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Treatment of Migrants and Asylum Seekers in Ukraine

Ukraine’s asylum and migration systems face a double challenge: an internal challenge of a dysfunctional system that fails to provide even the most basic of protections to asylum seekers and migrants; and an external challenge of increased numbers of asylum seekers and migrants trying to cross Ukraine en route to Europe. In the first six months of 2005, Ukrainian border guards apprehended 6,481 undocumented migrants, a 79 percent increase over the previous year. Another 4,343 undocumented migrants were refused entry at the border.⁶⁰ 

Human Rights Watch’s research reveals that Ukraine fails to comply with its international obligations on every measure related to migration management and the right to seek asylum. In practice, Ukrainian government officials frequently do not recognized UNHCR documents.⁶¹ Migrants and asylum seekers face a significant risk of arbitrary detention. Chechen asylum seekers are subject to police profiling, have no access to asylum procedures in Ukraine, and are regularly returned to the Russian Federation, raising serious concerns about refoulement. Protection against refoulement is inadequate. Corruption is pervasive, with bribery being sometimes the only option for migrants and asylum seekers wishing to obtain protection.

Relevant Legal Standards

After half a century of isolation as a Soviet constituent republic, when there were no norms on immigration because there was no immigration to be regulated, and no need for an asylum system because no one sought asylum in Ukraine, the legal system in newly independent Ukraine was ill-equipped for its new position at the frontline of European migration.

The first attempt to regulate migration was the 1991 Law on Ukrainian Citizenship, which encouraged repatriation of Ukrainian nationals subject to repression or exile during the Soviet era.⁶² The Ukrainian Law on Refugees was adopted on December 24, 1993, though it took almost ten more years for Ukraine to ratify the 1951 Refugee Convention and its 1967 Optional Protocol.⁶³ The law incorporated the basic provisions of the Refugee Convention, but failed to provide details for an asylum procedure. The 1994 Law on the Legal Status of Aliens gave foreign nationals a legal mechanism to seek settlement in Ukraine and to apply for refugee status.⁶⁴

In the past five years, Ukraine’s immigration law has undergone significant change in an effort to create a more coherent system to deal with asylum seekers and migrants. The citizenship law, the refugee law, the law governing irregular migration and the alien status law have all been amended. The legal amendments were also aimed at conformity with Ukraine’s international human rights obligations.⁶⁵

The 2001 amendment to the Law on Refugees introduced the concepts of family reunification, special protection of unaccompanied children, and social and economic rights for recognized refugees equal to those of Ukrainian citizens. The law remains seriously flawed, however. The most important failings are the strict application deadlines (Article 9 of the law, discussed below) and the possibility of depriving recognized refugees of their status without a court decision (Article 15). ⁶⁶ The law does not include any provisions on protection of failed asylum seekers from being deported due to the threat of torture, or the risk of a threat to the deportee’s life, health or freedom—so-called subsidiary protection for those in need of international protection. There are no humanitarian considerations embedded in the law. The law does not contain any provision concerning vulnerable groups, and this has a negative impact particularly in the case of children not accompanied by their parents, and victims of human trafficking.

The first program to prevent “illegal” migration was adopted by the government in January 1996; three more programs have since been adopted, most recently in 2001.⁶⁷ The programs treated migration policy as a part of Ukrainian social policy and underlined the need to coordinate with the constitutional provisions guaranteeing the free movement of its citizens into and from Ukraine, the equality of legally resident foreigners and stateless persons, and a differentiated approach to the various categories of migrants according to Ukraine’s national interests, legislation and international obligations.⁶⁸

Limitations of the Asylum and Migration System

Impact of Repeated Institutional Restructuring

Asylum and migration mandates in Ukraine have been reorganized eight times in the last eight years.⁶⁹ After the change of the law in 2001 (see above), it took more than one year for the State Committee on Nationalities and Migration (SCNM) to become operational. All asylum procedures were completely suspended during that period, triggering protection gaps and refoulement concerns.⁷⁰ The election of a new government at the end of 2004 coincided with the deadline for the implementation of reforms aimed at centralizing local migration services under the authority of the SCNM),⁷¹ but in early February 2005 President Yushchenko decided to abolish the SCNM.⁷² In April 2005 the SCNM was re-established, this time within the Ministry of Justice, but a new head of the agency was not appointed until October.⁷³ When discussing these successive institutional reforms, one official told Human Rights Watch that “the difficulty consists in the different conflicting messages on the reorganization.” He concluded: “Don’t wish even to your enemies to live in constant reform.”⁷⁴

