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.
1. A person having “stateless person’s travel document”, who have fled Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date, according to the Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection (hereinafter – Council Implementing Decision (EU) 2022/382) have a right to obtain temporary protection as a person who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022.
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.”
According to Communication from the Commission on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection “Commission is currently gathering information from Ukrainian authorities regarding the forms of protection under Ukrainian law and the documents issued by Ukrainian authorities to beneficiaries of such forms of protection. From the preliminary information received, the documents issued by Ukraine are: a ‘travel document for persons granted complementary protection’, a ‘stateless person’s travel document’, and a ‘certificate for persons granted complementary protection’.”
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.