Author
General (scope, time limits)
Two principal legislative acts establish the regular asylum procedure:
- The Law on Refugees of 8 July 2011.
- Rules for the Consideration of Applications of 7 September 2011 No. 649.
Preliminary examination
When the asylum application is registered and lodged, the SMS within 15 business days shall examine the application and consider it for further examination.[1] This stage consists of an interview with the applicant, medical screening and preparation of a short assessment for further examination.[2]
The assessment must refer to the information relating to the applicant’s country of origin, including the titles of the information reports, years and institutions that prepared it, a link to the web addresses, and its correspondence with the statement and information obtained during the interview with the applicant. This conclusion should include references to accurate, up-to-date information from multiple sources.[3]
At this stage, the SMS respects the terms, and by the established deadline either rejects the application, or decides to proceed with further examination, consequently prolonging the MSID.[4]
Grounds for rejection at the preliminary stage are the following:
- application is manifestly unfounded, i.e., the conditions set forth in Article 1 of Law on Refugee for refugee status or person in need of complementary protection are absent;
- in case a false identity of an applicant;
- subsequent application when the circumstances of an applicant have not changed since previous the application.[5]
The first ground is much broader than the concept of “manifestly unfounded” in EU asylum practice, or according to UNHCR’s standards. The logic is circular: asylum-seekers have to prove that they need international protection to have an opportunity to present their case in full.[6]
Further examination
If SMS decides on the processing of the documents to determine the issue of recognition as a refugee or a person in need of complementary protection, the MSID is extended for six months.[7]
The further examination of the application passed through preliminary examination is performed also by a territorial body of the SMS. The examination of the application should be carried out within two months. The duration of the examination can be extended by up to three months by the head of a territorial body of the SMS upon a substantiated submission of the employee considering the application.[8]
This stage also comprises of an interview, verification of the applicant by the State Service of Security and drafting of an assessment on recognition or refusal of recognition as a refugee or a person in need of complementary protection.[9]
The assessment must refer as well as during the preliminary stage to the information relating to the applicant’s country of origin, including the titles of the information reports, years and institutions that prepared it, a link to the web addresses, and its correspondence with the statement and information obtained during the interview with the applicant. This conclusion should include references to accurate, up-to-date information from multiple sources.[10]
However, it was reported that SMS staff members, when preparing assessments for decision-making, use Wikipedia, travel companies’ websites and web resources, that were repeatedly exposed to the spread of fake information.[11]
After the assessment, a territorial body of the SMS shall send a conclusion regarding the application and package of the documents to the SMS headquarters.
The SMS headquarters shall examine the received profile of the applicant within one month and decide on granting the relevant status. This time limit can be prolonged up to three months.[12]
In the course of implementing these measures, the SMS headquarters has the right to:
- demand submission of additional information from the territorial body of the SMS, which considered the application during previous stages;
- submit relevant requests to the Ministry of Foreign Affairs of Ukraine, the Ministry of Internal Affairs, the Security Service of Ukraine, other state authorities, local self-government bodies and citizens’ associations in case of doubt;
- return the case for re-examination to the territorial body of the SMS.[13]
A person cannot be recognised as a refugee or a person in need of complementary protection in the following cases:
- if they committed a crime against peace, a war crime or a crime against humanity and humanity as defined in international law;
- if they committed a non-political crime outside Ukraine before arriving in Ukraine in order to be recognised as a refugee or a person in need of complementary protection if such an act is classified as a grave or especially grave crime under the Criminal Code of Ukraine;
- a person guilty of committing acts contrary to the purpose and principles of the United Nations;
- in respect of whom it has been established that the conditions set forth in Article 1 of Law on Refugee for refugee status or person in need of complementary protection;
- who, prior to arrival in Ukraine, was recognised in another country as a refugee or a person in need of complementary protection;
- 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.[14]
In case of disagreement with the assessment of the territorial body of the SMS that considered the certain asylum case, the SMS headquarters drafts its own written conclusion on recognition or refusal of recognition as a refugee or a person in need of complementary protection.[15] SMS has to perform this task within the established time limit, i.e., one month with a possible extension to three months.
