Author
Ukraine became a State Party to the 1951 Convention and its 1967 Protocol without reservations on 10 January 2002. In addition, Ukraine is also a State Party to nearly all relevant human rights conventions, which include both International Covenants[1] and the European Convention on Human Rights.
On 24 December 1993, the Ukrainian Parliament adopted the Law on Refugees, which stayed in force until 31 July 2001. Further Law on Refugees remained in force from 21 June 2001 to 04 August 2011. On 08 July 2011, Ukraine adopted the Law on Refugees and Persons in Need of Complementary or Temporary Protection, which has been amended several times and remains in force to this day.
The Law on Refugees offers two forms of protection: refugee status and the status of a person in need of complementary protection. The national temporary protection status, foreseen in separate legislation, has never been activated. Hence, no one so far has received temporary protection granted in Ukraine.
The notion given to “refugee” aligns with the 1951 Convention and its 1967 Protocol, i.e., a person with a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, who is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail themselves of the protection of that country.[2] Complementary protection status is examined if it is concluded that the person does not meet the definition of a refugee and is conferred to a person who had to arrive in Ukraine due to a threat to their life and safety in a country of origin.[3]
The SMS is the principal executive agency responsible for the implementation of the migration and asylum policy.[4]
Overall, the Ukrainian legislation aligns with international standards, specifically with regard to the legislative regulation of the asylum procedure.[5] Ukrainian laws ensure access to social services, medical care, housing, and labour for asylum applicants, refugees, and persons in need of complementary protection.[6]
The steps of the asylum procedure may be described as follows:
Making an application
In case of regular crossing of the border, a person has five business days to make an application to a territorial body of the SMS. In Ukrainian legislation “making an application” is described as “an application for recognition as a refugee or a person in need of complementary protection”.[7]
In case of irregular crossing of the border, a person should, without delay, contact a territorial body of the SMS to make an application. In its 2009 resolution, the Plenum of the Supreme Administrative Court of Ukraine clarified that the term “without delay” must be understood as acting in good faith, at the earliest opportunity, i.e., without unreasonable delays.[8]
When crossing the border irregularly, a person may also address the SBGS with the intent to make an application. In such cases, a person should provide an explanation for the irregular border crossing into Ukraine. Following this, the SBGS shall hand over a person to the territorial body of the SMS within 24 hours.
When a person residing in Ukraine on a regular basis finds themselves in circumstances when they cannot return to the country of their origin, they shall contact a territorial body of the SMS to make an application, before the end of their period of regular stay in Ukraine.[9] If they apply after the end of their regular stay, they do not lose the right to apply for refugee status or complementary protection. However, in practice, the SMS often refuses to accept such applications and imposes a fine for staying in Ukraine without a valid legal basis.[10]
Registering and lodging the application
A territorial body of the SMS shall decide on registering and lodging the application within the same business day on which the application was made.[11] Ukrainian law refers to this stage as “deciding on the acceptance of an application for recognition as a refugee or a person in need of complementary protection”.[12]
If the SMS registers and lodges the application, it issues the individual a certificate of asylum applicant (MSID, “dovidka”) which is valid for one month.[13] At this stage, the SMS withdraws any national passport and/or identity documents from the applicant.[14]
The territorial body of the SMS may refuse to lodge 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.[15]
When the person appeals against the refusal to lodge the application and confirms the appeal, the territorial body of the SMS issues an MSID for three months. 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 (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.[16]
First instance procedure
The preliminary examination of the lodged application is performed by a territorial body of the SMS. At this stage, a territorial body of the SMS shall decide on the asylum application within 15 business days. In Ukrainian legislation, this stage is described as “preliminary consideration of applications”.[17]
During this stage, a territorial body of the SMS shall complete the following tasks:
- conduct an interview with the applicant;
- examine the information submitted by the applicant;
- draft a written conclusion regarding the decision of whether to proceed with further examination.
In case of a positive decision to proceed with the examination of the application, the term of MSID is extended for six months.[18]
The grounds for the rejection in the preliminary stage are the following:
- the application is manifestly unfounded, i.e., the conditions set forth in Article 1 of Law on Refugees for refugee status or person in need of complementary protection are absent;
- in case of a false identity of an applicant;
- subsequent application when the circumstances of an applicant have not changed since the previous application.[19]
The further examination of the application after the preliminary examination stage should be carried out within two months of the decision in the preliminary stage. The duration of the examination can be extended for up to three months.[20] In Ukrainian legislation, this stage is referred to as the consideration of an application after the positive decision to proceed with the examination of the application was upheld.[21]
A territorial body of the SMS performs the following steps during the further examination stage: conduct another interview with the applicant; send a request to the Security Service of Ukraine regarding the applicant; collect all documents concerning the application received in the course of the examination; draft a written conclusion in favour of or against granting the status of refugee or person in need of complementary protection.[22]
The completed package of documents shall be sent to the SMS headquarters. The headquarters shall examine the received profile of the applicant and decide on granting the relevant status within one month of receiving the applicant’s personal file and written conclusion. This time limit can be prolonged up to three months. The decision of the SMS shall be sent to a territorial body of the SMS. Within seven business days:
- In case of a favourable decision, the territorial body of the SMS shall issue a refugee certificate or a certificate of a person in need of complementary protection.
- In case of a negative decision, the SMS shall send the applicant a written notice setting out the reasons for the refusal and explaining the procedure for appealing such a decision.[23]
Appeal procedure
The Law on Refugees provides for the administrative review of asylum decisions before the SMS and for a judicial review (three instances) before the court in administrative proceedings. In case the territorial body of the SMS refuses to accept the application at the registering/lodging stage or if a negative decision to proceed to further examination of an application is taken, a person may appeal the decision either before the SMS or the Administrative Court within five business days. Similarly, a refusal to grant the status of refugee or person in need of international protection taken in the further examination procedure can be appealed before the Administrative Court within five business days.[24]
[1] International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. UN Human Rights Treaty Bodies, ‘Ratification Status for Ukraine’, available here.
[2] Article 1(1)(1) Law on Refugees.
[3] Article 1(4,13)(1) Law on Refugees.
[4] SMS, General Framework, available here.
[5] 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.
[6] Article 13, 15, Law on Refugees.
[7] Part II Law on Refugees.
[8] Plenum of the Supreme Administrative Court of Ukraine, Resolution on Court Practice of Consideration of Disputes Concerning Refugee Status and a Person in Need of Complementary or Temporary Protection, Forced Return and Forced Expulsion of a Foreigner or Stateless Person from Ukraine and Disputes Related to the Stay of a Foreigner or Stateless Person in Ukraine no.1, 25 June 2009, available in Ukrainian here.
[9] Article 5(1-2, 5) Law on Refugees.
[10] R2P practices.
[11] Section II(2.2) Rules for the Consideration of Applications.
[12] Section II Rules for the Consideration of Applications.
[13] Section III(3.2) Rules for the Consideration of Applications.
[14] Section III(3.1) Rules for the Consideration of Applications.
[15] Article 5(6) Law on Refugees.
[16] Section II(2.5) Rules for the Consideration of Applications.
[17] Section IV Rules for the Consideration of Applications.
[18] Section IV(4.1-4.5) Rules for the Consideration of Applications.
[19] Article 8(6) Law on Refugees.
[20] Article 9(1) Law on Refugees.
[21] Section V Rules for the Consideration of Applications.
[22] Section V(5.1) Rules for the Consideration of Applications.
[23] Article 10(13) Law on Refugees.
[24] Articles 8, 10, 12 Law on Refugees.