publications

Background

Migration Trends in Ukraine  

Today Ukraine is an important transit country for migration into the European Union. The May 2004 enlargement of the E.U. brought Ukraine to the edge of a new Europe. The country now borders three E.U. member states, Poland, Hungary and Slovakia, making Ukraine one of the European Union’s most significant neighbors.

Ukraine has traditionally been a source country for migration, first for people fleeing persecution during the Communist era and, after the collapse of Communism, for people moving west in search of work opportunities or to escape persecution.

In the early 1990s, Ukraine became a destination country for migration. During 1992 and 1994, large numbers of people fleeing the conflicts in Abkhazia and Transdniestria found refuge in Ukraine.2 Crimean Tatars, once the subject of repression and exile, were repatriated to Crimea.3 Immigration to Ukraine from non-former Soviet countries, particularly countries in the Middle East and Asia, also increased during the same period. Current estimates of the number of migrants in Ukraine range from 60,000 to 1.6 million, but the most common estimate is that there are 500,000 migrants in Ukraine.4 

Ukraine is increasingly appealing as a transit country for asylum seekers trying to find refuge in the European Union and for migrants on their way west. Its strategic location between Europe and Asia, its long, often un-demarcated frontiers with lenient border controls in the north and east, and limited enforcement capacity, are among the key reasons for this trend. The eastern border of Ukraine is particularly porous, as this was a part of the former internal Soviet border and there was no infrastructure developed in the area.

An increasing number of migrants and failed asylum seekers are returned to Ukraine from the E.U. These returns, mostly from Poland and Slovakia, are based on bilateral return agreements concluded in 1993, prior to those countries’ entry into the E.U. But the trend is being increased by E.U. asylum and migration management policies that shift the burden of processing and hosting migrants and asylum seekers from the E.U. to countries on its borders.

External Dimension of E.U. Asylum Policy

The growing importance of Ukraine as a transit route for migrants and asylum seekers comes at a time when the European Union is fundamentally reappraising its approach to immigration and asylum. Recognizing that open internal borders require a common approach to these issues, there are two distinct dimensions to the E.U.’s common asylum and migration policy. First, within the borders of the Union, the emphasis is on harmonization of asylum standards and procedures, often based on the lowest common denominator among E.U. member states. Second, in the external dimension, the focus is on securing the E.U.’s external borders, in part, by “externalizing” migration control in regions of origin and transit countries as more expedient places to hold and process refugees, migrants, and asylum seekers.5

The internal dimension of the E.U.’s approach links immigration and asylum policies with cooperation among member states on counterterrorism, crime, and border security. It is unsurprising therefore that it results in measures that are incompatible with the obligations of member states under the Convention relating to the Status of Refugees (1951 Refugee Convention)6 or the European Convention for the Protection of Human Rights (ECHR).7 Efforts to develop common minimum standards for the treatment of asylum seekers have frequently undermined rather than enhanced protection, and have been accompanied by increasingly restrictive measures at the national level.8 These include increased use of immigration detention, falling recognition rates for refugees, the withdrawal of social benefits from asylum seekers, and the lack of opportunities to challenge detention and deportation, resulting in increased cases of refoulement—the return of persons in need of human rights or refugee protection to places where they are at risk of being persecuted, or subject to torture and ill-treatment.9

The external dimension of E.U. asylum and migration policy currently has a number of components, including refusal of entry to E.U. territory of persons coming from countries labeled as safe countries of origin or transiting through countries deemed to be safe third countries; interceptions at sea of persons attempting to reach E.U. territory; the return of persons who have already entered E.U. territory, for the purpose of asylum processing or migration management; and support to border enforcement and detention capacity in transit countries that border the E.U. The external dimension also emphasizes development as a mechanism of increasing the capacity of regions of origin to host refugees from the region—so-called “burden sharing”—and utilizes political and aid conditionality as a means of securing the cooperation of countries outside the E.U.

The externalization of E.U. migration and asylum policy threatens to cut off access to those outside the E.U. seeking international protection.10 This trend is epitomized by the proposals from several member states to “outsource” refugee protection by establishing centers outside E.U. territory to process applications from those seeking to claim asylum in the E.U.11 Less controversial elements include proposals for a program to resettle in the E.U. people who have already been recognized as refugees in regions of origin,12 and the establishment of “regional protection programs” to enhance the capacity of developing countries to host refugees. Regional protection programs aim to enhance the protection capacity of regions of origin through a coordinated approach, including general development and humanitarian assistance. It is too early to assess whether these mechanisms will increase protection capacity, but it is clear that they should not serve as a pretext for denying access to asylum in the E.U., or as a substitute for offering protection to those already inside the borders of the E.U. 13

Readmission Agreements

Increasing emphasis is placed on the use of returns agreements, also referred to as “readmission agreements.” They create a mechanism to facilitate the return of migrants and asylum seekers to countries outside the borders of the E.U.14 A readmission agreement between two states allows each state to return to the other any person who travels from one state to the other without permission.

