of Ukraine registered (No. 1112/19850) the Decree No. 601 of the Ministry of Internal Affairs from 23.08.2011 “On approval of the Order of consideration of applications for the extension of stay in Ukraine for foreigners and stateless persons.” Traditionally for the last regulations of the law enforcement agency the said order exclusively regulates the control of immigrants by the law enforcers, without taking into account their basic needs and leaving mechanisms of protection of foreigners from possible abuses by officials undetermined.
The order has rater complicated the procedure for obtaining a permit for immigrants’ temporary stay in Ukraine, especially an expanded list of required documents and significantly higher requirements for their processing.
In accordance with new requirements, an alien must add to his written request to the State Department of Citizenship, Immigration and Registration of Physical Persons of the Ministry of Internal Affairs of Ukraine about the extension of their stay in the country the following documents:
— A copy of pages of the national passport;
— A copy of immigration card;
— A notarized translation of national passport pages into Ukrainian;
— A copy of the passport of receiving Ukrainian citizen;
— A copy of dwelling entitlement, where the immigrant will temporarily stay;
— A notarized statement from the owner of the dwelling (or of all persons registered in it) with the consent to the foreigner’s stay;
If an immigrant is received by a legal entity in Ukraine, the specified list should additionally include the certified copy of the extract of Unified State Register and a copy of the order of appointment of employees responsible for processing the documents for foreigners.
It is likely that getting the immigrant to give additional documents was intended to control the corruption of officials of the Ministry of Internal Affairs while making their decision to extend the foreigner’s stay in Ukraine; however, due to similar anti-corruption measures in the militia, the extra costs and expenditures on bureaucratic procedures for collecting and processing of all documents will be covered by foreigners and receiving party.
The order number 601-2011 monitors the principle established by the Cabinet of Ministers of Ukraine No. 1074 “On Regulation of Entry of Foreigners and Stateless Persons in Ukraine, their exit from Ukraine and transit through its territory” consisting in the government’s preconceived opinion of immigrants from certain countries of the world. Thus, the immigrants from countries listed in Annex 5 of the above rules for extension of stay in Ukraine are required to submit copies of the document that became the basis for the visa and documents confirming the availability of means to cover costs associated with her/his stay in Ukraine. Unlike citizens of other states, whose stay in Ukraine may be extended by receiving their natural or legal persons, the blacklisted immigrant must go in person to the militia for consideration of her/his application.
The new Order of the Ministry of Internal Affairs deprives the officers of the district units of the State Department of Citizenship, Immigration and Registration of Physical Persons of the right to decide on the extension of stay in Ukraine of certain categories of immigrants. Now these units can but prolong the temporary registration only of immigrants who arrived in Ukraine with a private purpose and for a period not longer than 180 days from the date of last entry. Therefore other categories of immigrants to extend their stay in Ukraine have to go to oblast centers to the Department units of higher level spending extra time and money.
Moreover, some militia units made it a rule to divest the blacklisted foreign nationals of their right to extend their stay in Ukraine at the place of residence.
An excerpt from the interview with a citizen of Azerbaijan:
“I turned to the passport office in Zolotonosha Town, Cherkasy Oblast, with a request to extend my stay in Ukraine, because I have legitimate grounds based on processing my wife’s and my documents to obtain permission to immigrate. But the staffers refused to accept documents and said that they had been ordered to send all Caucasian foreigners to extend their registration to the oblast department of citizenship, immigration and registration of persons in Cherkasy. To my great surprise they explained such selectivity by the fact that Caucasian immigrants belonged to a “risk group”, because in Ukraine they committed many crimes and were engaged in illegal trade. They immediately apologized and stressed that personally I am not the case, but the order was the order and they had to report to their chief.”
The order specifies nine grounds for refusal to immigrants to prolong their stay in Ukraine, some of which, because of their evasive wording and absence of appropriate evidence, enable militia officers to refuse to grant permission to stay in Ukraine to almost any immigrant at their discretion. For example, a foreigner is deprived of prolongation of temporary registration if “there are reasonable grounds to believe that he has other than stated in his appeal reasons and purpose for staying in Ukraine.” Thus, the constraints are imposed not for immigrant’s actual violation or non-statutory conditions of entry and residence in Ukraine, but only on the basis of official’s judgments and assumptions about possible insincerity of the immigrant. In this case, nobody specifies what reasons may be recognized as “well-grounded” for such judgment.
