Author
Border control[1] is the state control carried out by the SBGS, which includes a set of actions and measures aimed at establishing legal grounds for crossing the state border by individuals, vehicles, and the movement of goods across it. Border control is conducted regarding individuals crossing the state border; vehicles transporting persons and goods across the state border; and goods being moved across the state border.
Border control includes: document verification; inspection of individuals, vehicles, and goods; carrying out instructions of authorized state bodies of Ukraine; verification of foreign nationals and stateless persons’ compliance with the conditions for crossing the state border when entering Ukraine, exiting Ukraine, and transiting through Ukraine’s territory; registration of foreign nationals, stateless persons, and their passport documents at border crossing points; inspection of motor vehicles to detect stolen vehicles.[2]
National legislation foresees preliminary checks that may be applied to third-country nationals at the point of entry, regardless of whether they apply for asylum. Officers, units, and personnel of the SBGS, who may be engaged in operational duties, are authorized to check the documents of persons crossing the state border of Ukraine. These checks include verifying the right to enter or exit Ukraine, making relevant marks in travel documents, and, in cases provided by law, temporarily detaining or seizing such documents. In addition, the SBGS has the authority, subject to agreements with air carriers, to carry out preliminary checks at foreign airports regarding the legal grounds for entry into Ukraine of foreign nationals and stateless persons.[3]
In addition, national legislation provides for surface checks on individuals, goods, and vehicles located in the controlled border area, at border crossing points (control points) through the state border of Ukraine, or at entry/exit control points. These checks are carried out in the following cases:
- if an individual violates or attempts to violate the border regime, the regime at border crossing points (control points), the regime at entry/exit control points, or harms the interests of Ukraine’s national security;
- if an individual is found within the border zone without the proper authorization;
- if there are grounds to believe that a vehicle contains a violator or a person whose freedom is unlawfully restricted;
- if there are grounds to believe that an individual or their vehicle contains items whose circulation is prohibited or restricted, or that pose a threat to the life and health of individuals;
- if a vehicle or item belonging to an individual is used as a tool for committing an offence and/or is located in a place where an offence may have been committed;
- in other cases provided for by law or a court decision.
A surface check involves a visual inspection of the individual, including a hand search of the clothing surface, using a special device or tool. It also includes a visual inspection of the person’s belongings to check for items whose circulation is prohibited or restricted or that pose a threat to the life and health of the individual or others.
Surface checks are conducted by military personnel and employees of the SBGS of Ukraine of the same gender as the person being checked. In urgent cases, a surface check may be conducted by any authorized officer of the SBGS, provided that a special device or tool is used.
During a surface check, military personnel and employees of the SBGS have the right to demand that the person open their bag, backpack, briefcase, sack, or other means of transporting items, the hood, the trunk lid, and/or the vehicle’s cabin doors. The individual must show the contents of their personal belongings, pockets, and allow access to the structural elements of the vehicle, ensure the opening of the hood, the trunk lid, and/or the doors of the vehicle, trailer, or cargo (container).[4]
However, no health and vulnerability checks are conducted.
The national authority responsible for border control and preliminary checks is the SBGS. During border control, officials and employees of the State Border Guard Service of Ukraine exercise their powers within the limits set by the Constitution of Ukraine, the Law on Border Control, the Law on SBGS, other legislative acts of Ukraine, as well as international agreements of Ukraine.
There is no specific maximum time limit by which the border control and checks must be completed. The border control begins when the individual submits their passport and other required documents for inspection to the authorized officer of the SBGS. Border control is considered completed once the authorized officer of the SBGS grants permission for the individual, vehicle, or goods to cross the state border or informs the individual of the decision to refuse the crossing of the state border.[5]
Border control and the crossing of the state border by individuals, vehicles, and goods take place under the following conditions:
- At border crossing points;
- Outside border crossing points;
- On the territory of adjacent states in case of joint control over the crossing of the state border by individuals.
Individuals, vehicles, and goods cross the state border at border crossing points during the operating hours of those points. The operating hours of a border crossing point that is not open 24/7 are displayed on the information board before entering the point.