Readmission agreements between the E.U. on behalf of its member states and a third state function in exactly the same way. In theory, readmission agreements are not designed to interfere with the right to seek asylum.15 In practice, not only irregular migrants and failed asylum seekers are returned under such agreements, but also asylum seekers whose claim for asylum and protection needs have yet to be determined. The agreements are also used to refuse admission at the border to asylum seekers. These practices undermine the right to seek asylum, as enshrined in Article 14 of the Universal Declaration of Human Rights,16 by removing persons from the E.U. without first determining whether they are in need of protection as refugees.17

In the mid-1990s, the E.U. association and cooperation agreements with third countries began to include standard clauses on readmission, by which the third countries undertook to accept back any national of these countries present without permission in E.U. territory. In most cases the agreements also recommended the negotiation of bilateral readmission agreements between individual E.U. member states and the country in question.18 In 1994 the European Council adopted an E.U. specimen bilateral readmission agreement and a recommendation concerning the adoption of a standard travel document to facilitate the expulsion of third country nationals (since migrants often lack travel documents).19

During the 1999 Tampere Summit, the European Council called for the conclusion of readmission agreements with third countries and for the insertion of readmission clauses in other agreements concluded between the European Community and third countries or groups of third countries.20 The practice of concluding readmission agreements has become so well established that the Seville European Council recommended that each future association or co-operation agreement include a clause on migration management and compulsory readmission in the event of irregular migration.21

While readmission agreements facilitate migrant returns, they also pose serious risks to basic human rights guarantees, including the right to seek asylum and protection against refoulement. The research carried out by Human Rights Watch for this report indicates that these agreements are being used as a tool to transfer migrants and asylum seekers out of E.U. territory in violation of their basic rights.

The Office of the United Nations High Commissioner for Refugees (UNHCR) has expressed concern about the impact of readmission agreements on the right to seek asylum.22 In particular, UNHCR has questioned whether persons subject to return under such agreements will have access to effective and durable protection in the country of return, and has expressed concern about the use of such agreements to return third country nationals, emphasizing that “transfers of responsibility for considering asylum applications should only be explored in cases where the applicant has a connection or close link with another State.” 23

E.U. Relations with Ukraine

The European Union is Ukraine’s biggest donor and has had a significant influence on the democratization and reform processes in Ukraine.24 Since 1998, relations between the E.U. and Ukraine have been based on a Partnership and Co-operation Agreement.25

Ukraine has never made a formal application for E.U. membership, but the new Ukrainian government clearly stated its European aspirations soon after President Viktor Yushchenko took office in early 2005.26 The E.U. has not encouraged Ukraine to apply for membership, offering it instead a place in its European Neighbourhood Policy (ENP) framework.

One of the first priorities identified under the ENP was cooperation in the area of justice and home (internal) affairs. The priorities for co-operation include: “readmission and migration, border management…[and] trafficking in human beings.”27 The February 2005 E.U. Action Plan on Justice and Home Affairswith Ukraine further defined the areas for co-operation in this field.28 

Ukraine was first mentioned by the United Kingdom as the location for processing asylum applicants outside the E.U. in the context of the British “new vision proposal” in 2003.29 In September 2004, Ukraine was proposed during a meeting of Interior Ministers from Austria and the Baltic States as a potential location for camps to house refugees from Chechnya.30 A senior Ukrainian government official rejected the suggestion: “We are sovereign and independent state Ukraine. I’m very indignant that somebody decides something for Ukraine.”31 E.U. officials distanced themselves from the proposal.32

Current E.U.-Ukraine cooperation in the area of asylum and migration is focused on the ratification of a readmission agreement and the development of a regional protection program that would cover Ukraine.33

Negotiations on a readmission agreement have begun under the framework of the Partnership and Cooperation Agreement and the E.U. Justice and Home Affairs Action Plan.34 Besides financial and technical incentives, the E.U. is also offering a regime to allow Ukrainians visa-free travel to Europe.35

The draft E.U.-Ukraine readmission agreement raises the same questions as readmission agreements in general. Is Ukraine capable of offering effective protection to refugees and of respecting the rights of migrants?36 UNHCR has made clear that at present Ukraine cannot be considered a safe first country of asylum. Will asylum seekers who transit through Ukraine be unjustly denied access to asylum in the E.U. and therefore risk being returned to persecution?