The special paragraph of the order gives immigrants the right to appeal the decision banning the extension of her/his stay in Ukraine. However, one cannot use this right in practice: in case of refusal of extension of immigrant’s stay s/he has virtually no time to prepare necessary documents for appeal and trial. In case of non-exit of a foreigner from Ukraine after refusal to extend her/his stay in its territory, s/he is at once recognized as an illegal migrant and expelled from the state.
An excerpt from the interview with an Armenian citizen:
“I arrived in Kyiv to visit my friend. At the same time I wanted to find out whether there are favorable conditions for business in Ukraine, so together with my friend I traveled all over the country. I had no special problems with the militia; however, the patrol, and State Vehicle Inspection often stopped us and checked the documents. Four days before the registration expiration date specified in the registration stamp, I went to the passport department to submit documents for extension of my stay in Ukraine for two months. I was turned down: they just did not accept my documents for consideration. At my request to explain the reason for refusal, they simply replied: “You came on a visit? Three months is enough.” They did not take into account my friend’s explanations that he wanted to extend my stay in Ukraine. The passport clerk grinned and retorted: “A good guest is eager to quickly return home.” I had four days before the registration deadline, and I explained that the refusal to extend the registration in Ukraine was a complete surprise for me and I needed to arrange deals before leaving, including buying a ticket purchase, which is not that simple. I cannot meet the exit deadline; but all was in vain, and they did not prolong my registration.”
It is noteworthy that the decision to deny a foreign citizen in the extension of temporary stay is issued in the form of standard written notification, in which the foreigner is not even informed of the opportunity to appeal this decision in court.
One of the innovations in 2011 was the insurance of the receiving party against loss or damage in the event of a possible expulsion of a foreign citizen.
It should be noted that, according to Article 32 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, the immigrants-to-be-deported reimburse the costs associated with carrying out this procedure of coercion. If the foreigner has no money to cover these expenses, the state defrays the expenses, which are refunded by receiving natural or legal person who invited a foreign citizen or has taken, as prescribed by law.
Despite the fact that the procedure of refunding of the expenses of the state related to the deportation of aliens was settled by law, in 2011, the Ministry of Internal Affairs of Ukraine instructed its subordinate units of Citizenship, Immigration and Registration of Physical Persons to compel natural and legal entities inviting or accepting immigrants in Ukraine to voluntarily insure their responsibility for reimbursement related to the expulsion from Ukraine of a foreigner invited. To carry out such insurance the Ministry singled out a number of insurance companies (“Megapolis”, “VUSO”, “Ukrainian Security Insurance Company”), which, in the case of detention of foreigners for the forced expulsion, shall reimburse the person who accepted the foreigner, the upkeep cost of foreigner in a special institution and the cost of travel documents for his return to the country of residence.
For 9 months of 2011, Ukraine forcibly expelled 1,488 illegal migrants, representing only 2% of foreigners who visited Ukraine during the same period. However, in the units of the Department of Citizenship, Immigration and Registration of Persons every arriving foreign citizen was viewed as a potential violator of immigration law and in each case of natural or legal person’s request to extend the foreigner’s stay in Ukraine they required to buy an insurance policy if the foreigner would be forcibly expelled from Ukraine. Such actions not only humiliated the dignity of foreigners, but also led to unlawful unexpected expenses of the host side, as the sum paid for insurance is much more than the sum paid for the extension of the stay of foreigners in Ukraine.
From the materials of the information and legal resource “First Ukrainian Legal Forum”
“I was about to prolong my husband’s, a Russian, the term of registration in Kyiv. Earlier in the passport section of Holosiyiv District Militia Station we were given three bills: UAH 17 state due, UAH 54 for unidentified consulting service, UAH 29.90 for the services of Department of Citizenship, Immigration and Registration of Persons. Probably something changed during last six months, because this time there is an additional mysterious bill for UAH 160 owed to the insurance company “VUSO” with the wording “payment under the contract.” Meanwhile we saw no agreement whatsoever. Is it legally and can they deny us registration if we do not pay for insurance? We called the single “VUSO” center and asked our question; we were redirected to the Kyiv office. There ensued an interesting “ping pong” from specialist to specialist: they all listened politely and then sent us to another pro. Actually, we had to repeat our question four times. All specialists, as one man, came to the conclusion: there occurred changes in the Ukrainian legislation concerning the compulsory insurance of foreigners, but no one could name a particular document, under which we had to pay these UAH 160. They stated that “changes were made on May 4, 2011” and nothing more. Where? Who? It’s all very strange and looks like usual extortions…”
From the application of a citizen to the Kharkiv Human Rights Group:
“During the procedure of extension of registration in Kharkiv for my wife, they insisted on insurance. Those present expressed their indignation; nevertheless they paid. I did not pay studied the contract: it read “Agreement of voluntary insurance”; the private company “VUSO” is the insurer. They explained that when a foreigner violates the rules of stay in Ukraine, the insurance company will pay UAH20,000 for her/his expulsion (note: ticket for electric train from Kharkiv to Bilhorod costs UAH6). Now the coolest piece of it: we began demanding reasons for such a forced voluntary insurance. The receptionist taking our documents explained that this was the ministerial order. We asked to name the pertinent regulation, the date of signing, but she tried to dodge the question: firstly she said that we’d rather look for this document in the Internet, and then directed us to the management, then she said that she was very busy and suggested to come at the end of the day. It was very frustrating to see people like obedient sheep suffer this humiliation while somebody while somebody reaped his rewards. I did not pay and said that I intend to write a complaint to the public prosecutor’s office.
