Human rights in the sphere of migration and international protection (“shelter”)
The chapter was prepared by experts of the Ukrainian Charity Organization “Right for protection” together with HIAS.
During 2015 problems of protection of human rights in the sphere of migration and shelter were the main theme on the agenda of the authorities for realization of the EU Action Plan on Visa Liberalization for Ukraine. However, no significant changes occurred in the standards of human rights protection in this sphere during that year. The quality of legislative initiatives of the government focused at problems solving is still quite low.
On March 11, 2015 the CMU adopted the Resolution No. 144 “On the standards of nutrition of foreigners who are confined or stay within Temporary Accommodation Centers for Illegal Migrants (TACIM) and Temporary Accommodation Centers for Refugees (TACR). However, under new rules dependents are to be given even less food than persons charged with crimes or serving sentences in penitentiary institutions. Moreover, new normative standards do not include dietary needs of dependents of TACIM and TACR, in particular those connected with the state of health or religious beliefs. It’s not strange that immediately after implementation of the Resolution in the middle of April 2015 dependents of one of TACIMs launched a hunger strike to protest against worsening of confinement conditions. The tension was relieved with the help of international organizations which started to purchase additional food supplies.
However, grounds for complaints against TACIM administration are much wider than insufficient nutrition according to the mass-media reports on the results of controlling confinement conditions in TACIM performed by procuracy authorities to response to mass statements of dependents of that TACIM. They informed on inadequate medical maintaining and unjustified long-term periods of detention. We should mention that the national legislation does not provide efficient possibilities to release foreigners and stateless persons from such institutions before the end of the maximum 12-month period regardless of obvious impossibility of compulsory expulsion of such persons and complete absence of alternative means of expulsion providing except putting to TACIM. Commenting demands of TACIM dependents, officials of State Migration Agency of Ukraine reported that there were no problems with observance of human rights in the sphere of migration and shelter and that the national legislation corresponded to European standards in these spheres.
In May, 2015 problems of national systems of managing migration and international protection (shelter) in Ukraine were seriously criticized by European Commission on monitoring of performing the Action Plan on Visa Liberalization by Ukraine. The state authorities recognized the presence of problems in the sphere of State Migration Agency of Ukraine that caused personnel changes in the agency and work activation on approximation of the national legislation. This process made the SMAU more open to objective criticizing and offers from the society and international organizations; however it did not solve all the problems.
Thus, in May, 2015 important changes were adopted considering the Order of the MIA of Ukraine No.649 “On approving the Rules of consideration of statement and executing documents necessary for solving the issue of recognizing as a refugee or as a person who needs complementary protection, forfeit and redemption of the status of a refugee and complementary protection and cancelling of the decision on recognizing as a refugee or as a person who needs complementary protection”. These amendments prolonged the term of validation of the Certificates on asking for protection in Ukraine that are documented by shelter searchers during the time of considering the issue of their status in Ukraine from 1-2 months to 3-6 months and specialize the procedure of prolongation of such certificates during consideration of complaints on decisions of migration agencies by the central office of the SMA of Ukraine and courts. They also eliminated certain procedural gaps in the process of consideration of a statement including on performing a court decision on reconsideration, they provided the possibility of providing interpreting through the means of videoconferencing. However, the practice of the authorities of the SMA of Ukraine evidenced complete inability of these new positive innovations to change the situation with searchers of protection in Ukraine for the better. The prolongation of validation term of Certificates on asking for protection had to simplify the access of shelter searchers to realization of rights provided by the Law of Ukraine “On Refugees and Persons in need of Complementary or Temporary Protection” as for: right for temporary employment, education, medical assistance, etc.
Evidently, the too short term of validation of the document caused a lot of difficulties to people who are asking for protection in Ukraine exposed to the risk of significant fines provided by the Article 203 of the Code of Ukraine on Administrative Offences (CUAO). It’s also supposed that the short term of validation of the document was the main obstacle in realization of the right of temporary employment that would help to avoid the situation of extreme need taking into account complete absence of any material support from the state. But prolongation of the period of validation of the Certificate on asking for protection appeared to be insufficient. As far as the sectoral legislation including the sphere of employment and any other economic activity and realization of the right for marriage, etc. requires the presence of identification documents by such a person and the Certificate on asking for protection is not such a document by its content. Moreover, employees of territorial departments of the SMA of Ukraine often did not apply the new procedure of treatment of such Certificates and continued the practice of applying short terms, especially on the stage of court appeal.