Ukraine already has long-standing bilateral readmission agreements with Hungary, Poland and Slovakia. The three agreements cover not only own nationals, but also citizens of third countries and stateless persons. The agreements lack a specific obligation to ensure that the returnees will have their asylum claims processed in a fair and effective manner upon readmission, do not include a prohibition of the return of asylum seekers, do not require effective remedies that would allow returnees to lodge their asylum applications, and do not commit the parties to observe the principle of nonrefoulement (protection against return) under Article 33 of the 1951 Refugee Convention, Article 3 of the United Nations Convention Against Torture (CAT), and Article 3 of the ECHR. There are no specific protection mechanisms for vulnerable groups or for victims of human trafficking.

Operation of Existing Bilateral Readmission Agreements

Persons caught entering Slovakia, Poland, or Hungary from Ukraine without permission are detained by border enforcement authorities. Following their interception and arrest, the detainees are interviewed and processed within 48 hours (in Poland the procedure, in practice, takes 24 hours), followed by return to Ukraine.37 Border guards on each side of the border compile basic information, according to a protocol that one official described as “analogous with a protocol for the delivery/receipt of goods.”38 The comparison was indeed accurate as Human Rights Watch research showed that there is no genuine effort to identify the names, origin and status of those apprehended. One of the officials interviewed told Human Rights Watch: “We just count them.”39

The pre-screening practices at the border do not allow any opportunity to lodge an asylum application or launch a meaningful appeal. Even if a legal remedy existed, in practice the returnees do not have access to minimal information about their rights, do not have any opportunity to contact a lawyer, NGOs providing legal counsel, or UNHCR, and do not have access to interpreters or the outside world.

Some of the detainees interviewed in Ukraine after being returned from Slovakia or Poland told Human Rights Watch that they had been ill-treated by Slovak and Polish border guards after interception, or by Ukrainian border guards after readmission, and that all their valuables and money had been seized without issuing a receipt.40 O.M., a Georgian detainee at Mostyska, stated: “The first [Polish border guard] hit my arms, the three of them kicked me. I told them that I had surgery five years ago and they stopped [hitting me].” A.S.H., a Belarusian detainee, described his treatment by Polish border guards: “Three times they kicked me in the face. They insulted me when I was in Poland with bad words… this is not the right way to address a person.”41

Readmission Agreement with Slovakia

The readmission agreement with Slovakia was signed in 1993 and entered into force in April 1994. Most of the returnees interviewed in Ukraine after managing to cross to E.U. territory had been returned from Slovakia. Since November 2004 Slovak border guards have handed back migrants and potential asylum seekers to their Ukrainian counterparts on a fast track without allowing them to undergo proper procedures in Slovakia. In 2004, 832 third country nationals and twenty-two Ukrainians were returned to Ukraine. Ukrainian border guards complained in interviews with Human Rights Watch that Slovak border guards often return people who are seeking asylum in Slovakia.42

The Slovak officials interviewed acknowledged that there are no individual assessments of each returnee’s identity and status, no interpreters present, no lawyers to counsel the returnees, and no way to challenge the decision to return. They acknowledge that asylum seekers do not know in most cases that they have to say explicitly “asylum” in order to avoid being forcefully returned to Ukraine. During interviews with Human Rights Watch, Slovak officials stated that apprehended asylum seekers are allowed in the country only if they specifically use the word “asylum.”

Interviews conducted with people who sought to claim asylum in Slovakia indicate that even using the word “asylum” is not always enough to prevent summary removal from Slovakia. “Mohamed,” a Palestinian asylum seeker, told Human Rights Watch:

I told them [the Slovak border guards] ten times [that] I want[ed] asylum and they sent me back. They took me to the forest but not to the way I came and they called the Ukrainian border guard soldiers and gave me back; at every five minutes they [the Ukrainian border guards] stopped and searched us and took everything, even the charger for the cell phone…. I told “asyl.” It’s the same in Slovak, English, Farsi, they [the Slovak border guards] should understand. I begged and told them that I don’t want to go back. They said “OK, let’s go.”… They gave me water and said “let’s take you to the forest.” We spent three hours [there]. We wrote our names and place of birth on a paper and they still gave us to the Ukrainians and said, “talk to the Ukrainians.”43

K.I., an Indian asylum seeker who was returned to Ukraine after crossing to Slovakia without proper documents, told Human Rights Watch how the Slovak police interrogated only two people in his group (of thirty-seven) because they were the only two who spoke English.44 A.M., a Pakistani detainee in Pavshino, told Human Rights Watch: “I spent six, seven hours in Slovakia, I didn’t even have the time to tell them that I cannot go back [to my home country].”45

For most migrants and asylum seekers in Slovakia, access to legal counsel is not guaranteed. The limited coverage available is provided by two NGOs.46 When Human Rights Watch visited Slovakia there were only six lawyers available to provide advice on asylum cases in that country. Approximately 11,000 asylum applications were lodged in Slovakia in 2004.