This story had an interesting sequel. I was accompanied by a man who had already paid for this insurance, but subsequently took an active part in the showdown trying to establish for what and under which document he did pay. Next day an inspector called him and asked to come to him. When the man arrived, he was given his insurance money back and they apologized, because, I think, nobody wants to serve a term.”
Another departmental document of the Ministry of Internal Affairs of Ukraine: Order from 23.08.2011 No. 602 “On approving the procedure for processing and issuing a permit for temporary residence” permitted militia to limit the rights of labor migrants.
It should be noted that in recent years, under the pretext of the need to protect the interests of Ukrainian labor market, the government of Ukraine has been gradually but consistently introducing measures intended to complicate the employment of immigrants in the country. Currently, the employment of labor immigrants is subject to regulations approved by the Enactment of Cabinet of Ministers of Ukraine No. 322 from 08.04.2009 “Procedure for issuance, extension and cancellation of permits for the employment of foreigners and stateless persons” which, in comparison with the previous procedure, approved by the Cabinet of Ministers of Ukraine No. 2028 from 01.11.1999, significantly complicated the procedure for obtaining such a permit requesting additional documents. At the same time, the fees for processing applications for work permit for an immigrant increased from ten free-of-tax minimum incomes (UAH170) to four minimum wages (from 01.10.2011 it makes 985 ´ 4 = UAH 3,940). Moreover, this charge is to be paid for consideration only, and the later decision may turn down a work permit.
The new Order of the Ministry of Internal Affairs, even if the immigrant has a job opportunity permit issued by the job center, establishes additional requirements for the receipt of a sojourn permit, including bringing to the militia of additional papers about the legal person employing the immigrant and personal data on the physical entity, the authorized representative of the party receiving the immigrant.
Moreover, now the militia is authorized to deny immigrants to obtain sojourn permit or revoke it on the basis of their own, and therefore possibly biased opinion about the foreigner or her/his country of origin. Such motives for limiting rights of immigrants to work in Ukraine as “the employment of the immigrant is contrary to the legitimate interests of citizens”, “the actions of the foreigner are a threat to public order,” according to the order of the Ministry of Internal Affairs, do not require furnishing evidence, and the wording “the facts of violation of Ukrainian legislation during the previous stay of the immigrant in the country” does not meet the principle of making a penalty fit a crime, as an immigrant can be denied a residence permit even if s/he crosses the street in a wrong place.
The government’s adherence to the policy of distrust and constant pressure on immigrants always ran into withering criticism from the side of human rights organizations. In view of this and being aware of the obvious irrationality of such innovations in the country prior to Euro 2012, the lawmakers adopted a fundamentally new, more progressive Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” which is relatively humane toward immigrants.
5. Preliminary analysis of the new Law “On Legal Status of Foreigners
and Stateless Persons”
The new Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” (No. 3773-VI) came into force only on 25.12.2011, and new practices based on it will be significantly affected by subordinate legislation, which at the end of 2011 were not yet worked out. Therefore now it is appropriate to briefly review the main achievements and shortcomings of the new law, and the contradictions that arise from its introduction.
The main positive innovation consists in partial abrogation of repressive rules adopted in April 2011. Thus, in accordance with the provisions of the new law, the foreigners cannot enter into Ukraine not for committing a violation of the law during her/his previous stay in the state, but only in the case of failure to comply with a court decision on the imposition of administrative penalty for this violation.
