Author
Foreigners enter and leave Ukraine through checkpoints on the state border based on a national passport and in the presence of a visa, unless another entry procedure is established by the legislation or international treaties of Ukraine.[1] Ukrainian legislation provides only three types of visas for foreigners: transit, short term, and long-term.[2]
Prior to 2022, potential asylum seekers were only granted access if they clearly articulated their intention to apply for asylum immediately, even if they entered Ukraine on another basis, such as an invitation from friends, a student visa, or a tourist visa. According to the applicable legislation and instructions, the SBGS has a right to conduct a detailed interview when they suspect that the declared intention of the visit is not credible. During the process, they are obliged to provide an interpreter if needed.
Based on various sources of information, R2P is aware that during such clarification interview, the applicant may not articulate their wish to apply for asylum while being denied access for other reasons. At the same time, if they express such wish only after the decision of the SBGS to deny access to the territory, the SBGS often consider such attempts as an abuse of the procedure and do not accept the asylum claim as credible ground, even if the applicant is originally from the refugee-producing country.[3]
The ECtHR case O.M. and D.S. v. Ukraine illustrates the example of serious difficulties asylum seekers faced when trying to access asylum procedures while at the Ukrainian border.[4] The SBGS removed the first applicant from Ukraine without duly examining her claim despite her articulated intention to make an asylum application supplying it with the explanation.[5] In addition, the lawyer, representatives of the UNHCR, and the Parliament Commissioner were not allowed to meet with the applicants.[6]
According to the statistical data, in 2023, the SBGS issued 491 refusals to allegedly irregular migrants and detained 2,055 irregular migrants for illegally crossing the border, breaching the rules of staying in the territory of Ukraine and other violations.[7]
However, after introducing the law 2952-IX in February 2023, which is discussed in Section “Legal access to the territory”, R2P is unaware of any cases of seeking asylum at the border.
Border monitoring
In 2017, the UNHCR with the support of the EU Delegation in Ukraine, approached the MoI with a request to establish a mechanism for independent monitoring of access to asylum procedures in international transit zones at airports. The MoI provided a detailed response, which, while not immediately agreeing to implement such monitoring in the restricted areas of Ukrainian airports, including Boryspil, pointed to the need for a preliminary analysis of existing good practices in EU Member States.[8]
Since March 2022, monitoring has been carried out by UNHCR and partner organisations at border crossing points.
The UNHCR jointly with partner NGOs, R2P, NEEKA and The Tenth of April has been conducting monitoring at 30 border crossing points between Ukraine and Poland, Slovakia, Hungary, Romania and Moldova. Monitors have been providing legal aid and social assistance for those crossing the borders including for third-country nationals. Also, in 2023 R2P was examining access to the basic needs (potable water, WCs, shelters, heating, etc) in the border crossing points.[9] People leaving Ukraine named the security situation the main reason for the movement. Monitors also reported that third-country nationals frequently face obstacles to leave the country.[10] Individuals from the Russian Federation, Belarus, Uzbekistan, and Azerbaijan faced significant challenges, as they require visas to enter Moldova and the EU. With border closures and limited air connections, they are unable to travel directly to their home countries. As a result, these individuals find themselves in limbo, unable to leave Ukraine or legally remain there.[11]
In addition, monitors emphasised that the closure of border crossing points, such as Mohyliv-Podilskyi and Bronnytsia, during air raid alerts has a severe impact on travellers, including families with children. They are forced to wait in long queues in harsh winter conditions until the points reopen, with no bomb shelters available for civilians at these locations.[12]
R2P monitors concluded that at the time of the monitoring, the international checkpoints and the areas in front of them were not adequately provided with the conditions necessary to meet the basic needs of people.[13]
In addition, the Parliament Commissioner has access to the places of passenger transit facilities at state border crossing points without prior notice of the time and purpose of the visit.[14]
Legal access to the territory
Due to the lack of possibility to directly submit an application for international protection at the Ukrainian embassy or consulate in their country, asylum seekers wishing to arrive in Ukraine to apply for international protection must possess a valid passport document and visa.[15] As humanitarian visas are not provided for in Ukrainian law, asylum seekers may obtain a visa to enter Ukraine for another purpose, such as tourism or business, and then approach Ukrainian migration authorities to apply for international protection. This approach may be driven by a desire to avoid prosecution by the Ukrainian authorities or the danger of an irregular border crossing.