Readmission Agreement with Poland

The readmission agreement with Poland was signed in 1993 and entered into force in April 1994. In 2004, 3,397 of 4,013 persons deported from Poland and returned to Ukraine were Ukrainian citizens.47 Polish officials told Human Rights Watch that before anyone is returned, a legal procedure ensures that each person is identified and that Poland fulfills its compliance with its nonrefoulement obligations. It is hard to imagine, however, how all these guarantees come into play in less than 48 hours.48

When presented by Human Rights Watch with the cases of returnees who had been pushed back to Ukraine even after trying to seek asylum in Poland, Polish officials acknowledged the possibility of human error and the need to improve the control mechanisms to prevent such situations.49 A Polish official told Human Rights Watch: “I cannot guarantee that out of 10,000 people deported per year all are just and there were no violations. I want to say that we are trying to issue guarantees. People aren’t just stopped and readmitted.”50

In the field, the implementation of the readmission agreements is framed as an almost automatic mechanism. Border guards in Poland operate under an assumption that all migrants transit through Ukraine. Ukrainian lawyers in Lviv told Human Rights Watch that six of their clients, from Somalia, had been sent to Ukraine from Poland even though they had entered Poland from Belarus and not from Ukraine. When they sought asylum in Ukraine, their applications were rejected by the local migration service on procedural grounds. The State Committee on Nationalities and Migration dismissed their appeals, arguing that they should have claimed asylum in Poland.51

Human Rights Watch interviewed a group of nine Chinese migrants in Kyiv who had crossed from Ukraine to Slovakia and traveled on foot to Poland. They were apprehended in southern Poland in a locality they could not identify but which was about a six-hour drive to Warsaw. They were detained in a location near Warsaw for twenty-five days. During this period, they expressed clearly their intention to stay in Poland, but they were not given the opportunity to lodge an asylum application. From there, they were taken to the Polish-Ukrainian border and handed over to the Ukrainian guards despite their protests. They were detained for thirteen days in an unidentified location on the Ukrainian border. From there they were transferred to Lviv vagabonds’ center for a month, where women in the group were subjected to sexual harassment and guards took their belongings without receipt. They were transferred to the Kyiv vagabonds’ center, where they had been in detention for a month when Human Rights Watch interviewed them. They had no information about what would happen to them in the future. After months in detention and having suffered repeated ill-treatment, many of them desperately wanted to return home.52

Readmission Agreement with Hungary

The readmission agreement with Hungary was signed in 1993 and entered into force into 1994. Hungary tends to return mostly Ukrainian nationals.53 There are no formalities, no registration and no procedures; no identification is required.54 Access to lawyers and a nongovernmental presence in most facilities is continuous. The main shortcoming is that the Hungarian lawyers working for NGOs providing free legal representation do not have access to the short-term detention facilities at the border crossings.55

Proposed E.U.-Ukraine Readmission Agreement

In light of the human rights violations taking place under current readmission agreements, the new agreement between the E.U. and Ukraine raises concerns both regarding its content and its likely operation. It remains unclear whether the agreement will include an effective mechanism to ensure that returnees will have their asylum claims processed in a fair and effective manner upon readmission, so as to avoid the risk of refugees being passed from state to state without ever having the merits of their claim heard (known as “refugees in orbit” situations). The fairness and effectiveness of the accelerated procedures under which the returns take place remains unclear, including whether those subject to return would have the right to an appeal with suspensive effect against return on Refugee Convention grounds or other human rights grounds.

Given the importance to Ukraine of closer ties with the European Union, the government in Kyiv has a clear interest in cooperating with the E.U. on the management of migration and asylum flows. That cooperation poses a major dilemma for Ukraine, however. Because it lacks the legal and policy framework and accommodation capacity to provide protection to refugees, process asylum seekers, and respect the rights of migrants, Ukraine runs the risk of becoming a center for refoulement for Europe’s refugees, asylum seekers and migrants. The European Union must share responsibility for this deficit, since it consistently prioritizes migration control over human rights and refugee protection in its relations with neighboring states.