If the competent authorities decide on forcible return of a foreigner to the country of residence, s/he will have not five, but thirty days to exit Ukraine and the forced return is not necessarily accompanied by a decision to ban entry to Ukraine in the future. In addition, the law significantly, from ten to three years, cuts the term of prohibition to enter Ukraine for foreigners who have committed the attempted illegal border crossing.
Unlike the previous law, the new one does not contain a detailed list of principles intended to reduce the immigrant’s stay in Ukraine, but stipulates that such a reduction may take place when a foreigner loses ground for further stay in the country. Thus the law abrogates the rules of mandatory reduction of foreigner’s registration for committing even minor offences, late arrival to the place of study or work, or through recognition of a foreigner’s activity as such that may worsen Ukraine’s relations with another state.
The new law introduces a radically new procedure of “voluntary return” to the alien’s country of origin, which, by its nature, is not a coercive action, but an aid rendered at the request of the immigrant and with the assistance of state authorities, international organizations and NGOs.
The law clearly defines the impossibility of expulsion or forced return of immigrants to the countries where their life or freedom is threatened, where s/he may face death penalty, torture or cruel treatment.
An important innovation consists in expanding the list of categories of immigrants who are eligible for a permit for temporary residence, and clarification of the order of confirmation of foreigner’s material well-being, which is one of the necessary conditions for a positive decision on the possibility of her/his stay in Ukraine.
Undoubtedly, these changes deserve merit, but at the same time, it should be noted that the new law fails to eliminate all risks of violations of human rights and freedoms of immigrants.
First of all, unlike the previous version, the adopted law does not contain a separate chapter on fundamental rights and freedoms of foreigners with articles on the rights of immigrants to work, education, health care, social protection, housing, etc.; it only indicates that the “foreigners and stateless persons staying in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same responsibilities as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine”. This rejection of a more detailed list of the rights of aliens is impractical because the volume of rights available to an immigrant depends on the status of her/his stay in Ukraine. For example, to work or engage in other employment activities on the grounds and in the manner prescribed for the citizens of Ukraine have the right only the foreigners residing in its territory, while other categories of foreign nationals must obtain the permit from relevant authorities. The right to education equal with the citizens of Ukraine is also guaranteed only to foreigners who permanently reside in Ukraine, while other immigrants pay for their education under a separate procedure. The absence in the new law of clear regulation of the rights and freedoms of foreigners with regard to the status of their stay in the country, of course, complicates the mechanism of realization of these rights.
Once more the legislators evaded specifying grounds and clarification of the procedures of applying coercion by the law enforcement agencies as a punishment of immigrants. Thus the new law creates the conditions for removal of the very important reason for violation of human rights and freedoms of foreigners in Ukraine: officials may go on making decisions at their own discretion, from the standpoint of subjective evaluation of the alien and her/his actions, on prohibition of the foreigner’s entry into Ukraine, conduct forcible return or expulsion justifying such decision by general wording like “in order to protect the legitimate interests of persons living in Ukraine,” “in the interests of public order”, “need to protect the health of the citizens.” The law has also preserved the rule of possible detention and forced deportation of a foreigner from Ukraine only under the assumption that he intends to avoid leaving the state after the decision to return to his country of residence has been made.
The new law permits immigrants to appeal against the decision concerning her/his forcible return or expulsion in court, but such appeal shall not suspend implementation of these procedures.
The new law does not specify the grounds for refusal in the extension of foreigner’s stay in Ukraine. Today, these grounds are determined by the order of the Ministry of Internal Affairs, whose position is too rigid and does not comply with the new law.
It should be noted that in the nearest future the implementation of the Law “On Legal Status of Foreigners and Stateless Persons” will be complicated because it is not adapted to a number of regulations, including legal documents of law enforcement agencies.
But one of the main threats for the implementation of humanitarian provisions of the new law is the closely defined circle of its executors, because the effectiveness of any legal act primarily depends on the state of the agencies responsible for implementation of its norms in everyday life. In Ukraine, the central executive body responsible for the government policy on migration is the newly created State Migration Service (SMS). The analysis of the full powers of this service and its activities suggests that the last year’s reform of immigration laws was nothing but another attempt to collate non-collatable: to guarantee civilized relations of state with the immigrants, while retaining the priority role of power and law enforcement agencies in building such relationships.
6. State Migration Service of Ukraine
Ukraine has long needed such institution; however the proposed official format of the newly created service has failed to satisfy the human rights community. Instead of the agency independent of the Ministry of Internal Affairs, civil and transparent in its activities and carrying out duties non-typical of the law enforcement and power bodies related to migration issues and unite the fragmented power of several authorities working with the foreigners in Ukraine, they created another oversight body for foreigners, a kind of MIA “subsidiary”.
