Right to Protection is an NGO dedicatedto protecting the rights of asylum seekers, refugees, stateless andundocumented persons, as well as internally displaced and conflict affected persons.
Month: April 2022
The cases of young Ukrainians crossing the border of Ukraine without their parents – accompanied by strangers, volunteers, distant relatives or even on their own – are striking and have become known around the world. Since the beginning of the war, the Right to Protection has been drawing the attention of the international community to the need to create standards to protect these children.
Tatiana Luzan, advocacy coordinator of theRight to Protection, spoke about the situation and work in this direction together with other organisations at the International Conference “War Aftermath: Reconsidering The Future Of Civil Society” in Warsaw. The topic of her presentation was the protection of children who cross the border unaccompanied and the harmonisation of Ukrainian and EU legislation in this area.
“Our foundation also received calls from parents who were desperate to send their children abroad with complete strangers because of the Russian atrocities going on at the time in Kharkiv, Zaporozhye and other cities. It was obvious to Right to Protection that it was time to intervene and also to involve colleagues from neighbouring countries in trying to resolve the situation,” Tetyana Luzan said.
The joint efforts of Ukrainian and international organisations for the protection of children and women was to prepare a document defining at least minimum standards of protection for unaccompanied minors fleeing Ukraine after the Russian invasion on 24 February 2022. For example, on child custody and safety in another country as well as their safe return home later.
And the final draft was created and became a model for intergovernmental agreements regarding the proper maintenance of child rights, protection and custody.
Its recommendatory provisions are based on UN legal instruments as foundations and EU instruments. In particular, such as the EU Temporary Protection Directive and the related implementing decision on Ukraine, the European Parliament resolution of 7 April 2022 on EU protection of children and young people fleeing war in Ukraine.
“The standard also states that the return of unaccompanied children to Ukraine must be in accordance with the guidelines of the national authorities and in the best interests of the child. In this way, it is ensured that possible future obstacles to the return of young Ukrainians home to their parents are avoided. At the same time, the EU and member states have urged not to consider the termination of temporary protection as an automatic ground for sending Ukrainian children if the situation in Ukraine does not allow for a safe and lasting return to its territory,” Tatiana concluded.
According to UNHCR there are 35 thousands persons with undetermined nationality and stateless persons in Ukraine. These people remain invisible to the state and cannot exercise their rights to education and health care, inherit, open a bank account, register marriage, cross borders freely, and so on (more about the statelessness problem in Ukraine in the material).
In 2021 Ukraine introduced a statelessness determination procedure (hereinafter – SDP) and during 2021 55 persons were recognised as stateless persons. More than 700 other applications have remained pending in the State Migration Service as of 24 of February.
In March and April 2022 beneficiaries of Right to Protection, who fled Ukraine to the European Union countries (Poland, Germany, Spain), contacted our lawyers to inquire what protection and legal status they may obtain in the EU.
2.A stateless person, recognised under the Ukrainian SDP and in possession of only a temporary residence permit may have legal difficulties in obtaining temporary protection in an EU Member State. Ukrainian law stipulates that a person recognised as a stateless person must be documented by usual temporary residence permit without issuance of any other identity document (like certificate of a stateless person etc.). More details about documentation peculiarities of stateless persons in Ukraine can be found in the report.
According to the Council Implementing Decision (EU) 2022/382 the temporary protection shall be applied to “b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,….Member States shall apply either this Decision or adequate protection under their national law, in respect of stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.”
Thus, a foreigner who fled Ukraine and has only a temporary residence permit must confirm benefiting from equivalent national protection in Ukraine, otherwise he/she may not be granted a temporary protection in a respective EU Member State. At the same time stateless persons from Ukraine may flee without a travel document of a stateless person, having only a temporary residence permit (they simply haven’t applied for a travel document).
The following documents may confirm the equivalent form of protection for the stateless persons in Ukraine (1) temporary residence permit issued to the stateless person in accordance with Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” (as a result of SDP);
This card looks like a usual temporary residence permit issued in Ukraine to a foreigner, except in the column “Nationality” there is an abbreviation “ОБГ” that stands for Ukrainian “особа без громадянства” – in English literary “a person without nationality” or a stateless person.
(2) temporary residence permit for a stateless person issued on the basis of the Law of Ukraine “On Immigration”. This document may be in the form of a book, issued to some stateless persons indefinitely after 2001.
