Author
The territorial body of the SMS is responsible for registering the asylum application. No other authority may decide on accepting to register an application at first instance. Asylum applications at the external representation body of Ukraine are not foreseen.
It is worth mentioning the S.A. v. Ukraine[1] case before the ECtHR in the context of the SMS’s exclusive authority to register asylum applications. In 2019, a Tajik citizen, while detained at the pre-trial detention facility, filled out the asylum application form, which was sent by the police department to the SMS. The SMS, without examining the asylum application on the merits, instructed the applicant to submit the application in person or through the prison administration where the applicant was detained. The second attempt to submit the asylum application was never received by the SMS. Further, the General Prosecutor’s Office of Ukraine decided to extradite the applicant to Tajikistan. The appeal against the extradition decision was refused by a final decision of the Kyiv Court of Appeal. The domestic courts ruled that the decision to extradite the applicant had been lawful, particularly based on information provided by the SMS indicating that the applicant had not lodged an asylum application.
Although the European Court of Human Rights found a violation of the procedural limb of Article 3, the Government’s position in the case reveals the strict interpretation of the mechanism of duly making and registering the asylum application.
Expressing the intention to seek asylum in a Migration Custody Centre
If a person declares their intent to make an asylum application to the MCC administration, the latest shall provide the information regarding the possibility of addressing the application to a territorial body of the SMS. In addition, the MCC administration immediately notifies by means of electronic communication a territorial body of the SMS and the relevant authority body which placed a person to the MCC of their intention to apply for asylum.
In case a person applies to the MCC administration for the issuance of an application for recognition as a refugee or a person in need of complementary protection, to be considered by a territorial body of the SMS, the MCC administration shall send the application by recorded post to a territorial body of the SMS on the same day with simultaneous notification of this body by means of electronic communication. A copy of the notice of sending the application and the e-mail shall be attached to the person’s personal file.[2]
A territorial body of the SMS shall, within the next business day, inform the MCC of whether it accepts or refuses to lodge the application. The applicant shall stay in the MCC until a final decision on their application has been made.
In 2023, as reported by R2P, persons could freely submit their intent to apply for asylum to the Volyn MCC administration. However, all applicants received a letter from the Volyn territorial body of the SMS with a refusal to accept to lodge the application, putting them in legal limbo and at risk of deportation.[3]
In a situation where the authorities initiate the expulsion of a person whose application was submitted to the SMS through the administration of the MCC, but the SMS refused to accept it outside the procedure provided by the Law on Refugees, the fact that an application for refugee status has been made may be taken into account by the court but does not have an automatic suspensive effect on the expulsion procedure. Court practice on this issue is not uniform, since the making of an application does not mean its automatic lodging and consideration. R2P experienced a case where the expulsion took place under the above circumstances, despite proper legal assistance.
In 2022, 20 persons submitted asylum applications during their stay in MCC and 24 persons in 2023.[4]
Registration at the territorial body of the SMS
In case of regular crossing the border, a person has five business days to make an application to the territorial body of the SMS.[5] In case of irregular crossing the border with the intent to be recognised as a refugee or person in need of complementary protection, a person is obliged to immediately address the territorial body of the SMS for making the asylum application.[6]
The territorial body of the SMS shall decide on registration and lodging of the application within the same business day on which the application was made.[7]
Ukrainian legislation does not distinguish between the stages of registering and lodging. As soon as the intention to apply for asylum is registered, the procedure is completed and moved to the preliminary examination. During the registration stage the territorial body of the SMS:
- registers the application and submitted documents;
- acquaints the applicant or their legal representative with the procedure for making a decision on their application, their rights and obligations under their own signature;
- performs fingerprinting of the person;
- if necessary, refers the person for examination to establish their age;
- explains the procedure for applying for free legal aid;
- enters the received information into the centralised information system.[8]
The territorial body of the SMS issues an MSID, a document confirming that an asylum applicant has requested protection in Ukraine, upon the lodging of the asylum application. The MSID is valid for one month. The MSID certifies the legality of a person’s stay on the territory of Ukraine until their status is finally determined or until they leave Ukrainian territory.[9] However, the MSID is not an ID document in terms of Ukrainian legislation. Given that national passports and IDs are withdrawn when lodging the application, an asylum applicant is deprived of any ID while their case is under examination. This restricts their access to medical and social services.