The Decree of the President of Ukraine dated April 6, 2011 No. 405/2011 approved “The Statute of the State Migration Service of Ukraine”, according to which the service operates in accord with the orders of the Ministry of Internal Affairs, its activity is directed and coordinated by the Minister of Internal Affairs, which not only forwards the Head of the SMS and approves the heads of its territorial units, but also deals with reorganization of central office departments and units of migration service, delegates to its board the representatives of the Ministry of Internal Affairs, considers the proposals of SMS on formation of public policy on migration, approves annual work plan of the State Migration Service and oversees its execution. The personnel of the SMS Workers have specific authority and can use force and specific means in the cases and manner prescribed by the Law of Ukraine “On the Militia”.
In fact, instead of creating a new civilian agency, which would be able to reasonably resolve problems associated with immigration of foreigners in Ukraine, the Presidential Decree only boosted the potential impact of the Ministry of Internal Affairs on migration policy in the state. Clearly, the effectiveness of the new agency can show only with time, but already there are reasons to argue that the activities of Ukrainian State Migration Service will focus not on humanitarian missions, such as matters of social adaptation of immigrants and enforcement of their rights and freedoms by the state, but will resort to power and punitive principles of law enforcement agencies with typical rigid attitude toward immigrants.
Certainly, in many European countries the migration service also reports to the Ministry of Internal Affairs or is closely associated with it. However, in the case of Ukraine such experience can hardly be recognized as optimal, because the Ministry of Internal Affairs is not a body of general internal policy, but a tool for fighting crime and a means of law enforcement with its own narrow objectives and priorities. The human rights activists have repeatedly noted, that as a method of combating illegal migration the Ukrainian militia widely uses measures both to reduce the total number of immigrants in Ukraine, and to carry out a sort of selection, when aliens from so-called risk-migration area (the Caucasus region of the FSU, Africa, Southeast and Central Asia) are denied extension of registration, deported from Ukraine, and their right to move freely across Ukrainian territory is restricted and so on. As a subordinate of the Ministry of Internal Affairs, the State Migration Service shall also do the same and will never become a protector of the rights of immigrants and refugees.
Thus, the analysis of the changes in national legislation on immigration shows that in 2011 the government actually refused to back the national legal regime for the stay of foreigners prescribed by Article 26 of the Constitution of Ukraine, in which the aliens had practically the same rights, freedoms and responsibilities as citizens Ukraine, and chose restrictive and coercive measures regarding immigrants.
These changes have not only eliminated, but significantly increased the already wide range of violations of human rights and freedoms of immigrants in Ukraine, including the segment of corruption of civil servants.
In 2011, thanks to legislative innovations, the law enforcement agencies got more opportunities to exert legal pressure on foreigners, which process could not be considered a “weighted immigration policy.”
For 9 months of 2011, the militia registered 65,384 foreigners; during the same period, they brought to book 43,458 foreign nationals for violation of stay in Ukraine. Thus, 66% of our guests turned out to be violators of state laws of Ukraine, and such balance became a striking illustration of the repressive character of this legislation.
What is the reason for such aversion to foreigners? It should be noted that the leaders of European countries constantly demand from the Government of Ukraine to take over the control of migration processes in the country pointing to the inability of Ukraine’s accession to the European community without improving the immigration rules. Such requirements are clear and fair, because a certain number of immigrants traverses Ukraine while going to Western Europe illegally. Currently, the Ukrainian government is doing its best to show the European Union its desire and ability to combat illegal migration, which is easiest to do, on the one hand, introducing exponentially hard laws, and on the other, constantly demanding that the law enforcement agencies make progress, which demonstrates the effectiveness of the government in this direction.
However, the above statistics show that seemingly significant number of foreign offenders is formed not by migrants from problem countries in Africa, Southeast and Central Asia, which are not welcome in Europe, but by FSU citizens (88% of detained illegal immigrants), who, having arrived in Ukraine, have no further intention to get to Western Europe and constitute no menace to it. However, the rights of this very category of foreigners are massively violated in Ukraine for the welfare of Europeans promising visa-free travel, investments and so on.
Moreover, the “state phobia of migrants” in Ukraine has its financial background: in order to combat illegal migration the Government of Ukraine and law enforcement agencies get ample budgetary appropriations.