Territorial departments of the SMA of Ukraine continued to neglect their obligation of providing translation to persons asking for protection in Ukraine referring to the lack of money for providing translation. They continued to hand in to shelter searchers and required to sign important legal documents executed in Ukrainian without explaining their content in a language that is understood by applicants. Moreover, violating the demands of article 3 of the European Convention on human rights they refused to receive applications from shelter searchers if they did not provide a translator for themselves. Territorial departments of the SMA of Ukraine often required providing translations of their documents that were notary certified despite the fact the majority of such people did not have money even for food and house not to speak about money for translating and notary services.
At the end of the year another set of “cosmetic” positive changes to the Law of Ukraine “On refugees and persons who need additional or temporary protection” waited for the approval by the Verkhovna Rada of Ukraine. However the most painful problems of the national shelter system in Ukraine were passed over the reforms in the state, namely:
- Too short period for lodging a complaint against decisions of the SMAU concerning the status of a refugee or a person who needs complementary protection (5 working days after serving a notice on the decision and not the decision itself);
- The absence of budgetary funds to perform the obligation on providing by the SMAU authorities of translation for persons asking for protection in Ukraine at all stages of solving the question of their status including at the stage of access to the procedure;
- Inadequate quality of normative regulation of the procedure of appeal for protection in Ukraine, in particular because of excessive bureaucratization of the access to the procedure for the applicant, on the one side, and the absence of efficient procedural guarantees for the protection of his rights in case of application, on another, that enables cases of refusal by employees of the SMAU while accepting applications even without recording of the application;
- Inadequate quality of normative regulation of the procedure of assessment of appeals for protection that allows neglecting by employees of SMAU of proofs from authorized information sources about the situation with human rights in a state of their origin, to ignore rules of “distribution of burden of proof” in such cases and the principle of “explaining of benefit of the doubt”;
- The necessity to recognize the Certificate on asking for protection in Ukraine as an identification document or to amend the whole set of regulatory legal acts to provide access for shelter searchers to administrative (registration of marriages and childbirths, etc.), social and economic (certificates of deals, opening of bank accounts, payment of taxes, exaction, etc.) services necessary for realization of fundamental rights;
- The necessity to make amendments to Art. 42 of the Law of Ukraine “On the employment of population” and to annul the requirement of receiving permission for use of work of foreigners for employment of people who asked for protection in Ukraine;
- The disadvantages of treatment procedures of persons who need international protection on the inspection posts on the border of Ukraine for entrance and the absence of adequate procedural guarantees of protection of rights of those people who are not allowed to enter the territory of Ukraine and who are confined in border inspection posts, especially in international airports;
- The absence of efficient legal means in the form of “humanitarian” or any other status; regulation of the legal status of the people who are not subject to the Law of Ukraine “On Refugees and Persons in need of Complementary or Temporary Protection” or do not correspond to official requirements for receiving the permit for accommodation or staying in Ukraine on another grounds but they shall not be expelled from the territory of Ukraine including because of the obligations of Ukraine under international agreements in the sphere of human rights protection;
- The absence of political will to perform obligations of Ukraine according to the UN Convention relating to the Status of Refugees and European Convention on Human Rights and to ensure full, objective and unbiased assessment of applications of foreigners and stateless persons regarding their protection in Ukraine corresponding to international standards.
Unfortunately, during 2015 there were negative tendencies in practice of the SMAU considering issues on providing the status of a refugee or complementary protection. In contrast with the previous year the percent of granted applications by the SMA of Ukraine on protection has lowered. There were more cases of refusal to provide protection even in the cases of Syria refugees considering which refusal to provide protection is unacceptable regarding the situation in Syria. Cases of refusal to provide protection in Ukraine to shelter searchers from Belarus and the Russian Federation, who cannot return to the countries of their citizenship because of participation in the protests of “Euromaidan”, public nonconformance with the official position of governments of their countries considering the conflict in Ukraine and through the protection of territorial unity of Ukraine by the Armed Force of Ukraine and volunteer battalions, gained much publicity.
In the end we should mention that toward the end of 2015 the government of Ukraine developed the set of important legislative initiatives that now are to be approved by the Parliament or Government. First of all, this refers to: the Draft Law on amendments to the Code of administrative legal proceedings of Ukraine (considering immediate consideration by courts of lawsuits on obligatory expulsion of foreigners and stateless persons or providing admission of foreigners and stateless persons according to international agreements on readmission) No. 3154; the Draft Law on making amendments to some legislative acts of Ukraine to upgrade provisions of judicial protection of foreigners and stateless persons and regulation of certain issues related to the response to illegal migration No. 3159; the Draft Law on amendment to certain laws of Ukraine as for documents confirming the citizenship of Ukraine, proofs of identity or special status focused at EU visa regime liberalization for Ukraine No. 3224; the Strategy of the state migration policy of Ukraine for the period till 2025; the Conception of top-priority measures in order to reform State Migration Agency of Ukraine; the Conception of creation of the national system of identification of citizens of Ukraine, foreigners and stateless persons.