Any readmission agreement negotiated between the E.U. and Ukraine must include language that guarantees that persons subject to the provisions of the agreement will not be readmitted to Ukraine in violation of their basic human rights or their right to seek asylum in the E.U. Such an agreement must take into consideration the necessary resources and the timeframe required to amend Ukrainian migration and asylum legislation and procedures and to upgrade its reception and accommodation conditions.56 The commencement of any such agreement should not take place until Ukraine is in full compliance with its international and regional human rights obligations.57 

Ukraine as Location for Future Regional Protection Programs

The current E.U. proposals for a protection program in the region where Ukraine is located presents opportunities and risks. The European Commission is currently devising a plan “with the intention of enhancing the protection capacity of the region… and better protecting the refugee population there by providing Durable Solutions.”58  The Commission has already identified Western Newly Independent States (Ukraine, Moldova and Belarus) as the location for the first pilot project on the eastern rim of the E.U. According to the E.U., the goal of the so-called regional protection program (RPP) is to strengthen existing protection capacity, including: “the reinforcement of subsidiary protection, integration and registration as well as core protection activities relating to case consideration and reception.”59

The RPP process is an ambitious and much-needed agenda which offers the possibility of real improvements in Ukraine’s protection capacity. Though strengthening the protection capacity and improving access to durable solutions in the region are laudable goals, the RPP concept also raises concerns that it will be used as a pretext for burden shifting that will result in the premature designation of Ukraine as a safe third country. This could result in the return of asylum seekers who transit through Ukraine back to that country in the absence of effective protection. It is critical that the RPP not be used as a pretext to return migrants and asylum seekers to Ukraine without adequate capacity to process and host those groups, or to undermine the right to seek asylum in the European Union.




2 Abkhazia and Transdniestria are separatist entities of, respectively, Georgia and Moldova.

3 Council of Europe, Parliamentary Assembly, Recommendation 1455 (2000), Repatriation and integration of the Tatars of Crimea, [online] http://assembly.coe.int/Documents/AdoptedText/TA00/EREC1455.HTM (retrieved July 14, 2005).

4 Olena Malynovska, “International migration in contemporary Ukraine: trends and policy,” Global Migration Perspectives, vol. 14, October 2004, [online] http://www.gcim.org (retrieved November 24, 2004).

5 These dimensions are set out fully in the Hague Programme, a comprehensive E.U. plan addressing cooperation among E.U. states on a range of internal matters including migration, counterterrorism, criminal and judicial cooperation, and human rights.  The Hague Programme: Strengthening Freedom, Security And Justice In The European Union Annex I to The Presidency Conclusions of the Brussels European Council (4/5 November 2004), Council of the European Union, Concl. 3, 14292/04, Brussels, November 5, 2004, p.21.

6 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, adopted July 28, 1951 (entered into force April 22, 1954).

7 European Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty System No. 005, Rome, November 4, 1950, ratified by Ukraine on September 11, 1997. Hereinafter cited as European Convention on Human Rights (ECHR).

8 For a critique of the draft asylum procedures directive and draft returns directive see ECRE, Renewing the Promise of Protection, Recommendations from the European Council on Refugees and Exiles to the Brussels European Council, 5 November 2004 on the Multi-Annual Program ‘Strengthening Freedom, Security and Justice in the European Union’ and recent proposals to establish camps in the Mediterranean region, [online] http://www.ecre.org/statements/BEC.pdf; and ECRE, Position on Return, [online] http://www.ecre.org/positions/return.shtml  See also Human Rights Watch, “European Union: Asylum Proposal Violates Human Rights,” March 2004, [online] http://www.hrw.org/english/docs/2004/03/29/eu8233.htm.

9 See Human Rights Watch, “Spain, Discretion Without Bounds: The Arbitrary Application of Spanish Immigration Law,” A Human Rights Watch Report, Vol. 14, No. 6(D), July 2002, [online] http://www.hrw.org/reports/2002/spain2/; “Spain, The Other Face Of The Canary Islands: Rights Violations Against Migrants and Asylum Seekers,” A Human Rights Watch Report, Vol. 14, No. 1(D), February 2002, [online] http://hrw.org/reports/2002/spain/; “Nowhere To Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco,” A Human Rights Watch Report, Vol.14, No. 4 (D), May 2002, [online] http://www.hrw.org/reports/2002/spain-morocco/; and “The Netherlands, Fleeting Refuge: The Triumph of Efficiency over Protection in Dutch Asylum Policy,” A Human Rights Watch Report, Vol.14, No.3(D), April 2003, [online] http://www.hrw.org/reports/2003/netherlands0403/

10  In 2004, 900,000 undocumented immigrants were refused entry to the E.U., 380,000 were arrested in "unlawful" situations, and 200,000 were expelled, according to Justice, Freedom and Security Commissioner Franco Frattini. Inauguration speech of the Frontex Agency, 2nd meeting of the Management Board of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States, SPEECH/05/401, Warsaw, 30 June 2005, [online] http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/05/401&format=HTML&aged=0&language=EN&guiLanguage=en (retrieved July 7, 2005).

