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The Refugee Law defines a safe third country as a country in which the person resided before arriving in Ukraine, except in cases of transit through the territory of such a country, and could apply for recognition as a refugee or a person in need of complementary protection. Further, the law sets the list of criteria for the safe third country:
- adheres to international human rights standards in the field of asylum;
- adheres to the international principles of refugee protection as set out in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees;
- has national asylum and refugee legislation and its relevant state authorities determine refugee status and grant asylum;
- provides the person with effective protection against refoulement and the opportunity to apply for and enjoy asylum;
- agrees to accept the person and provide them with access to the procedure for determining refugee status or granting subsidiary protection.[1]
Article 6 of the Law on Refugee states that a person who, prior to arriving in Ukraine with the intention of being recognised as a refugee or a person in need of complementary protection, resided in a third safe country cannot be recognised as a refugee or a person in need of complementary protection. This provision does not apply to children separated from their families, as well as to persons who were born or permanently resided in Ukraine, and their descendants.
The courts often cite the incorrect application of the “safe third country” concept by the SMS, which led to illegal refusal in granting of the protection[2]. Despite the Law providing a clear definition of “safe third country”, the Supreme Court also indicates the incorrect using of it by the lower courts. Thus, its resolution of 08 July 2019 points out that the lower court did not consider the short term of staying in the third country and the fact that the applicant was under the full control of the transporter and, as a result, had no access to the migration service.[3]
[1] Article 1(22) Law on Refugees.
[2] Supreme Court, R2P, Review of the Supreme Court’s Practice in Disputes Concerning the Recognition of Persons as Refugees or Persons in Need of Complementary Protection (for the period from 2018 to 2021), 2021.
[3] Supreme Court, case no. 826/6841/16, 18 July 2019, available in Ukrainian here.