Unfortunately, despite the number of positive aspects present in these legislative initiatives we should state their significant conceptual internal nonconformance and blatant blindness concerning problems and priorities related to protection of human rights in the contex of migration and shelter.
- To review the standards of nutrition of foreigners who are confined or stay within Temporary Accommodation Centers for Illegal Migrants (TACIM) and Temporary Accommodation Centers for Refugees (TACR) approved by the Resolution No. 144 of the CMU in order to enhance nourishment value and to take into account dietary need connected with health condition or religious beliefs in case of providing nutrition for dependents from the mentioned institutions.
- To provide alternative means of expulsion instead of detention; efficient procedural guarantees of rights of foreigners in case of their detention in TACIM and in case of their detention in inspection posts on the border of Ukraine as a result of prohibition to enter the territory; judicial control of the legal grounds for detention of foreigners in TACIM to provide expulsion and in inspection posts on the border of Ukraine as a result of prohibition to enter the territory, Including periodical judicial considering of the legal grounds for detention of foreigners in the mentioned institutions.
- To increase procedural terms for appealing of decisions of administrative authorities considering the right of foreigner for staying in Ukraine. First of all, it concerns the increase of the period provided by the law for lodging a complaint against the SMAU decisions considering the status of a refugee or a person who need complementary protection from 5 working days to at least 1 month from the day of handing the corresponding decision. To regulate the legal status of persons who lodge a complaint against a decision to refuse to continue the term of staying, obligatory returning, etc.
- To consider efficient budget financing for proper performance of obligations by the SMAU to provide translation to persons asking for protection in Ukraine at all stages of solving the issue of their status, including at the stage of access to the procedure.
- To make amendments to the Law of Ukraine “On the Unified State Register of demographic and proof of citizenship of Ukraine identity or her special status” and the Law of Ukraine “On Refugees and Persons in need of Complementary or Temporary Protection” in order to recognize the Certificate on asking for protection as an identification document or to make amendments to the whole set of regulatory legal acts to provide access for shelter searchers to administrative (registration of marriages and childbirths, etc.), social and economic (certificates of deals, opening of bank accounts, payment of taxes, exaction, etc.) services necessary for realization of fundamental rights.
- To make amendments to Art. 42 of the Law of Ukraine “On the employment of population” and to annul the requirement of receiving permission for use of work of foreigners for employment of people who asked for protection in Ukraine.
- To modify the national legislation in the sphere of migration to conform to the requirements of Art. 8 of the ECHR (right to respect for private and family life) through approving in the Law of Ukraine “On migration” efficient (and not only official provided by the valid version) guarantees against expulsion of foreigners who have been living in Ukraine for a long period of time and to improve the mechanisms provided by the Law of Ukraine ”On the legal status of foreigners and stateless persons” considering regulation of the status of foreigners who shall not be expelled from the territory of Ukraine including by virtue of obligations of Ukraine under the international agreements in the sphere of human rights protection.
- To implement the standards of the UN Convention relating to status of stateless persons to the national legislation, in particular through the procedure implementation for stateless non-documentary persons identification and regulation of their legal status in accordance with the standards provided by the 1954 Convention relating to status of stateless persons.
 The term «shelter» is not used in this chapter in the controversial meaning given by the Article 7 of the Law of Ukraine “On the legal status of foreigners and stateless persons”; it’s used in the meaning providing by the Article 14 of the Universal Declaration of Human Rights that covers all the forms of international protection including the status of a refugee defined by the 1951 Refugee Convention etc.
 According to the standard specifications 2537 kilocalories, including 84 grams of proteins, 67 grams of fats, 392 grams of carbohydrates per day of dependents in TACIM and TACR against 3026.2 kilocalories including 95.09 grams of proteins, 90.81 grams of fats, 457.33 grams of carbohydrates for dependents in penal institutions, detention centers and reception centers.
 See p. 4 of the Art. 30, p. 17 of the Art. 4 and p. 15 of the Art. 5 of the Law of Ukraine “On the legal status of foreigners and stateless persons”, p. 1.8 and p.2.2 of the Instruction on compulsory returning and compulsory expulsion of foreigners and stateless persons from Ukraine adopted by the Order of the MIA of Ukraine, administration of SBGSU and SSU No. 353/271/150 dated 23.04.12., and also p. 15 of the Model Regulations on temporary accommodation of illegal foreigners and stateless persons in Ukraine adopted by the Resolution of the CMU No. 1110 dated 17.07.03р. regarding the decision of the ECHR in the case of Lokpo and Toure v. Hungary [Lokpo and Touré v. Hungary ], No. 10816/10 dated 20.09.11, where the ECHR determine the procedure that provides the opportunity of preschedule release of a foreigner from a migrants accommodation center because of the absence of a near-term perspective of expulsion realization only as an initiative of executive authorities that contradicts to the demands of the Art. 5(4) of the ECHR.