11 Speech by U.K. Home Secretary Jack Straw at the European Conference on Asylum, “Towards a Common Asylum Procedure,” Lisbon June 16, 2000. Also “New International Approaches to Asylum Processing and Protection,” Correspondence from H.E. Tony Blair, Prime Minister of the United Kingdom to H.E. Costas Simitis, Prime Minister of Greece and President of the European Council, March 10, 2003, at para. (1) (ii). German Interior Minister Otto Schily revived this proposal and suggested Libya as a possible location for processing centers. See also the analysis of the “Pacific solution” in “By Invitation Only: Australian Asylum Policy,” A Human Rights Watch Report, Vol. 14, No. 10(C), December 2002, [online] http://hrw.org/reports/2002/australia/. For a critique of the recent E.U.  proposals see, Human Rights Watch, “An Unjust ’Vision’ for Europe’s Refugees, Commentary on the U.K.’s ’New Vision’ Proposal for the Establishment of Refugee Processing Centers Abroad,” June 17, 2003, [online] http://hrw.org/backgrounder/eca/refugees0603/

12 Commission's Communication of 1 September 2005, On Regional Protection Programs and Draft Council Conclusions on the Communication from the Commission on regional protection programs (doc. 11989/05 ASILE 14 RELEX 438), 12593/05, Sept 26, 2005. The Commission communication on resettlement makes the point that resettlement cannot serve as a substitute for protection for those already in the E.U: “Any new approach should be complementary rather than substituting the Common European Asylum System…”

13 UNHCR has welcomed the RPP proposal but emphasized "It is important that these measures do not prevent asylum seekers from entering the EU, and still provide full access for them," Stefania Bianchi, “EU Plans to keep asylum seekers at bay,” IPS, September 29, 2005, [online] http://www.ipsterraviva.net/Europe/article.aspx?id=2395 (retrieved October 14, 2005).   

14 See “Justice and Home Affairs Council Action Plan to Combat Illegal Migration and Trafficking in Human Beings in the European Union” (Official Journal of the E.U., C 142, of 14.06.2002, [online] http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:52002XG0614(02):EN:HTML (retrieved July, 16, 2005). See, also Justice, Freedom and Security Commissioner Franco Frattini, Speech before the Bundestag, “The Commission's policy priorities in the area of Freedom, Security and Justice,” SPEECH/05/93, Berlin, 14 February 2005.

15 Rosemary Byrne, “Harmonization and Burden Redistribution In The Two Europes,” Journal of Refugee Studies, vol. 16 (2003), p. 336.

16 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). Article 14:

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.

17 Executive Committee of the UNHCR Programme, (2003), Conclusion on the return of persons found not to be in need of international protection No. 96 (LIV) – 2003. See also: UNHCR position on the EC readmission agreements with third countries, UNHCR Brussels, April 2003.

18 Readmission clauses have been inserted into agreements with Algeria, Cambodia, Chile, Croatia, Egypt, ,Jordan, Laos, Lebanon, Macedonia Morocco, Pakistan, Uzbekistan, Vietnam, and Yemen.

19 Council Recommendation concerning a specimen bilateral readmission agreement between a Member State and a third country (OJ C 274, 19 September 1996); Council Recommendation concerning the adoption of a standard travel document for the expulsion of third country nationals (OJ C 274, 19 September 1996).

20 European Council, Presidency Conclusions, Tampere European Council. 15-16 October 1999, para. 27. Press: 200/1/99, [online] http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/00200-r1.en9.htm (retrieved July 10, 2005).

21 European Council, Presidency Conclusions, Seville European Council, 21-22 June 2002, Press: 13463/ 02, [online] http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/72638.pdf (retrieved July 10, 2005).

22 “UNHCR Position on the EC Readmission Agreements with Third Countries,” UNHCR Brussels, April 2003. See also: Executive Committee of the UNHCR Programme (2003), Conclusion on the return of persons found not to be in need of international protection No. 96 (LIV) – 2003.

23 UNHCR Background Paper Number 3, “Inter-state Agreements for the Readmission of Third Country Nationals, Including Asylum Seekers, and for the Determination of the State Responsible for Examining the Substance of an Asylum Claim,” UNHCR, May 2001. UNHCR further clarified its position by stating that “a meaningful link or connection… would make it reasonable for an applicant to seek asylum in that State… Mere transit through a third country does not generally constitute such a meaningful link.” “UNHCR Urges Caution as EU Negotiates “Safe Country” Concepts,” UNHCR News, October 1, 2003.

24 Total E.U. funding for Ukraine from 1991 to 2004 amounted to €1 billion. This amount is supplemented by contributions from member states which reached €157 million in the period 1996–1999. “Commission Staff Working Paper, European Neighbourhood Policy, Country Report,” Brussels, 12.5.2004, SEC(2004) 566, (COM(2004)373 final).