“The European Union has allocated €30 million to address the issues of illegal migrants, strengthening national policy on migration and construction of seven temporary accommodation centers and two centers of detention for migrants over the next two and a half years in the context of the readmission agreement between the EU and Ukraine”
Obviously, the law enforcement agencies are directly interested in the creation in the Ukrainian and European societies of the image of large-scale illegal migration of foreigners in Ukraine, because the large sums of money are allocated to counter this negative phenomenon. However, the verdict of the experts of the Chamber of Accounts of Ukraine on the efficiency of the draft on funds for these purposes by the Ministry of Internal Affairs is shocking.
The report of Acting Head of the Chamber of Accounts of Ukraine Yaremenko O.S. to the Head of the Verkhovna Rada of Ukraine Lytvyn V.M. (letter dated 17.10.2011, reference number 02-1865) reads:
“We have established that economically unjustified managerial decisions on the organization of combating illegal migration, creating inefficient and money-losing interim custody premises for foreigners and stateless persons (hereinafter: ICP) led in 2009–2010 and first six months of 2011 to the misappropriation of funds by the Ministry of Internal Affairs of Ukraine to the tune of UAH 2,041,900 and ineffective use of budget funds to the tune of UAH 24,978,000, or about every sixth hryvnia out of allocated for these purposes UAH 160 million…
The delay of the liquidation of the State Department of Citizenship, Immigration and Registration of Physical Persons by the officials of the Ministry of Internal Affairs led to further squander of budget funds for its maintenance and disruption of the system of migration management.
At the same time on the organization of the State Migration Service of Ukraine, which was twice created and liquidated during 2009–2010, the budget spent over two million hryvnias…
The simultaneous operation of two agencies in combating illegal migration bears heavily on state budget and increases the risk of further inefficient use of public funds.
Despite the annual reduction of filling of the interim custody premises, the project capacity of which was well above real need, the cost of their maintenance and labor costs of maintenance staff was constantly growing. As a result, the number of maintenance staff at the interim custody premises per one illegal migrant in the last two and a half years has grown from 1.5 to 2.4 persons and expenses of institutions per illegal worker from UAH 9,149 to UAH 22,636…”
7. Conclusions and recommendations
Every country has the right to determine for itself the level of trust to foreign nationals, which is reflected in the regulations of this country. However, the basis for the introduction of policy in relation to immigrants should include objective assessment of immigration, demographic and economic situation in the country built on analysis of relevant statistical data, ongoing monitoring and forecasting of the dynamics of processes. In 2011, the government of Ukraine has departed from these principles and established the unreasonably strict legal rules regulating entry and stay of immigrants in Ukraine, legitimized a significant narrowing of rights and freedoms of foreigners, created additional security agencies to control their residence in the country. These processes are obvious indicators of growth of the “state phobia of migrants” in Ukraine.
The propaganda of such policy of “active distrust” to immigrants put on a wide scale in the media backed by the government agencies (above all by law enforcers) was one of the factors increasing the level of xenophobia in Ukrainian society: about 8% of the population of Ukraine are extremists in relation to other ethnic groups, including 1%, which is about 400,000 people, are ultras. 9% of respondents believe that Ukraine should never allow the accommodation of other races and nationalities, and 19.4% would not admit non-Europeans from poor countries (the results of the survey conducted by the Kyiv International Institute of Sociology).
The recommendations contained in the report “Human Rights in Ukraine: 2009-2010” remain relevant today. The Cabinet of Ministers of Ukraine, Ministry of Internal Affairs, State Migration and Border Guard Services of Ukraine have to immediately focus on the creation of a new departmental database of documents that, firstly, have to clarify the regulations of the new Law “On Legal Status of Foreigners and Stateless Persons” and, secondly, to ensure the functioning of the State Migration Service not only as the controlling body for the stay of immigrants in the state, but also as the state guarantor of their rights and freedoms in Ukraine. In particular, there is a need to develop new departmental instructions detailing the procedure for making and implementing decisions on the prohibition of entry, forced return and expulsion of foreigners from the country with a special section on granting the realization of their rights and freedoms in the implementation of these procedures of coercion; initiate the development and adoption of a legal act to safeguard the rights of asylum seekers, who cannot officially get refugee status in Ukraine, and to determine the order of their temporary legalization in the state, prepare and send to local militia departments thee Guidelines on checking the legality of stay in Ukraine of asylum seekers with the attached samples of documents, which this category of foreigners should have in order to obtain permission to reside in Ukraine, and take other measures. Another important task should include adequate training of the personnel of State Migration Service in order to familiarize the trainees with Ukraine’s international obligations on human rights in the field of migration and ensure their strict implementation in daily activities.