Alternatively, the document below was issued in Crimea in 2004 by a form, which does not completely comply with the legislation of Ukraine as of 2004. But it is impossible now to confirm issuance of documents in Crimea before 2014 and, subsequently, people are de facto compelled to live with such a document. The data was filled in Russian and Russian abbreviation “ЛБГ” is identical to Ukrainian “ОБГ” – a person without nationality (stateless person).
3.Applicants of statelessness determination procedure from Ukraine cannot be granted temporary protection according to the Council Implementing Decision (EU) 2022/382 because they have not yet received the equivalent protection in Ukraine and they don’t have a residence permit in Ukraine, they are considered as temporary legally residing in Ukraine during the procedure.
Most of these people are stateless or at risk of statelessness, who have been waiting for the SDP for many years or all their lives. Ideally, these people should be granted temporary protection as well. At least, they should receive professional legal consultation regarding legal status they may obtain in the relevant EU Member State , including access to the SDP and access to asylum procedure. The list of organisations in neighbouring countries that provide advice and assistance for stateless people fleeing Ukraine is available on the website of European Network on Statelessness by link: https://www.statelessness.eu/statelessness-ukraine-crisis”
Another problem is that applicants for the Ukrainian SDP who fled Ukraine are now concerned whether they could return to Ukraine after the war. They have obtained certificates on application for recognition as a stateless person.
It may be concluded that a certain number of stateless persons and SDP applicants fled Ukraine after February 24 and need special attention to be paid by the EU and its Member States given the peculiarities of documentation in Ukraine. However, some of the Right to Protection beneficiaries, who are not applicants for the Ukrainian SDP, have left Ukraine without any identity documents. They don’t have a passport or their nationality is undefined, but they probably possess some documents, for example, a birth certificate, a UNHCR Protection letter, a USSR passport or USSR travel document, a certificate issued by the foreign consulate confirming they are or are not a citizen of the relevant State, other certificates or copies of documents.
The mentioned group of persons should be provided with free legal assistance in order to obtain nationality or apply for a recognition as a refugee or a stateless person. There is no official data on the amount of persons with undefined nationality living in Ukraine and how many of them fled Ukraine after February 24. But these people were allowed to cross the Ukrainian border, some of them crossed other EU Member States’ borders afterwards.
For additional information on Ukrainian legislation relating to nationality, statelessness determination procedure and legal status of stateless persons in Ukraine, European lawyers and NGOs are encouraged to apply to “Right to Protection” by email email@example.com.
6 April 2022
HIAS Europe and Right to Protection (R2P) are calling on the EU and states to address paperwork problems that risk preventing people fleeing Ukraine from finding safe havens in Europe. R2P is an independent Ukrainian NGO that has managed HIAS’ humanitarian programming in Ukraine since 2014. More than 150 staff, many of whom have themselves been displaced, remain inside Ukraine and continue to deliver legal and humanitarian aid to people fleeing. R2P highlights the following concerns:
Digital identity documents not accepted
On 21 March 2022, the European Commission issued an indicative list of documents that are accepted as proof of Ukrainian nationality for the purposes of accessing temporary protection and related rights. Though this list was not exhaustive, digital documents were not included.
This puts Ukrainians who do not have paper identity documents – often as a result of loss, theft or destruction during hostilities or travelling – at risk.
Romania, Hungary, and Slovakia should accept digital identity documents as valid entry documents at the border. These are already accepted by Poland and Moldova.
Validity of Ukrainian driver’s licences not guaranteed
The validity of Ukrainian driver’s licences varies state to state, and people are required to apply for national replacements after a certain time lapse – e.g. 185 days in Slovakia, 365 days in Hungary. This creates unnecessary uncertainty and stress for refugees.
Ukrainian driver’s licences should be accepted as valid for the duration of temporary protection in at least Romania, Hungary, Slovakia, Poland, and Moldova, if not all European states.
We are pleased to introduce to you the fifth paper in a series within the course of the project “Reducing Disaster Risk Vulnerability in Eastern Ukraine – Phase II” dedicated to the analysis of what should be done at the political and managerial levels today in order to launch country’s recovery based on sustainable development approaches, as well as on the “build back better” principle. And even more – to strengthen the organizational, security and economic resilience of the state to future risks and reduce the number of losses and casualties.