 See: http://zaxid.net/news/showNews.do?nelegali_u_tabori_dlya_bizhentsiv_na_volini_goloduyut_cherez_pogani_umovi_utrimannya&objectId=1348125&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+zaxid/rss_ua+%28Zadix.Net++%D0%92%D1%81%D1%96+%D1%83%D0%BA%D1%80.+%D0%BD%D0%BE%D0%B2%D0%B8%D0%BD%D0%B8%29.
 See 5th report of the European Commission about the progress of performing the Action Plan on Visa Liberalization by Ukraine dated 08.05.2015 on the link: http://ec.europa.eu/dgs/homeaffairs/elibrary/documents/policies/internationalaffairs/general/docs/fifth_progress_report_on_the_implementation_by_ukraine_of_the_action_plan_on_visa_liberalisation_en.pdf
 The short term of the validation of Certificate made it impossible to receive the permit on employment by such foreigners, the receiving of which is demanded by part 1 of Article 42 p.2 of the Law of Ukraine “On employment of the population” and made such people absolutely non-competitive on the Ukrainian labor market.
 Here we should mention that according to the Law of Ukraine “On refugees and persons who need additional or temporary protection” (see part 7 art.5, part.8 art.8 etc.) a foreigner or a stateless person asking for a status of a refugee in Ukraine is obliged to provide identification documents if applied to the competent authority of Ukraine with a corresponding statement. According to the law such documents are stored by competent authorities during the all period of solving the issue of providing protection to such a person until final refusal. Herewith the law does not provide the procedure of issuance of identification documents to a person even for a short period of time necessary for receiving ID number, opening a bank account, registration of childbirth, marriage registration, etc. Besides, a part of applicants regarding the circumstances that force them to leave the countries of their origin or cause impossibility of returning to such countries do not have valid identification documents and a possibility to receive/renew them through representative offices of foreign states.
 See p.3 part.1 of Art.1 of the Law of Ukraine “On refugees and persons who need additional or temporary protection”, in particular about problems of documentation of persons asking for protection in Ukraine: http://migrants.org.ua/sites/default/files/documents/ID%20dox%20draft%20law.pdf
 To explain practice of the ECHR see the decision in case M.S.S. v. Belgium and Greece No. 30696/09 dated 21.01.11, Conka v. Belgium No. 99 dated 05.02.02, Hirsi Jamaa and Others v. Italy 27765/09 dated 23.02.12 etc.
 See the Draft Law No. 3155 on making amendments to the Law of Ukraine “On refugees and persons who need additional or temporary protection”, on improving the procedure of documentation of persons.
See mutatis mutandis of the ECHR decision in the case Hirsi Jamaa and Others v. Italy No. 27765/09 dated 23.02.12 as for the obligation of providing access to the procedure of status determining – to take measures to accept potential shelter searchers and to document the intention to apply for protection, whether a person applied with an “application that was adequately filed” or not.
 See the ECHR decision in the case Saadi v. Italy No. 37201/06 dated 28.02.2008 for the assessment of the quality of the sources of information on the country of origin and accepting it as an adequate and efficient evidence of reasonability of fears of pursuit or abusive treatment
 See the ECHR decision in the case Signh and Others v. Belgium No. 33210/11 dated 02.10.12, R.C. v. Sweden 41827/07 dated 09.03.10 as for the content and procedure of application of the principle of “explaining the doubts in favor of the applicant” and the distribution of evidences in cases of shelter searchers in the light of the obligation of providing international protection that arises from the Article 3 of the ECHR.
 See §2 part 1 of Art.14 of the Law of Ukraine “On the legal status of foreigners and stateless persons” and p. 2 part 5 of art. 14 of the Law of Ukraine “On the border control” in the light of the ECHR decision in the case of Amuur v. France No. 19776/92 dated 25.06.96.
 For example, if it concerns the necessity of observance of the principle of absolute prohibition of removing according to art. 3 of the ECHR (see the ECHR decision in the case of Saadi v. Italy No. 37201/06 dated 28.02.2008), or in cases when expulsion will be disproportional intervening on the right of such a person to respect of his private or family life that had been formed in Ukraine (see mutatis mutandis in the ECHR decision in the case of Rodrigues da Silva and Hoogkamer v. The Netherlands No. 50435/99 dated 31.01.06).
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