The repeated institutional restructuring has had a serious impact on the quality of the personnel as well. Every reform has led to a new influx of migration officials who need training in the provisions of the Ukrainian legislation and of the Refugee Convention. An immigration lawyer who tried to lodge an asylum application on behalf of a client told Human Rights Watch that when contacted, the migration official stated: “I don’t work, I am still under reorganization.”⁷⁵

The effects of the reorganization have been disastrous for refugee protection. On June 15, 2005, for example, four Chechen men were refouled to Russia, despite being registered with UNHCR Kyiv. The men were unable to register with the Kyiv City migration service, which had been shut down because of reorganization, leaving them without valid government-issued asylum seeker certificates. The four were subsequently apprehended, fined for not having appropriate registration stamps, and deported to Russia. ⁷⁶

International organizations as well as local actors have been critical of the lack of coordination between asylum and migration actors (local migration service, the SCNM, the State Border Guard Service, and different departments in the Ministry of Internal Affairs), and its impact on the lives and the rights of asylum-seekers and other foreign nationals. A.G., an Afghan asylum seeker interviewed by Human Rights Watch, described the conflicting and confusing requirements he has to fulfill: “One office doesn’t give documents and the other office asks for documents. You have to bribe and it depends on the negotiating skills how big the bribe is.”⁷⁷

Ukraine suffers from corruption at every level of government, including in migration and asylum-related processes. Human Rights Watch found that the amount of money paid to government functionaries often determines how long a person is detained after crossing the border, whether an asylum application is transferred from the border guards to the migration service, whether visits can be arranged among family members detained in the same facility, whether detainees are allowed to correspond with lawyers and NGOs, and how soon a preliminary decision on an asylum application can be obtained.⁷⁸ The common understanding of how the system operates was described by a Chechen asylum seeker: “I believe that I would have just sat in that place [Chop] until someone paid for me to get out.” ⁷⁹ F.F., an asylum seeker from Côte d’Ivoire, recounted the request of a migration service official from Kyiv: “If you pay ten dollars I will give you the papers, if you don’t pay, [there will be] no interview.”⁸⁰

The authorities are still failing to acknowledge and address endemic corruption in an effective manner. The following was stated by officials in the State Border Guard Service:

Corruption is a modern word in Ukraine people keep on shouting. They [asylum seekers] don’t have a penny in their pocket, no documents, how can you speak about corruption… Corruption is impossible, they don’t have anything, they hide their clothes and wear worse clothes and save the good stuff for when they leave…We can’t exclude that [corruption], but was never documented.⁸¹

Officials from the Ministry of Internal Affairs acknowledge the phenomenon but do not see it as a priority. As one official told, “I am aware [that corruption exists within the system] but this is a common practice, we find it in any other country and it is linked on the personality of the person; you can’t punish the whole system.”⁸² 

The capacity and infrastructure of the migration service is seriously crippled: more than half of its funding is provided by UNHCR,⁸³ there are insufficient numbers of staff,⁸⁴ interpretation is frequently provided by UNHCR through NGOs, and in some of the regions the migration service does not have offices, phone lines, computers, or any means to visit asylum seekers in detention.⁸⁵  “We have no money, no means of transportation, no staff, no interpreter; we can’t organize interviews.” a migration official in Uzghorod told Human Rights Watch.⁸⁶ The State Committee on Nationalities and Migration itself had the phone lines cut during our visit in March 2005. In Cernihiv, officials exclaimed in frustration, “The financing should come from the E.U. because people don’t know anything about Ukraine, they want [to go to the] E.U.”⁸⁷

Denial of Access to Asylum Procedures

Article 26 of the 1996 Ukrainian Constitution recognizes the right to seek asylum: “Foreigners and stateless persons may be granted asylum by the procedure established by law.” Ukrainian legislation must comply with the constitutional provision and with the international and European human rights standards to which Ukraine is party.⁸⁸