Border crossing may also occur outside border crossing points or during non-working hours at border crossing points in the following cases: the arrival of a yacht at a port or its departure from a port; coastal fishing; the navigation of river and sea vessels along inland waterways; the landing of the vessel’s crew to stay in the locality where the port is located; emergence of special humanitarian needs for individuals or groups, provided there are no threats to Ukraine’s national security; the occurrence of urgent circumstances related to eliminating the consequences of man-made and natural emergencies or threats to life, provided there are no threats to national security.[6]
SBGS has the right to carry out administrative detention of individuals on the grounds and for the periods specified by law, including foreigners and stateless persons who have unlawfully crossed the state border of Ukraine, for whom a decision has been made following the established procedure to transfer them to the border authorities of a neighbouring state, for the time necessary for such transfer. The DPSU also has the authority to carry out, in accordance with instructions from law enforcement agencies of Ukraine, the detention at border crossing points of individuals who are crossing the state border of Ukraine, individuals crossing the entry-exit control points, and those wanted on suspicion of committing a crime, evading law enforcement authorities and judicial proceedings, avoiding serving a criminal sentence, and in other cases specified by the legislation of Ukraine. Individuals detained administratively are held in MTT.[7]
Persons who have unlawfully crossed or attempted to unlawfully cross the state border of Ukraine, violated border regime, rules at border crossing points, or control points for entry-exit, committed flagrant disobedience to the lawful order or demand of a military serviceman or employee of the SBGS or a member of a public formation for the protection of public order and the state border, as well as foreigners and stateless persons who have violated the legislation on the legal status of foreigners and stateless persons or failed to comply with a decision on a ban on entry into Ukraine, may be detained for up to three hours for drawing up a protocol, and, if necessary, for identifying the person and/or clarifying the circumstances of the offence – up to three days.[8]
SBGS grants permission to a foreigner or a stateless person to cross the state border when entering Ukraine under the following conditions:
- The person has a valid passport document;
- There is no decision from the authorized state body of Ukraine imposing a ban on entry to Ukraine;
- The person has an entry visa, unless otherwise stipulated by Ukrainian law;
- The person provides confirmation of the purpose of their planned stay;
- The person has sufficient financial means for the duration of their planned stay and for returning to their country of origin or transiting to a third country, or has the ability to obtain such financial means in a legal manner within Ukraine (for nationals of countries listed by the Cabinet of Ministers of Ukraine, and for stateless persons permanently residing in such countries);
- The person complies with the requirements regarding the duration of stay in Ukraine.[9]
If a foreigner or a stateless person does not meet one or more of the above entry conditions, they are denied permission to cross the state border only by a reasoned decision of the State Border Guard Service (DPSU), specifying the reasons for the refusal. Such a decision takes effect immediately. The decision to deny entry across the state border is issued in two copies. One copy of the decision is given to the person, who confirms receipt of the decision by signing both copies. In case the person refuses to sign the decision, an act is drawn up.
A person who has been denied permission to cross the state border has the right to appeal the decision within one month from the date of the decision to a higher-level body of the SBGS or to the administrative court at the location of the respective body (this procedure is described in the Section “Appeal”). The appeal of the decision does not suspend its effect.[10]
Failure by a foreigner or a stateless person to comply with the conditions for crossing the state border upon entry into Ukraine does not prevent the consideration of their application for asylum or recognition as a refugee or a person in need of complementary protection in Ukraine, in accordance with the law.[11]
However, according to the Law on Amendments to Certain Legislative Acts on the Protection of the State Border, No. 2952-IX, adopted in February 2023, the right to apply for asylum at the border is restricted. Additionally, the law grants the State Border Guard Service and the Security Service the discretion to forcibly deport foreigners and stateless persons without a court order. More details can be found under Expressing the intention to seek asylum at the border.
[1] The above-mentioned information in this section applies to all forms of border crossing (land borders, sea borders and air borders).
[2] Article 2 Law on Border Control.
[3] Article 20 Law on SBGS.
[4] Article 21-7 Law on SBGS.
[5] Article 6 Law on Border Control.
[6] Article 5 Law on Border Control.
[7] Article 20 Law on SBGS.
[8] Article 263 Code of Administrative Offences.
[9] Article 8 Law on Border Control.
[10] Article 14 Law on Border Control.
[11] Article 8 Law on Border Control.