The territorial body of the SMS may refuse to register the application in the following cases:
- a person is claiming to be another person;
- subsequent application when the circumstances of an applicant have not changed since the previous application.[10]
The list of conditions for refusal is exhaustive and the territorial body of the SMS can not invoke other reasons to reject the applications at this stage. Additionally, the territorial body of the SMS shall not examine the case on the merits during the registration of the application.
However, there are cases where the territorial body of the SMS denied registering/lodging the application invoking the absence of the conditions provided for in Article 1(1,13) of the Law on Refugees, i.e., the conditions required to be recognised as refugees or persons in need of complementary protection. In 2018, the Supreme Court emphasised that by denying registration for the mentioned reasons, the SMS violated the procedure for reviewing a person’s application, which led to erroneous and premature conclusions.[11]
When a person appeals the refusal to register and lodge the application within five working days and confirms their appeal, the SMS issues an MSID for three months.[12] The appeal is confirmed by, for the administrative review, providing a copy of the complaint against the decision of the territorial body of the SMS along with documents attesting the complaint has indeed been sent or, in case of appeal in court, i.e. for the judicial review, a copy of the statement of claim with a stamp of the court on its acceptance or a copy of the court decision to open proceedings or a duly executed court summons.[13]
Asylum seekers face a number of hurdles when trying to apply for asylum in Ukraine.
First of all, failure to comply with the application deadline of five days even for valid reasons (such as illness, general illiteracy or lack of knowledge of the Ukrainian language and/or ignorance of the existence of an international protection procedure) is grounds for denial of registration of the asylum application by the SMS and the courts.[14]
On this matter, prior to the full-scale invasion in 2022, the SMS had accepted the non-binding position of the Plenum of the Supreme Administrative Court of 25 June 2009 no. 1.[15] The Plenum had pointed out that the legislation does not provide for sanctions for making a delayed application for refugee status. Thus, in such cases, persons may only be subject to a fine under the Code of Administrative Offences. Failure to accept to register an asylum application and the forced return or expulsion of an applicant would be contrary to the protection of fundamental rights under the 1951 Convention. Failure to comply with the deadline may not be a ground for refusal to register an application for recognition as a refugee or a person in need of complementary protection, but can only be taken into account when assessing the relevant application on the merits.
However, after 24 February 2022, the territorial body of the SMS began to invoke the non-respect of the time limit as grounds for refusing to register the asylum application. In such cases, the SMS does not issue a written notice of refusal to accept the application but instead provides an oral denial, as the asylum legislation does not recognise failure to meet the deadline as a legal ground for refusal to accept it. Relevant court practice demonstrates that the courts recognise that the following actions of the SMS, namely non-acceptance of an application due to the applicant having missed the deadline to apply, are unlawful inaction and the courts oblige the SMS to accept the application of the asylum seeker.[16] At the same time, there are judgments where the courts consider that the SMS has the right not to accept applications due to the violation of the deadline for filing the relevant application.[17]
Also, since the full-scale invasion in 2022, the SMS territorial bodies have used martial law as a justification for having ceased to register or process applications. This is despite the fact that neither the Law on the Legal Regime of Martial Law nor the Decree of the President of Ukraine “On extending the term of martial law in Ukraine” restrict the right of the person to seek asylum in Ukraine.[18]
In addition, the SMS may refer to Article 9 of the Convention on Refugees of 1951, invoking national security considerations. In public comments on the Draft Law of Ukraine on Amendment of Certain Laws of Ukraine on the Protection of the State Border of Ukraine, UNHCR highlighted that the language of Article 9 does not support the idea that derogation in exceptional circumstances is permissible regarding the right to apply for international protection.[19]
Furthermore, asylum seekers are sometimes denied registration without an appropriate legal written notice by the SMS. However, a refusal to register the application should be given in written form.[20] Asylum seekers should submit applications and documents to a territorial body of the SMS personally.[21] Thus, in situations when a territorial body of the SMS verbally refuses applicants to register their documents, applicants have no evidence that they visited a territorial body of the SMS and attempted to register an application.