25 Council and Commission Decision of 26 January 1998 on the conclusion of the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part, 98/149/EC, ECSC, Official Journal L 049, 19/02/1998 p. 0001 – 0002, [online] http://europa.eu.int/servlet/portail/RenderServlet?search=RefPub&lg=en&nb_docs=25&domain=&in_force=NO&year=1998&month=2&day=&coll=JOL&nu_jo=49&page (retrieved September 12, 2005).

26 Radio Free Europe, “Ukrainian President Pledges Plebiscites on EU, NATO,” RFE/RL NEWSLINE Vol. 9, No. 92, Part II, 16 May 2005.

27 Commission of the European Communities, “Commission Staff Working Paper, European Neighbourhood Policy, Country Report,” Brussels, 12.5.2004, SEC(2004) 566, (COM(2004)373 final), p.11.

28 The E.U.-Ukraine Action Plan was jointly adopted at a special Cooperation Council on February 21, 2005. It is available online at http://europa.eu.int/comm/external_relations/ukraine/intro/index.htm (retrieved July 1st, 2005).

29 “New International Approaches to Asylum Processing and Protection,” Correspondence from H.E. Tony Blair, Prime Minister of the United Kingdom to H.E. Costas Simitis, Prime Minister of Greece and President of the European Council, March 10, 2003, para. (1) (ii).

30  Lisbeth Kirk, “Four EU member states suggest refugee camp in Ukraine,” EU Observer, September 16, 2004, [online], http://www.migreurop.org/IMG/rtf/RP12aout-30sept04.rtf (retrieved October 15, 2005).

31 Gennady Moskal, head of the State Committee on Nationalities and Migration, quoted in “Ukraine dismisses notion of transit camps in the country,” EU Observer, September 20, 2004, [online] http://www.migreurop.org/IMG/rtf/RP12aout-30sept04.rtf (retrieved October 15, 2005). 

32 “European Commission denies suggesting camps for Chechen refugees in Ukraine,” Interfax Information Services, October 1, 2004.

33 Justice, Freedom and Security Commissioner Franco Frattini spoke in the following terms about the planned regional protection programs (RPPs): “The commission’s RPPs will focus funding on relief, rehabilitation and regional development in a bid to build capacity in countries which can host large numbers of Europe bound refugees. RPPs will link support to measures such as providing protection for refugees, registration, cooperation on legal migration and agreement of returns of failed asylum seekers or illegal immigrants to countries outside the EU.” Franco Frattini, interview: “The EU's Justice Balancing Act,” May 31, 2005, [online] http://www.eupolitix.com/EN/News/200505/0aac6cfc-a45c-4821-a74a-30a58738fd1f.htm (retrieved June 5, 2005).

34The E.U.-Ukraine Action Plan is available online at http://europa.eu.int/comm/external_relations/ukraine/intro/index.htm.

35 Commission of the European Communities, “Commission Staff Working Paper, European Neighbourhood Policy, Country Report,” Brussels, 12.5.2004, SEC(2004) 566, {COM(2004)373 final}, p. 5

36 In her statement to the Executive Committee of UNHCR in October 2004, the Director of International Protection, Ms. Erika Feller, clarified that effective protection for refugees is that which, at a minimum, guarantees:

- there is no likelihood of persecution, of refoulement or of torture or other cruel and degrading treatment;

- there is no other real risk to the life of the person[s] concerned;

- there is a genuine prospect of an accessible durable solution in or from the asylum country, within a reasonable timeframe;

- pending a durable solution, stay is permitted under conditions which protect against arbitrary expulsion and deprivation of liberty and which provide for adequate and dignified means of subsistence;

- the unity and integrity of the family is ensured; and the specific protection needs of the affected persons, including those deriving from age and gender, are able to be identified and respected.

37 Art. 6.1 of the Polish-Ukrainian Agreement states: “Each Party shall readmit citizens of third states or persons without citizenship who have illegally crossed the common state border from its territory. If less than 48 hours have elapsed from the time of the illegal crossing by this person of the common state border, the readmitting Party shall readmit such a person without prior notification and unnecessary formalities.”

38 Human Rights Watch informal interview with Hungarian border guards in Zahorny, Hungary, April 9, 2005.

39 Human Rights Watch interview with Attila Balazsy, head of Zahony Border Guard office, Zahony, Hungary, April 9, 2005.

40 Human Rights Watch interviews with “Mohamed,” Palestinian from Lebanon, and “Aziz,” Afghan, Gabcikovo, Slovakia, May 4, 2005; L.C.Y., X.X.L., and X.J.P., Chinese, Kyiv vagabonds’ center, Ukraine, March 22, 2005; "Prabhat,” Indian, Pavshino, Ukraine, March 28, 2005; and A.S., Belarusian, Mostyska detention facility, Ukraine, April 19, 2005. Article 41 of the Ukrainian Constitution protects citizens and non-citizens against being arbitrarily deprived of property and possessions.