Expressing the intention to seek asylum at the border
The Ukrainian legislation does not foresee the specific border procedure.
In case of irregular crossing of the border, a person may express the intent to apply for international protection to the SBGS.[16] A person shall fill in the written form indicating the grounds of the intent to apply for asylum and reasons for the irregular crossing of the border. Following this, the SBGS has 24 hours after receiving the explanation for the irregular crossing of the border to refer the asylum seeker to the SMS.[17]
According to the Law on Refugees in order to declare their intention to seek asylum, a person has to inform the official border guards of their intentions, but often foreigners do not speak the language well enough to communicate effectively. However, through its above-listed sources, R2P had information that such interpretation is not always ensured by the SBGS. For those applicants who manage to articulate their asylum claim and are admitted to the territory the interpretation is usually provided through the assistance of their relatives/friends in Ukraine, or civil society organisations.
To address this issue, in January 2022, the Government amended the legislative act regulating the cooperation of the SBGS and the SMS regarding asylum applications. This change aimed to prevent unsuccessful submissions at border-crossing points due to a lack of knowledge and understanding of the Ukrainian language.[18] In order to ensure the possibility to apply for protection by persons, who do not speak/understand Ukrainian, while being on the state border of Ukraine, the SBGS officers shall engage, including remotely, an interpreter from the informational resource “Registry of Interpreters”, managed by the SMS. Another person, who fluently speaks the Ukrainian language and the language which is necessary for interpretation or written translation from Ukrainian to another language, also, can be engaged by the SBGS officer.[19]
The number of applications received through the SBGS by the SMS remains comparatively small. It should be also mentioned that statistical reports of SMS and SBGS do not match supposedly due to improperly linked databases and low quality of data communication. In addition, it is monitored that SBGS has limited capacity to identify persons with international protection needs, as well as other vulnerable persons, such as victims of trafficking, among the flow of migrants and to prevent their refoulement.
Throughout 2020 and 2021, the UNHCR continued to receive reports of asylum-seekers being refused access to the asylum process by the SBGS, leading to their return to their country of departure. For instance, on 23 December 2020, an asylum-seeker from Iraq, despite expressing his intent to seek asylum verbally and in writing in Arabic and English to the SBGS officers, was sent back to his departure country. Similarly, on 13 July 2021, an asylum-seeker from Tajikistan, upon informing the SBGS of his asylum intentions, was denied entry at Boryspil International Airport near Kyiv. Following a monitoring visit by the UNHCR partner and the representative of the Parliament Commissioner, the asylum-seeker was eventually permitted entry into Ukraine to apply for asylum.[20]
Persons from refugee-producing countries face obstacles when trying to entry to Ukraine in large numbers. This has been the case of, for example, Syrian nationals, of whom 181 were prohibited from entry in 2020, and 291 in 2019.[21]
In 2021, 441 foreigners applied to the SBGS officers with asylum applications, among them 357 citizens of Afghanistan who arrived in Ukraine on evacuation flights in August-September 2021.[22]
However, in 2022, the situation was changed drastically due to the full-scale invasion and further evolved in 2023 with the adoption of the Law no. 2952-IX.