If, on the date of application, the applicant is already in Ukraine without legal grounds, the State Migration Service (SMS) will only accept their application after imposing administrative liability, which includes a fine. This applies specifically to individuals who previously had a legal stay in Ukraine, but whose status expired before they submitted their application. Even if they can provide reasons for the delay, the fine still applies.
In 2022, R2P and HIAS conducted a survey among third-country nationals examining their obstacles in obtaining protection in Ukraine after the full-scale invasion. 17 % of the survey respondents reported being fined or detained for irregular stay or entry, or are at risk of deportation to the country they fled. Some respondents were fined when they contacted the SMS to apply for asylum, while others were blocked from obtaining their asylum applicant document (MSID).[22]
Human rights organisations are trying to address the issue of the non-acceptance of asylum applications through advocacy activities, including regular communication with relevant authorities, public statements[23] and communication from NGOs with the Committee of Ministers regarding the execution of the Kebe and Others v. Ukraine case.[24]
In addition, asylum seekers resort to appealing the refusal of the territorial body of the SMS to accept the application before the court. In 2023, R2P noted[25] that courts of first and second instances in various regions of Ukraine were deciding on the interests of asylum seekers in lawsuits regarding the inaction of the territorial body of the SMS in accepting applications.[26]
If the refusal is appealed and a positive court decision is obtained, the SMS shall accept the application. In such cases, it may take 1-2 years from the moment the asylum seeker actually makes an application to the moment the application is duly accepted.[27]
[1] ECtHR, S.A. v. Ukraine, Application no. 7445/21, 24 February 2022.
[2] Section III(13) Instruction on the Detention of Foreigners.
[3] R2P, Internal report, 2023.
[4] 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.
[5] Article 5(1) Law on Refugees.
[6] Article 5(2) Law on Refugees.
[7] Section II(2.2) Rules for the Consideration of Applications.
[8] Article 7(12) Law on Refugees.
[9] Article 1(1)(3) Law on Refugees.
[10] Article 5(6) Law on Refugees.
[11] Supreme Court, case no. 815/1016/16, 26 February 2018, available in Ukrainian here.
[12] Section II(2.5) Rules for the Consideration of Applications.
[13] Section II(2.5) Rules for the Consideration of Applications.
[14] Coalition of Non-Governmental Organisations, Interim report “State of observance of the rights of refugees, asylum seekers and stateless persons in Ukraine”, 2020, available here.
[15] Resolution of the Plenum of the Supreme Administrative Court of Ukraine on Judicial Practice of Disputes Concerning Refugee Status.
[16] Sixth Administrative Court of Appeal, case no. 320/13964/23, 23 April 2024, available in Ukrainian here; Sixth Administrative Court of Appeal, case no. 320/13292/23, 29 March 2024, available in Ukrainian here.
[17] Sixth Administrative Court of Appeal, case no. 320/12446/23, 19 December 2023, available in Ukrainian here.
[18] R2P&HIAS, Asylum Seekers and Refugees in Ukraine Addressing Protection Risks During Wartime, 05 April 2023, available here.
[19] 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.
[20] Section II(2.4) Rules for the Consideration of Applications.
[21] Article 7(1) Law on Refugees.
[22] R2P & HIAS, Asylum Seekers and Refugees in Ukraine Addressing Protection Risks During Wartime, 05 April 2023, available here.
[23] R2P, The position of CSOs regarding the prevention of violation of the rights of refugees during the martial law in Ukraine, 21 June 2023, available here.
[24] Committee of Ministers, Communication from NGOs (The European Council on Refugees and Exiles (ECRE), Charitable Fund “Right to Protection” (R2P) and CO “The Tenth of April” (TTA)) (31/08/2023) in the case of Kebe and Others v. Ukraine (Application No. 12552/12) and reply from the authorities (14/09/2023), 31 August 2023, available here.
[25] R2P, Internal report, 2023.
[26] Kyiv District Administrative Court, case No. 320/13964/23, 19 June 2023, available in Ukrainian here.
[27] R2P practices.