Upon receipt of the decision of the SMS on recognition as a refugee or a person in need of complementary protection, an authorised official of the territorial body of the SMS within seven working days issues a refugee certificate or a certificate of a person in need of complementary protection to each person who has reached the age of sixteen.[16]
On average, the application for asylum is considered for 12 to 24 months from the moment the application is lodged until the decision is taken by the SMS. However, the practice throughout Ukraine is not uniform, for instance in Odesa, the local SMS territorial body in general respects the established terms.[17]
R2P indicated the case, where the final decision in the first instance was taken in less than six months. The application concerned the family member of an already recognised refugee in Ukraine.[18]
In case of a negative decision and further appeals to the national administrative courts, the procedure can last for years.[19] The UNHCR reports that some cases may last for up to five years.[20]
In 2021, 39 foreigners appealed to the Parliament Commissioner about violations of their right to seek asylum due to lengthy consideration of submitted documents or unjustified refusals by the SMS to accept applications. For instance, in September 2021, a citizen of the Republic of Tajikistan, approached the Parliament Commissioner regarding the violation of her right to be recognised as a refugee or a person in need of complementary protection due to the long, over two years, consideration of her application for such status. After the intervention of the Parliament Commissioner, this person was duly documented by the territorial body of the SMS with MSID.[21]
Prioritised examination and fast-track processing
Prioritised examination takes place in case of making an application by the legal representative in the interest of an unaccompanied child. In this case, the territorial body of the SMS shall lodge an application and proceed directly to the examination omitting the preliminary examination stage.[22] A defence counsel, a psychologist and a pedagogue shall be involved in the procedure for recognising a child as a refugee or a person in need of complementary protection.[23]
Personal interview
Ukrainian legislation foresees a personal interview with an asylum seeker during the preliminary examination stage after the lodging of the application and during the further examination of the asylum application.[24] There are no grounds for omitting the personal interview.
Article 8 of the Law on Refugees set forth the obligation to interview within 15 days after the lodging of the application during the preliminary examination.
Personal interviews are conducted by a competent official of a territorial body of the SMS.[25]
The Ukrainian legislation foresees the possibility of delivering the interpretation during the personal interview through video conferencing. If an applicant is in detention, the interview may be conducted via video conferencing. In addition, there could be a case, where an appropriate interpreter for a specific language is not available in Ukraine. Prior to the interview, the authorised official of the territorial body of the SMS warns the interpreter of the need to comply with the conditions of confidentiality, which is documented by a receipt for non-disclosure of information contained in the applicant’s personal file.[26]
The interview with an unaccompanied child is conducted in the presence of their legal representative, who has submitted an application on behalf of the child, as well as a psychologist and an educator.[27]
The results of the interview are documented in the relevant interview protocol with the person who has applied for recognition as a refugee or a person in need of complementary protection, signed by this person or their legal representative, interpreter, lawyer, psychologist, or educator in case of their presence at the interview.[28]
Interpretation
The SMS should ensure the interpretation during the interview.[29] In Ukraine, persons entered in the Register of Translators (maintained by the SMS) may translate for SMS purposes. However, the register only includes translators with fluency in common languages, so those with rare languages (Tigrinya, Somali, Urdu, Bengali, Swahili, etc.) are often asked to provide their translator and cover the costs.[30]
In 2019, the UNHCR conducted interviews and focus-group discussions to reveal among others the needs of asylum seekers. Regarding the issues with interpretation during the RSD, some asylum seekers emphasised that although the SMS had never demanded that they pay money for services, they had received such demands from their compatriots who provided translation services at the SMS. During the discussion, which was attended by SMS representatives, asylum seekers directly addressed this issue to the SMS and asked them to compile a certified list of interpreters who would not charge asylum seekers. Participants in the UNHCR survey also explained that they are not ready to file formal complaints in such cases because they are afraid of the consequences.[31]
The representative of the Volyn body of the SMS also emphasised the low quality of the translation which complicates the work of government agencies and could undermine their decisions.[32]
The Supreme Court’s practice confirms the crucial necessity of the interpretation during the asylum procedure and the obligation of the SMS to ensure the translator during the interview as the decision of the migration service must be made on the basis of information obtained during the interview. The Supreme Court confirms the conclusions of the court of appeal that the migration authority violated the applicant’s right to an interpreter as the decision to refuse recognition as a refugee or a person in need of complementary protection was made based on information obtained during the interview with a person in the absence of an Arabic interpreter.[33]
Recording and report
The results of the interview are documented in the interview protocol with the person who has applied for refugee status or a person in need of complementary protection, which is signed by this person or his/her legal representative.[34] An asylum seeker also indicates in writing below the interview record that they have read the written statement and that it is accurate. In case a person disagrees or finds information that was not accurate at a later stage they can mention it in the court when appealing a negative decision.