War is always a big stress for the country. This is a test of all state institutions for the effectiveness of ensuring security. Although war is not a thing to be under full control, it nevertheless reveals areas of development in the field of public administration, and also gives an impetus for the search for new political and practical solutions that will be aimed at protecting the country and people from the devastating consequences of war. And most of these decisions will be laid down in the process of reconstruction.
What basic principle should be the basis for the reconstruction of the state?
What should a new infrastructure (including the critical) be like? What issues should be taken into account?
This short article attempts to provide at least an overview of these questions – more precise and specific answers will still require additional work in this direction. However, some general conclusions can already be outlined.
An overview of the legislative framework – what risks were we prepared for?
Here are some examples of legislative acts that show that Ukraine had war threats covered on its agenda, took them into account and evaluated potential war risks in order to identify high-risk facilities. In accordance with this agenda, measures are being taken to maximize the protection of the civilian population and economy from the negative consequences of war.
destruction, fires and explosions of arsenals of bases and warehouses where military weapons are stored, including obsolete ones;
poisoning of people with chemical or toxic substances of military origin.
Characteristics of a Social emergency:
an armed attack on military facilities.
Methodology for Identifying Potentially Hazardous Facilities under the number 30700 mentions “accidents at arsenals, ammunition depots and other military facilities with the release of splinters, rocket and conventional shells.” The risk is also associated with the production and storage of explosive materials used in production processes, as well as military equipment containing explosive materials that are manufactured, stored or disposed of.
Methodology for Assessing Risks and Their Acceptable Levels to Declare the Safety of High-risk Facilities among the rough list of external influences that can lead to the occurrence of dangerous events, under number 36 indicates “sabotage, war, rebellion that can lead to destruction, make a threat of accidents or such an accident itself.” Number 37 indicates “Sabotage, a terrorist act that can be carried out either accidentally or by order of competitors, extortionists, criminal groups, etc.”. So, as we can see, the main risks that the state faced in February 2022 were formulated and listed in legislative acts.
An overview of strategic documents – do they mention risks?
For example, in national-level strategic documents you can often find information about the negative consequences of the war and the corresponding risks for the economic and other areas of development in the context of describing the Donetsk and Luhansk regions. All local Disaster Risk Reduction Strategies that were developed for local communities with international partners’ support also considered the risks of military conflict and its consequences. However, is it possible to manage the risks of military threats? Probably, the answer to this question is a military and political issue, which goes far beyond the scope of this article.
However, according to UNDRR, risk management is becoming an increasingly complex task, given the complexity of causal relationships involved. War and conflict are integral parts of such assessment and the life of humanity.
Current context The ability of ecosystems to self-renovation is slowly decreasing (for example, population growth contributes to the development of the agro-industry)
Environmental pollution and climate change
Population growth in some places and depopulation in others
Growth of the agro-industrial complex and weakening requirements for them
Mapping complex correlations and feedback loops
Environmental stressors that accompany construction
Loss of biodiversity
Complexity of international trade
Sudden and gradual tipping pointsA large-scale event or multiple failures at the same time may suddenly exceed the entire remaining capacity
Market instability Price spikes
Problems with access to water
Multiple bread basket failures
Migration Political destabilization
Civil disorder War
Food security Food riots
Table is based on UNDRR materials
From 1946 to 2001 there were about 220 armed conflicts in the world (Panić, 2008) resulting in more than 20 million casualties and 67 million refugees. According to the UNHCR data as of 30th of March 2022, over 4 million refugees estimated to have fled to neighbouring countries since 24 February and rising.
According to the UN analytical report on post-war reconstruction, there are four risk factors contributing to provoking conflict.
Low income per capita.
Weak economic growth.
The presence of socio-economic horizontal inequality.
How to transform risk awareness into sustainable recovery?
How to rebuild the country? What should be done at the political and managerial level now in order to strengthen the organizational, security and economic resilience of the state to future risks and reduce the number of losses and casualties?
