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Thanks to UHHRU lawyers, a stateless person won the court case against the State Migration Service

Due to the arbitrariness of employees of the State Migration Service of Ukraine, the man turned into a legally non-existent person, even despite the fact that he resided legally in Ukraine and even bought housing here.

For 20 years, Gela Tushishvili has lived as a stateless person in independent Ukraine. All these years tried to receive Ukrainian citizenship, but unsuccessfully. Lawyers of the Ukrainian Helsinki Human Rights Union’s public reception in Kyiv helped the man to return a permanent residence permit in Ukraine and to legitimize his status.

After the collapse of the Soviet Union, Mr. Tushishvili did not apply to the relevant authorities to replace his Soviet passport with the citizenship of one of the newly formed states. He continued to live in Ukraine with a document of the non-existent state. He was born in Georgia. Then he traveled to Russia where he studied at the North Caucasian Institute of Mining and Metallurgy in Vladikavkaz; then he moved to Ukraine, where he still lives.

In 1999, Mr. Tushishvili received the passport of the citizen of Ukraine, which was issued by the Rokytnyanskyi District State Administration of the Ministry of Internal Affairs of Ukraine in Kyiv Oblast.

“I received my old Soviet passport. Authorities explained that they had no interest in it and I couldn save it as a souvenir. As I understood nothing in migration law and felt no fault, I trusted officials of the passport service. When communicating with law enforcement officers later, every time I simply showed them two passports at the same time,” Gela Tushishvili says.

During the next passport control on February 17, 2000, employees of the Zaliznychnyi District Department of the Main Department of the Ministry of the Interior of Ukraine in Kyiv seized both passports for verification. It revealed that the passport of Mr. Tushishvili, a citizen of Ukraine, was issued in violation of the requirements of the current legislation, and was destroyed. Also, officers of the Ministry of Internal Affairs lost the Soviet passport. From that moment on, real tests had started.

Mr. Tushishvili tried several times to legitimize his status in Ukraine somehow but in vain. After a man bought a housing in Kyiv in March 2002, the issue with the identity card has gained new momentum. Then the head of the State Department for Citizenship, Immigration and Registration of Individuals of the Ministry of the Interior of Ukraine in Kyiv proposed Mr. Tushishvili to file a claim with the court to establish the legality of his stay in the territory of Ukraine. The man did so.

During the next passport control on February 17, 2000, employees of the Zaliznychnyi District Department of the Main Department of the Ministry of the Interior of Ukraine in Kyiv seized both passports for verification. It revealed that the passport of Mr. Tushishvili, a citizen of Ukraine, was issued in violation of the requirements of the current legislation, and was destroyed. Also, officers of the Ministry of Internal Affairs lost the Soviet passport.

The Shevchenkivskyi District Court of Kyiv on November 26, 2007, established the fact that Gela Tushishvili permanently resides in Ukraine. After that the State Department for Citizenship, Immigration and Registration of Individuals in Kyiv satisfied his application for a permanent residence permit; the man was finally received a permanent residence permit, as well as a certificate of a stateless person, which is valid, when going abroad for a term of three years, and then, a new one instead of the expired one. For the first time during many years, Gela was able to go to Georgia and see his parents. It seemed that all restrictions in connection with the long non-recognition of the legal personality of Mr. Tushishvili by the state remained in the past. But it was too early to celebrate.

In 2015, on the basis of Article 9 of the Law of Ukraine “On Citizenship of Ukraine”, the man appealed to the bodies of the State Migration Service of Ukraine with a request to receive the citizenship of Ukraine. When waiting for the decision concerning this issue, after the second 3-year certificate for traveling abroad expired, Mr. Tushishvili returned it for exchange to the Solomenskyi Department of the State Migration Service of Ukraine [SMSU]. However, he was refused to receive a new travel document. At the same time, the man learned that according to the order of the State Migration Service of Ukraine, the decision to issue him a permanent residence permit was canceled. The reason for such a decision of the Migration Service was that the Office of the State Department for Citizenship, Immigration and Registration of Individuals of Ukraine in Kyiv issued the residence permit as if it was unreasonable. Because Mr. Tushishvili did not provide the original of the passport of a citizen of the former USSR of 1974 with a mark on registration.

The UHHRU’s public reception in Kyiv did not agree with the decision of the Migration Service, whom Mr. Tushishvili asked for help. According to them, employees of the Migration Service acted arbitrary, because in order to cancel the issuance of a residence permit, the immigration permit should be canceled before the permanent residence permit is withdrawn. Article 12 of the Law of Ukraine “On Immigration” contains an extensive list of grounds for the cancelation of the immigration permit. None of these grounds was applicable to Mr. Tushishvili’s case, – lawyers at the public reception said. In addition, a Soviet-style passport was lost by officers of the Ministry of the Interior, and consequently, the document was not provided not because the fault of Mr. Tushishvili. So, the Migration Service did not find anything better than shifting its blame on a man by canceling his 7-year-old decision about documentation of his permanent residence permit.

Commentary by Oleh Levytskyi, a lawyer at the Ukrainian Helsinki Human Rights Union:

“The striking violations of human rights that reveal the case of Tushishvili, unfortunately, are systemic in the activities of the bodies of the State Migration Service. The lawlessness of SMSU is cunningly interpreted as having so-called discretionary powers: if we want, we issue it (permissions, statuses, identity cards, citizenship) to them; if we want, we withdraw it.

Oleh Levytskyi, a lawyer at the Ukrainian Helsinki Human Rights Union
Oleh Levytskyi, a lawyer at the Ukrainian Helsinki Human Rights Union

The man arrived in Ukraine with a Soviet passport in 1994 and since then has been continuously residing in the territory of the state. Legally! In 1999, the man was documented by a passport of a citizen of Ukraine. In 2000, they changed their mind. His Ukrainian passport was canceled. His Soviet passport was taken away and lost. After years of struggle for “the right to a document,” in 2008, a permanent residence permit was finally issued. The man opened his own business, bought a home. However, in 2015, the State Migration Service of Ukraine changed their mind again. Officials canceled their own 7-years old decision and took away his residence permit. After 22 years of his life in the country, Mr. Tushishvili left with no ID. At the same time, this happened in the procedure for acquiring citizenship. The passport was not given; the certificate was taken away.

This practice is lawlessness and has nothing to do with the rule of law. Moreover, in this case it is a question of gross interference of the state with the rights guaranteed by the European Convention. Therefore, lawyers of the UHHRU’s public reception decided to intervene. The Ukrainian Parliament Commissioner for Human Rights also joined the case on the side of the plaintiff. The courts of the first instance and the court of appeal were on the side of our client. However, as it turned out, it’s too early to celebrate. Today it became known that SMSD filed an appeal to the court of cassation. So, the Supreme Administrative Court should say their opinion.”

By Tetiana Honcharuk

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