Author
Under the Regulation on Migrant Custody Centres for Foreigners and Stateless Persons illegally staying in Ukraine, an MCC is a state institution designed for the temporary detention of foreigners and stateless persons:
- with respect to whom a court has made a decision on forced expulsion from Ukraine;
- with respect to whom a court has made a decision on detention for the purpose of identification and ensuring forced expulsion from Ukraine;
- detained by the SMS, its territorial bodies and subdivisions for the periods and in the manner prescribed by law;
- detained by a court decision until the application for recognition as a refugee or a person in need of complementary protection in Ukraine or a stateless person is completed.[1]
Detention for the purpose of identification can be carried out in case a person does not have identification documents and cannot provide evidence to the court of the regular stay in Ukraine.[2]
In practice, immigration detention occurs most frequently when persons are detained without passports and/or visas for entry into the EU while attempting to cross the state border outside the designated border-crossing points.
In case a person in an irregular situation or pending return applies for asylum and the SMS lodges the application, the term for detention can be prolonged up to 18 months.[3]
According to the Regulation on Migrant Custody Centres a foreigner shall be released by the MCC administration upon the following grounds:
- upon a court’s vacated judgment of detention or forced expulsion;
- in case the court does not prolong the term of arrest;
- expiration of the limit period of stay;
- recognition of a person as a refugee or person in need of complementary protection;
- establishing the status of a victim of human trafficking.
However, human rights organisations have for many years[4] raised concerns regarding significant risks of arbitrary detention,[5] with detention being ordered in cases where it is disproportionate or where there are no grounds for detention.
The European Court of Human Rights has repeatedly found Ukraine’s detention of migrants to violate Article 5 of the European Convention on Human Rights.[6] For instance, in 2021, the ECtHR held that there was a violation of Article 5 of the Convention, namely protection against arbitrary detention, in the case Shoygo v. Ukraine. The applicant had submitted that his detention had been unlawful because the authorities had to be aware that the applicant did not have identification documents, that they would be unable to expel him because his detention was unnecessary and the possibility of using less restrictive measures was not examined and because the authorities had not pursued his expulsion with requisite diligence.[7]
Another case is currently being examined by the ECtHR, Vukolov v. Ukraine, an application for violation of Articles 5 and 8 of the Convention, which was filed at the end of 2020. The man was detained in October 2019, placed in MCC on 7 November 2019, and released on 7 November 2020. The Moldovan Embassy had responded to the Ukrainian authorities in November 2019 that the man’s passport was not documented, and that there was no information about his citizenship. After March 2020, the migration service made no efforts to identify and expel the man to his country of origin, in particular, due to quarantine restrictions.[8]
[1] Para. 1 Model Regulation on the Migrant Custody Centres.
[2] Article 4(6) Law on the Legal Status of Foreigners; Supreme Court, case No. 359/5975/17, 13 February 2019, available in Ukrainian here.
[3] Article 289(11) Code of Administrative Judicial Procedure.
[4] Human Rights Watch, Ukraine: On the Margins, Rights Violations against Migrants and Asylum Seekers at the New Eastern Border of the European Union, 28 November 2005, available here.
[5] R2P & HIAS, Asylum Seekers and Refugees in Ukraine Addressing Protection Risks During Wartime, 05 April 2023, available here.
[6] ECtHR, Nur and Others v. Ukraine, Application no. 77647/11, Judgement of 16 July 2020, available here; ECtHR, Turdikhojaev v. Ukraine, Application no. 72510/12, Judgment of 18 March 2021, available here.
[7] ECtHR, Shoygo v. Ukraine, Application no. 29662/12, 30 September 2020.
[8] ECtHR practice. Ukrainian Aspect, Will the ECtHR Help Change the Attitude of Officials towards Stateless Persons as Second-Class Citizens?, 21 January 2022б available in Ukrainian here.