The answers to these questions are appearing step-by-step in legislative acts. In particular, on March 20, 2022, the President signed the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Environmental Activities and Civil Protection For The Period of Martial Law”. This Law was adopted pursuant to the Article 64 of the Constitution of Ukraine, Articles 12-1, 20 of the Law of Ukraine “On the Legal Regime of Martial Law”, Presidential Decree No. 64 of February 24, 2022 “On the Introduction of Martial Law in Ukraine”. An analysis of the provisions of this Law demonstrates an attempt to restore the country as quickly as possible. In particular, amendments to the Civil Protection Code of Ukraine (Article 8) have expanded the tasks of the Unified State System of Civil Protection (USSCP) in order to:
– restore the country after the war to carry out targeted mobilization aiming at elimination of the consequences of military operations and emergency situations;
– eliminate the consequences of military operations in the settlements and territories affected by weapons of destruction;
– restore critical infrastructure facilities in the sphere of life support of the population;
– identify areas requiring humanitarian mine clearance, marking of dangerous areas, and clearance (demining) of territories;
– involve international assistance to the elimination of the consequences of military operations and emergency situations.
It should be mentioned that such actions will bring the territory of the country into a state suitable for further living and conducting economic activities, but they will not guarantee the implementation of the fourth priority of the Sendai Framework Program for Disaster Risk Reduction (Sendai Framework) – “Build Back Better”, as these issues go beyond the scope of civil protection issues and the competence of the State Emergency Service. It is worth mentioning that since December 2022, Ukraine has been operating a program for the recovery of Ukraine (financial agreement between Ukraine and the European Investment Bank), however, this program does not apply to actions necessary for the recovery of Ukraine after the war. (1)
However, we believe that in this context there is still some room for development and opportunities for more actions. Now we should think about a Ukraine Recovery Program and take into account all previous plans to implement the principles of sustainable development in Ukraine, as well as lessons of this war. In particular, we should think about the procedure for using resources from these funds, fundraising, etc.
The key to this strategy should be to define the criteria of the concept of “Build Back Better”. After all, the experience of the war shows a large number of logistical issues – the transport system needs to be radically improved. Increase the number of routes and roads, including railways and underground ones. Large cities that have become traps for a large number of people can be partially restored. There should be focus on the restoration and expansion of small villages and towns. A special issue is further economic development. Today the idea of a “Marshall Plan” for Ukraine is being discussed in the media, but in addition to it, Ukraine needs new vision of reforms, reconstruction and sustainable development. Financial assistance will contribute to rapid development only if there is a well-developed Recovery Programme and a clear action plan. Currently, Ukraine does not have such a program and plan, but right now the need for its development has become more acute.
As we mentioned before, taking into account the issues of civil protection, human safety during man-caused hazards, and environmental safety as components of national security is possible if all stakeholders involved strictly comply with standards for all types of safety. Moreover, it is the civil and human safety during man-caused hazards, and environmental safety that contribute to the continuous search for the best solutions to achieve goals, and one of the tools for ensuring safety is control (including environmental control).
We would like to remind you that due to the introduction of martial law in Ukraine, the constitutional rights and freedoms of a person and citizen provided for in the Articles 30–34, 38, 39, 41–44, 53 of the Constitution of Ukraine may be restricted temporarily for the duration of the legal regime of martial law. There are also temporary restrictions on the rights and legitimate interests of legal entities within the limits and to the extent necessary to ensure the possibility of introducing and implementing measures of the legal regime of martial law, which are provided for in Part one of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”. As we can see, Articles 66, 50, and 16 of the Constitution of Ukraine have not been changed. Ensuring the right to a safe environment is still relevant and should become the cornerstone issue, as well as the obligation not to cause harm to the environment.
Therefore, the termination of scheduled and unscheduled measures of state supervision (control) and state market supervision for the period of martial law, introduced by Presidential Decree No. 64 of February 24, 2022 “On the Introduction of Martial Law in Ukraine” can only be a temporary measure necessary in an emergency. After all, the results of scheduled control are a tool for identifying sensitive issues and finding the best solutions. In addition, the control actions of official authorities will be able to properly create evidence for recording violations of war crimes, losses and damage caused. In its turn, the information and data collected during the control activities will be taken into account for the planning of reconstruction activities.
What basic principle should be the basis for the restoration of the state? We suggest considering the principle “Build Back Better”, which is laid down in the Sendai Framework for Disaster Risk Reduction, as the basic one. This principle comprehensively reflects the idea of sustainable development and a risk-based approach to recovery. It should become the main value and methodological guidance in the development of the Ukraine Recovery Program and the respective action plan. It is reasonable to start developing these documents now at the level of the Cabinet of Ministers of Ukraine with the broad involvement of all stakeholders. We would like to add that a compulsory stage in elaboration of such documents should be their strategic environmental assessment.