41 Human Rights Watch interviews with O.M., Georgian, and A.S.H., Belarusian, Mostyska, Ukraine, April 19, 2005.

42 Human Rights Watch interview with Gen. Boris Marchenko and Maj. Serguey Luginchenko from the State Border Service of Ukraine, Kyiv, April 6, 2005.

43 Human Rights Watch interview with “Mohamed,” Palestinian from Lebanon, Gabcikovo, Slovakia, May 4, 2005. 

44 Human Rights Watch interview with K.I., Indian, Pavshino, Ukraine, March 28, 2005.

45 Human Rights Watch interview with A.M., Pakistani, Pavshino, Ukraine, March 28, 2005.

46 Services are currently provided by the Goodwill Society from Kosice and Human Rights League (Liga za ludské Práva). The latter began work in July 2005 after the dissolution of the Slovak Helsinki Committee’s refugee program, which previously provided advice to asylum seekers in Slovakia.

47 There were 6,199 persons deported from Poland in 2004, and 4,013 of them (65 percent) were deported to Ukraine. The majority—3,397 (55 percent)—were Ukrainian nationals. Other groups of deportees to Ukraine with significant numbers were Moldovans (336), Chinese (120), Georgians (40), and Indians (46). Human Rights Watch correspondence with Andrzej Pilaszkiewicz, Office for Repatriation and Aliens, Poland, on file with Human Rights Watch. These figures are a clear increase compared with 2003, when out of a total of 5,942 persons deported, 3,247 (55 percent) were deported to Ukraine.

48 Article 89 of the Aliens Law states that in order to issue a deportation order, a hearing must be organized which includes an assessment of all documents, a discussion on entry, stay, merits for tolerated stay, and danger in country of origin or transit country if deported.  As explained by the officials, “every time someone applies to vojvod (head of regional authority or voivodeship) or any other body for a decision on deportation or voluntary repatriation, there has to be consideration for possible protection (under article 104 and 97 on tolerated stay).  This procedure also applies to readmission agreements.”

49 Human Rights Watch interview with Tomasz Lipski, Deputy Director, Polish Border Guard, Warsaw, Poland, April 26, 2005: “Violations can happen… this is why we have control measures to avoid violations in deportation.” When interviewed on the same topic, Andrzej Pilaszkiewicz from the Office for Repatriation and Aliens stated, “The law says that if someone asks for asylum and that person cannot be deported, if [that person] is deported, then there is a violation. But the law also says no crossing on a red light.” He added, “Someone should bear professional responsibility- there should be a reprimand, warning or dismissal.” Human Rights Watch interview, Warsaw, Apri l 26, 2005.

50 Human Rights Watch interview with Tomasz Lipski, Deputy Director, Polish Border Guard, Warsaw, Poland, April 26, 2005.

51 Human Rights Watch interview with Natalia Dulnyieva and Svitlana Marintsova, Human Rights Have No Borders, Lviv, Ukraine, April 18, 2005.

52 Human Rights Watch interviews with J.R.H., X.J.P., X.X.L., Chinese, Kyiv vagabonds’ center, Ukraine, March 22, 2005.

53 Human Rights Watch interviews with Tibor Dolhai, head of Nyirbator detention facility, Nyirbator, Hungary, April 8, 2005, and Attila Balazsy, head of Zahony Border Guard office, Zahony, Hungary, April 9, 2005.

54 Human Rights Watch interview with Attila Balazsy, head of Zahony Border Guard office, Zahony, Hungary, April 9, 2005. Balazsy estimated that there are about twenty-five to thirty Ukrainians returned each week, of whom 99 percent of returnees are Ukrainians, the rest being Moldovans and Georgians, “We just count them… My relation with the bilateral agreement is such that I don’t even know who the people are and what they did.  We are just informed by the facilities by cable wire and that number of person is sent by transport.”

55 Human Rights Watch interview with Laszlo Balazs, Head of Alien Policing, National Headquarters of the Hungarian Border Guard, Budapest, Hungary, April 12, 2005: “They are entitled to ask for legal representation and to be informed by lawyers if they want.  This is why it is so important to stay in touch with civil society. If the alien asks, lawyers can get in but lawyers can’t go to these places on their own initiative.”

56 The E.U.-Albania Bilateral Readmission Agreement includes a “transition period” which delays the commencement of the agreement for two years. Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorization – Declarations, Official Journal L 124 , 17/05/2005 P. 0022 – 0040.

58 Communication from the Commission to the Council and the European Parliament on Regional Protection Programs (COM/2005/388), [online] http://www.eu.int/comm/justice_home/doc_centre/immigration/illegal/doc_immigration_illegal_en.htm#com_2005_388 (retrieved September 3, 2005).

59 Ibid.