In February 2023, the Parliament adopted the Law on Amendments to Certain Legislative Acts on Protection of the State Border no. 2952-IX which limits the right to apply for asylum at the border. In addition, the proposal grants the State Border Guard Service and the Security Service’s discretionary powers to forcibly deport foreigners and stateless persons without a court order. In the stage of Draft Law, the 2952-IX was widely criticised by UNHCR[23] and the NGO sector.[24]
New legal amendments provide for the non-admission of third-country nationals to the territory of Ukraine and the Ukrainian asylum procedure in the following circumstances:
- when a person concerned has received an entry ban by an authorised body;
- when a person concerned has reached Ukraine from a country where their life and freedom are not in danger;
- when a person concerned irregularly attempts or crosses the border of Ukraine to a third country, while martial law is in force;
- when a person concerned is returned to Ukraine under a readmission agreement, while martial law is in force.[25]
These new provisions do not include an assessment of individual circumstances, nor do they offer the possibility to appeal decisions denying access to the territory or the asylum procedure.[26]
The absence of an effective judicial remedy against decisions made by the SBGS to prohibit entry into the territory poses a significant gap. This gap is particularly concerning given the practical barriers encountered by asylum seekers attempting to access the asylum process in airport transit zones and ports. Despite the acknowledgement by the Government of Ukraine regarding the issue,[27] the lack of an effective appeal mechanism against entry denials remains unresolved. While there are provisions for appealing such decisions in domestic law, the lack of suspensive effect and inadequate guarantees for prompt examination hinder its effectiveness. The lack of access to a lawyer or interpreter in transit zones is a further serious obstacle to exercising a judicial remedy.[28]
According to State information, in 2022, 13 foreigners applied to the SBGS officers with asylum applications (including 8 – before 24 February 2022 and 5 – after 24 February 2022). Additionally, 6 foreigners applied while staying in the temporary detention facilities at the border in 2022 and one foreigner filed an asylum application with the SBGS officer during their stay in the temporary detention facilities in 2023. As of 2024, no one has applied for protection at the border-crossing points.[29]
Regarding resettlement, the UNHCR used to provide resettlement for a very small number of refugees in Ukraine. However, due to the decreasing number of slots globally, the UNHCR in Ukraine no longer receives a resettlement quota.[30]
[1] Article 9 Law on the Legal Status of Foreigners and Stateless Persons.
[2] MFA, Visa to Ukraine, 23 October 2019, available in Ukrainian here.
[3] R2P.
[4] ECtHR, O.M. and D.S. v. Ukraine, App. 18603/12, Judgment of 15 September 2022, available here.
[5] ECtHR, O.M. and D.S. v. Ukraine, App. 18603/12, Judgment of 15 September 2022, available here, para. 21-31, 95.
[6] ECtHR, O.M. and D.S. v. Ukraine, Application no. 18603/12, Judgment of 15 September 2022, available here, para. 41.
[7] SBGS, Results of Operational and Service Activities of the State Border Guard Service, available here.
[8] UNCHR.
[9] R2P, Arrangement of International Border Crossing Points and Areas in front of them. Monitoring Study (September 2022 – February 2023), 04 August 2023, available in Ukrainian here.
[10] UNHCR, Border Monitorings, September-December 2023, available here.
[11] UNHCR, International Border Crossing Points, November 2023, available here.
[12] UNHCR, International Border Crossing Points, December 2023, available here.
[13] Ibid, e.g.19.
[14] Article 13(8) Law on the Parliament Commissioner.
[15] Article 9 Law on Foreigners.
[16] Article 5(2) Law on Refugees.
[17] Para. 4 SBGS Instruction.
[18] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine, 23 January 2023, available here.
[19] Section I(3) SBGS Instruction.
[20] Committee of Ministers, Communication from an NGO (16/11/2021) in the case of Kebe and Others v. Ukraine (Application No. 12552/12) and reply from the authorities, 23 November 2021, available here.
[21] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine, 14 November 2018, available here.
[22] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine, 23 January 2023, available here.
[23] UNHCR, UNHCR Comments on the Draft Law of Ukraine on Amendment of Certain Laws of Ukraine on the Protection of the State Border of Ukraine, November 2022, available here.
[24] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine, 23 January 2023, available here.
[26] UNHCR, UNHCR Comments on the Draft Law of Ukraine on Amendment of Certain Laws of Ukraine on the Protection of the State Border of Ukraine, November 2022, available here.
[27] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine (Application No. 12552/12), Nur Ahmed and Others v. Ukraine (Application No. 42779/12) and M.S. v. Slovakia and Ukraine (Application No. 17189/11), 2017, available here.
[28] Committee of Ministers, Communication from Ukraine concerning the case of Kebe and Others v. Ukraine, 23 January 2023, available here.
[29] Committee of Ministers, 1507th meeting (September 2024) (DH) – Action plan (02/07/2024) – Communication from Ukraine concerning the group of cases of Kebe and Others v. Ukraine, 11 July 2024, DH-DD(2024)779, available here.