To the Committee
of the Verkhovna Rada of Ukraine
on the law enforcement activities
Mykhaila Hrushevskoho Street, 5,
Ex. № 134
Proposals of the CF “Right to Protection” (R2P) to the draft Law on Amendments to the Code of Ukraine on Administrative Offenses for improving the Migration legislation
On November 20, 2020 a Draft Law on the Amendments to the Code of Ukraine on Administrative Offenses to Improve Migration Legislation was submitted by the Cabinet of Ministers of Ukraine to the Verkhovna Rada of Ukraine.
The Charitable Fund “Right to Protection” (R2P) draws the attention of the subject of the legislative initiative and legislators to the fact that the provisions of this bill affect the situation of asylum seekers in Ukraine, and therefore considers it necessary to provide an analysis of the bill in this regard.
The essence of the bill
The draft law was developed by the Ministry of Internal Affairs of Ukraine in order to prevent and counteract illegal migration in Ukraine, ensure state security and approximate Ukrainian legislation to international standards.
It provides for the improvement of the norms of the Code of Ukraine on Administrative Offenses, which establishes the liability for violations of migration legislation.
Thus, in particular, Article 203 of the Code of Administrative Offenses is proposed in eight parts, each of which provides for different sanctions.
Regarding the imposition of an administrative penalty on asylum seekers
According to the draft Law, Part 2 of Art. 203 of the Code of Administrative Offenses of Ukraine provides for liability for stay in Ukraine without a certificate of application for protection in Ukraine in the form of a fine of one hundred to two hundred non-taxable minimum incomes (i.e., from 1700 to 3400 hryvnias).
Thus, for the first time, the project singles out a special subject of the offense – a protection seeker (person who applied for protection in Ukraine).
The procedure for applying for protection and the legal status of asylum seekers in Ukraine is regulated by the Law of Ukraine “On Refugees and Persons in Need of Additional or Temporary Protection”.
The same law stipulates that a certificate of application for protection in Ukraine is a document certifying the legality of a person’s stay on the territory of Ukraine for the period from the moment a person applies for refugee or a person in need of additional protection until the final determination of such person’s status or until leaving the territory of Ukraine. The certificate of application for protection is not an identity document.
The treatment of refugees staying illegally in the country is regulated by Article 31 of the 1951 Refugee Convention. The United Nations High Commissioner for Refugees (UNHCR), referring to this article, states that the measures taken by the state in these cases should be proportionate to the legitimate aim and applied on an individual case-by-case basis.
As stated in the Strategy of State Migration Policy of Ukraine for the period up to 2025, the policy on asylum seekers should take into account the “humanitarian component, which provides for the sympathy of government officials and other stakeholders, as well as the society.“
Persons whose legality of stay in Ukraine is certified by an application for protection, usually do not speak Ukrainian, do not have legal means of self-sufficiency, are not familiar with the requirements of Ukrainian legislation on the rules of stay in Ukraine and, accordingly, need a significant period of time to integrate into the Ukrainian society. These features must be taken into account as effectiveness of legal influence on above mentioned persons is dependent on it.
One of the alternative sanctions under Art. 203 of the draft is that the initiator of the bill provides a warning. The warning in fact combines a formal condemnation of a person’s illegal behavior (an administrative offense with a minor degree of social harm) and informing the person about the inadmissibility of such behavior in the future.
Given the above, such a reaction of the state to the violation committed by the seeker of protection is optimal and proportionate to the legitimate aim in the context of further integration of this person into Ukrainian society.
Regarding the access to the Stateless Determination Procedure
On June 16, 2020, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Recognition as a Stateless Person” was adopted, which provides for the procedure for recognition as a stateless person in Ukraine.
According to the second paragraph of the second part of Article 4 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” a person who cannot obtain a passport document due to not being considered a citizen by any state has the right to apply to the State Migration Service for recognition as a stateless person, regardless of the legality or illegality of his stay in Ukraine.
The guidance of the United Nations High Commissioner for Refugees (UNHCR) on the protection of stateless persons, noted in paragraphs 68-69, suggests that the states which introduce the Stateless Determination Procedure must ensure the actual access of such persons to the procedure for the purpose of its efficiency and fairness.
It is emphasized that access to the procedure for recognition as a stateless person should be provided for every person. Achieving this goal is impossible if an undocumented person who meets the criteria of a stateless person and intends to apply for recognition as a stateless person is afraid of administrative liability for violation of the order of stay in Ukraine.
It should be noted that persons with uncertain citizenship, who apply for legal aid to the Charitable Fund “Right to Protection” (R2P) in order to obtain citizenship and obtain a passport, report to be held administratively liable under Article 203 of the Code.
In the practice of European countries, such as France, Moldova, Switzerland, Spain, Bulgaria, there are no fines / fees for applicants for recognition as a stateless person.
In order to bring Article 203 of the Code of Administrative Offenses of Ukraine in accordance with the provisions of Articles 4 and 6-1 of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” we consider it necessary to supplement part three of Article 203 of the Code, providing that this article does not apply in cases of absence of the specified documents at the person who addresses in the established order with the statement on recognition as the stateless person at the moment of the address.
In order to ensure the effectiveness of legal influence on asylum seekers, taking into account the humanitarian component, we consider it necessary to supplement the second part of Article 203 of the Code with an alternative sanction – a warning.
A Comparative table with the proposals of the Charitable Fund “Right to Protection” (R2P) is attached.
of the Charitable Fund “Right to Protection”(R2P)