Appeal
First appeal
Ukrainian Refugee Law provides for both administrative and judicial review (three instances) of asylum decisions.
Any person has the right to file a lawsuit with an administrative court if they believe that a decision, action or inaction of a public authority has violated their rights, freedoms or legitimate interests and to request their protection. Foreigners, stateless persons and foreign legal entities enjoy the same right to judicial protection as Ukrainian citizens.[35]
Judicial review is conducted by the system of administrative courts:
- 1st instance: District administrative courts which are located in all regions of Ukraine.
- 2nd instance: Appellate administrative court. They cover several regions; currently there are 8 Appellate administrative courts.[36]
- 3rd instance: Administrative court of cassation of the Supreme Court (it was created to replace the former Higher Administrative Court). The latter was closed down as of 15 December 2017.[37]
The decision to refuse to lodge an application may be appealed within five working days from the date of receipt of the notification of refusal either to the SMS or to the court.
If the application is rejected at the preliminary examination stage, the applicant is issued with a short notification of rejection in Ukrainian with the reference to relevant articles of the Law on Refugees and an explanation about the right to appeal within 5 business days either to the central SMS or to the circuit administrative court. If the person appeals and brings the confirmation of appeal, they are issued with the MISD for three months.
In case a person was refused to grant refugee status or the status of a person in need of complementary protection, they have 5 business days to appeal the decision to the court. The SMS shall extend the MSID and keep the national ID of an applicant. A person who has received a notice of refusal to be recognised as a refugee or a person in need of complementary protection and has not exercised the right to appeal against it must leave the territory of Ukraine within the established time limit unless there are other legal grounds for staying in Ukraine.[38]
If a person exercises the right to appeal, the authorised official of the territorial body of the SMS shall keep the applicant’s identity documents and other documents provided by the applicant until a decision on the appeal is made.
If the person does not exercise the right to appeal within five business days from the date of their written notification of the decision to refuse to process documents for resolving the issue of recognition as a refugee or a person in need of complementary protection, the SMS withdraws the MSID and returns the documents to the person.[39]
The approximate time for a court’s judgment is two to eight months in the court of the first instance. However, some cases have been pending in the court of first instance for a much longer period, for example, there is a case filed in 2017 and there has been no judgement yet. The term for examination in the appellate instance court is two to four months, while a cassation procedure in the former High Administrative Court could take up to two years. Throughout this time, the applicant is considered as being in the asylum procedure and has legal grounds to stay in Ukraine. Asylum seekers are released from the obligation to pay court fees.[40]
The legislation establishes a term for appealing a negative decision of five working days from the date of receipt of the notification of the decision issued by the SMS. At the same time, the legislation does not provide that the applicant is handed a decision on refusal of refugee status. That is, the applicant must appeal a negative decision without having either the text of the decision or the grounds for such a decision. In addition, five working days is too short a period to receive a copy of the decision in response to a request to the SMS.