So, the general algorithm of actions suggested:
Creation of a national system for recording and documenting the facts of destruction (primarily critical infrastructure facilities), movement of businesses and people, etc. It is advisable to provide such recording by creating a) an organizational and legal component of such a system – strengthening the role of regulatory authorities, providing them with security guarantees, adjusting the forms of inspections and methods of fixing violations, and b) an information and technical component – creating an online database that should be administered by the State Emergency Service, but which would be accessible by other state authorities (first of all, the Ministry of Communities and Territories Development and Ministry of Environment and Natural Resources of Ukraine) and international partners;
Legal and regulatory adoption of the “Build Back Better” principle as the key principle of recovery;
Conducting an assessment of the damages caused and making decisions on the feasibility of restoring facilities;
Determining financial sources and material resources for recovery based on the “Build Back Better” principle;
Coordination and unification of civil and human safety requirements in the context of man-caused hazards, as well as environmental safety demands to take into account the principles of sustainable development in decision-making;
Elaboration (based on scientific outcomes) of state programs for the application of the best available technologies considering available local resources (National State Academy of Ukraine together with Ukrainian scientists should be involved).
Finally, it is worth mentioning that the reconstruction process should be implemented with broad discussion and the involvement of the international community and the general public.
“The principle “Build Back Better” should become the main value and methodological guidance in the development of the Ukraine Recovery Programme and the respective action plan.”
Sofia Shutyak, Strategic Analyst of the project “Reducing Disaster Risk Vulnerability in Eastern Ukraine (Phase II)”
This study was possible with the final support of the European Union through its Directorate-General for European Civil Protection and Humanitarian Aid Operations.
This document highlights humanitarian assistance activities funded by the European Union. The opinions expressed are those of the author(s) only and should not be considered as representative of the European Commission’s official position, the European Commission is not responsible for the use of information in the document.
The project is aimed at supporting multi-industry investment sub-projects in the field of municipal and social infrastructure aiming at overcoming the consequences of the conflict in Eastern Ukraine, which devastated parts of this region between March and early September 2014 and continues to this day.
“I’m afraid that if I decided to leave I wouldn’t be able to cross checkpoints or borders because I don’t have documents. I’m also very scared they’d separate me from my children because I have no proof that I’m their mother,” – Svitlana Goncharova, a stateless person, one of our beneficiaries, told the Thomson Reuters Foundation.
The woman is in Sumy and due to the lack of any documents she was afraid to leave the shelling, staying with her two children in the basement. Read about how she and her children are going through this difficult time and about life without citizenship in this Thomson Reuters Foundation article.
The Right to Protection Charitable Foundation deals with the problems of stateless people and at risk of statelessness in Ukraine. According to Sofia Kordonets, the foundation’s project manager, although neighbouring countries had their borders opened, only a few cases are known of stateless people being able to leave Ukraine (some of whom had expired Soviet passports). Stateless persons face great obstacles in finding accommodation and assistance if they decide to move around the country, it is difficult for them to go abroad and there is a high probability that they may never be able to return.
«Перше питання, як “The first question they ask us is often not “how can I leave?” but “how can I return?” – Sofia notes.
War puts the undocumented person in very difficult circumstances. Even in peacetime, a person without an identity document is restricted in their freedom of movement, and the fear of being detained is common for such people. Undocumented stateless persons (OBG) in Ukraine live with this fear for decades and sometimes their entire lives.
Right to Protection beneficiaries without identity documents are hesitant to move from dangerous war-torn regions in particular because of this fear. Forced into permanent life-long restrictions, they now find themselves trapped in dangerous localities and without the possibility of receiving assistance. Their only hope is the volunteers who are now working at the edge of possibility!
According to the United Nations Refugee Agency (UNHCR), there are approximately 35,000 people with undetermined citizenship and statelessness in Ukraine. As there is no official and accurate data, so there may be more of these people. Some people do not have any documents, while at the same time they try to live, fighting for the right to a full life and even associating themselves with our state.
The Right to Protection does everything possible to help these people to continue their attempts to be documented and provides the necessary information and assistance.