There are also cases where the actual date of receipt of the notification of a negative decision is much after the date of the decision itself. As a result, the courts return the lawsuits on the grounds that a significant period of time has passed since the date of the negative decision, despite the fact that the asylum seeker actually became aware of it only on the date of receipt of the notification.[41]
In most cases, courts consider this category of cases without a court hearing based on written evidence exclusively.[42] In case a person would like to request a court hearing of the case, they may file a motion with the court which is usually satisfied.
In Ukraine, there is a website of the judiciary,[43] where the applicant’s first name, last name and patronymic can be found by the case number of the asylum seeker who is appealing against a negative decision of the SMS. The Unified State Register of Court Decisions[44] also publishes the full text of the decision with reference to the specific circumstances of the asylum seeker’s case. This raises serious concerns regarding data protection, as information about the asylum application exceeds confidentiality requirements.
The law provides for the possibility of participation via video conference. However, in most cases, it is necessary to substantiate the objective impossibility of coming directly to the court, the significant distance between the place of residence/stay and the location of the court is an example. Asylum seekers can participate in a videoconference only from another court building. However, for example, a representative of an asylum seeker who is a lawyer or the SMS can participate in the VCS mode from their laptop, as these persons and bodies can be registered on the state e-court portal. However, the overwhelming majority of asylum seekers are deprived of the opportunity to register on this portal.[45]
Onward appeal
Appeals are submitted against the negative decisions of the relevant lower court. The decision of the cassation court is final. Following the decision of the cassation court it is considered that asylum seekers have exhausted Ukrainian asylum procedures. However, the asylum seeker has a right to reapply for asylum again if they claim that there are new circumstances in the case.[46]
In addition, as Ukraine is a member of the Council of Europe, asylum seekers can apply to the ECtHR in case of alleged violations of the rights outlined in the ECHR. Applications regarding asylum cases were among the most frequent in Ukraine, which indicated the existence of a large amount of ECHR violations and required structural reforms in the international protection domain.[47]
Legal assistance
The Law on Free Legal Aid defines the scope of the right to free legal aid and the beneficiaries of this right. In short, the legislation grants all persons under the jurisdiction of Ukraine the right to free primary legal aid which shall include asylum seekers at the early stage of their application.[48]
The scope of the free primary legal aid encompasses the following types of legal services:
- provision of legal information;
- providing consultations and explanations on legal issues;
- drafting applications, complaints and other documents of a legal nature (except for procedural documents);
- assisting in ensuring a person’s access to secondary legal aid and mediation.[49]
From the moment of the registration and lodging of the application till the final decision on the application, asylum seekers are granted free secondary legal aid, which includes:
- representation of the interests of persons entitled to secondary legal aid in courts, other state bodies, local self-government bodies and before other persons;
- drafting procedural documents.[50]
In practice, only a minority of the lawyers from the FLACs possess the required specialised skills to assist asylum-seekers. While building the capacity of the FLACs through training, UNHCR continues providing free legal assistance to asylum-seekers through a network of national NGO partners who are funded and work with UNHCR.[51]
Furthermore, only asylum seekers granted the MSID, i.e., those who have their application lodged have the right to free secondary legal aid. Meaning in case of rejection to lodge an application by a territorial body of the SMS, the asylum seeker is unable to seek legal representation before public authorities and courts. Thus, it creates difficulties to appeal such a decision of a territorial body of the SMS.
Moreover, the ten-business day period for assessing eligibility for free legal aid by the Centre of Free Legal Aid poses challenges when appealing decisions of a territorial body of the SMS within a shorter time frame of five business days, thereby impeding access to timely and qualified legal assistance.[52]
In 2022, the centres issued 156 orders for free secondary legal aid to asylum seekers; in 2023 – 30 orders; and in the first quarter of 2024 – 1 order.[53] There is no information on how many requests for free legal aid were denied.
Finally, asylum seekers have access to free primary and secondary legal aid at all stages of asylum-proceedings offered by NGOs, who work with asylum issues. This includes the executive partners of the UNHCR as R2P, The Tenth of April, ROKADA, NEEKA, etc.
[1] Section IV(4.1) Rules for the Consideration of Applications.
[2] Section IV(4.1) Rules for the Consideration of Applications.
[3] Section IV(4.1) Rules for the Consideration of Applications.
[4] R2P.
[5] Article 8(6) Law on Refugees.
[6] R2P.
[7] Section IV(4.5) Rules for the Consideration of Applications.
[8] Article 9(1) Law on Refugees
[9] Section V(5.1) Rules for the Consideration of Applications.
[10] Section V(5.1) Rules for the Consideration of Applications.
[11] 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, e.g. 29.
[12] Section VI(6.5) Rules for the Consideration of Applications.
[13] Section VI(6.2) Rules for the Consideration of Applications.
[14] Article 6 Law on Refugee.
[15] Section VI(6.4) Rules for the Consideration of Applications.
[16] Section VI(6.8) Rules for the Consideration of Applications.
[17] R2P.
[18] R2P.
[19] R2P.
[20] UNHCR Refugees and Asylum-Seekers. Thematic update. Ukraine, March 2021, available here.
[21] Parliament Commissioner, Annual Report on The State of Observance and Protection of Human and Civil Rights and Freedoms in Ukraine, 2021, available in Ukrainian here, e.g. 93.
[22] Article 8(1) Law on Refugees.
[23] Section IV(4.2) Rules for the Consideration of Applications.
[24] Section IV(4.1), Section V(5.1) Rules for the Consideration of Applications.
[25] Section IV( 4.1) Rules for the Consideration of Applications.
[26] Section IV( 4.1) Rules for the Consideration of Applications.
[27] Article 9(3) Law on Refugee.
[28] Section IV(4.1) Rules for the Consideration of Applications.
[29] Article 8(3) Law on Refugees.
[30] 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.
[31] UNHCR, Ukraine 2019 Joint Needs Assessment, 2019, available in Ukrainian here.
[32] Hromadskyi Prostir, Access to Justice for Refugees in the Context of COVID-19 in the Spotlight of the Public and Professionals, 20 November 2021, available in Ukrainian here.
[33] Supreme Court, case no. 818/168/16, 23 May 2018, available in Ukrainian here.
[34] Section V( 5.1) Rules for the Consideration of Applications.
[35] Article 5(1,7) Code of Administrative Judicial Procedure.
[36] Decree of the President of Ukraine on Liquidation of Administrative Courts of Appeal and Establishment of Administrative Courts of Appeal in Appellate Districts.
[37] Resolution of the Plenum of the Supreme Court on Setting the Day of the Supreme Court’s Work on 30 November 2017 No. 2.
[38] Article 10 Law on Refugees.
[39] Section IV(4.8) Rules for the Consideration of Applications.
[40] R2P.
[41] R2P, Kharkiv District Administrative Court, case no. 520/20506/23, 14 August 2023, available in Ukranian here, Kyiv District Administrative Court, case no. 320/6453/23, 4 September 2023, available in Ukrainian here.
[42] R2P, Kyiv District Administrative Court, case no. 320/11704/23, 17 April 2023, available in Ukrainian here; Kyiv District Administrative Court, case no. 320/5572/24, 26 February 2024, available in Ukrainian here.
[43] Judiciary of Ukraine, the Status of Proceedings, available in Ukrainian here.
[44] Unified State Register of Court Decisions, available in Ukrainian here.
[45] R2P.
[46] R2P.
[47] Mykola Gnatovskyy and Yulia Ioffe, ‘Twenty Years of the ECHR in Ukraine’, EJIL: Talk!, 18 September 2018, available here.
[48] Article 8 Law on Free Legal Aid.
[49] Article 7(2) Law on Free Legal Aid.
[50] Article 13(2)(2,3), Article 14(1)(10) Law on Free Legal Aid.
[51] UNHCR, 2023.
[52] 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.
[53] 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.