There are two categories of limitations contributing to the denial of access to asylum procedures that are incompatible with Article 26 of the Ukrainian Constitution.⁸⁹ The first consists of legal factors that include the strict deadlines for application provided in Article 9 of the Ukrainian Law on Refugees and the lack of complementary protection. Second, there are institutional policies that include detaining asylum seekers instead of creating opportunities for reception, profiling particular groups of asylum seekers, arbitrary refusals by border guards to transfer asylum applications to the migration service, and restricting the access of lawyers and NGOs at some of the locations. ⁹⁰

Strict application deadlines

Until May 2005, Article 9 of the Ukrainian Law on Refugees gave asylum seekers three working days to apply for asylum if they entered Ukraine illegally, and five working days if they entered legally. Asylum applications were rejected by the migration service if the deadline prescribed in law was not observed. According to the UNHCR office in Kyiv, in 2002 and 2003 close to 70 percent of asylum applications were rejected on procedural grounds, including failure to observe the time limit, without any consideration of the substantive claims.⁹¹ In May 2005 the law was amended and the words “during three working days” were replaced with “without delay,” without defining what this new formula means. Article 12 of the amended law establishes a manifestly unfounded claim procedure which enables competent authorities to reject asylum claims from individuals prior to their formal registration as asylum seekers. The amendments provide for a fifteen-day time limit for conducting the interview by a migration service official after the application was registered.⁹²

A potential asylum seeker may be unable to lodge an asylum application “without delay” for a variety of reasons. Often, asylum seekers are in detention and may not be given immediate access to asylum procedures. Asylum seekers not in detention may lack basic information on asylum, face difficulties with interpretation, lack access to legal assistance, and experience fear and trauma associated with flight from their home country that makes them uncomfortable with immediately approaching government representatives to declare their wish to apply for asylum. Furthermore, absent explicit guidelines suggesting a broad interpretation of the term “without delay,” migration service officials will continue to apply strict deadlines as in the past.

Even in its current amended form, the Ukrainian law infringes the right to seek asylum as enshrined by Article 14 of the Universal Declaration of Human Rights, and may result in refoulement.

Access to counsel

Legal aid is not provided to asylum seekers in Ukraine, though they have the right to legal representation at no cost. During the different stages of the asylum procedures before the Ukrainian authorities (local migration service, State Committee on Nationalities and Migration, and the courts), asylum seekers are represented free of charge by lawyers working for NGOs selected as UNHCR implementing partners. However, in order to qualify for this service, asylum seekers must undergo and receive a positive decision in a separate procedure known as the UNHCR refugee status determination procedure (RSD—see below).⁹³.

There are insufficient numbers of lawyers to service those who receive UNHCR decisions. Detained asylum seekers find it difficult to even contact UNHCR and its implementing partners, and many of the interviewees did not know how to apply and where. Human Rights Watch was told also that asylum seekers detained in Pavshino are encouraged by border guards to hire particular lawyers who allegedly have close relations with the officials and can guarantee release from detention for a fee of $1,000 (a part of this fee serving as bribes for officials).⁹⁴

Access to interpreters

Many of the detainees and former detainees interviewed by Human Rights Watch complained that access to interpreters was limited. Human Rights Watch research indicates that access to language interpretation was a problem at all stages, including at borders, during detention, and during the asylum determination process.⁹⁵ Some detainees mentioned that because there were no interpreters available, they had to serve as interpreters for people in the same group. Border guards interviewed them on behalf of the entire group, even if they did not speak the languages spoken by other detainees and had no way to communicate with them.⁹⁶ Restrictions on access to interpreters have a detrimental impact on the right of migrants and asylum seekers to challenge detention (see below).

When F.F., an asylum seeker from Côte d’Ivoire, tried to send his correspondence with the migration service regarding the asylum procedures in French, his submission was not accepted. The migration official in charge of his case reportedly said, “It is your problem [that you don’t speak Ukrainian], you should find an interpreter.”⁹⁷

Lack of Protection against Return to Torture

Ukrainian law does not provide persons at risk of torture or other ill-treatment in their home country to remain in Ukraine (sometimes referred to in the context of refugee protection as “subsidiary protection”). Nor does it contain safeguards against deportation where a person asserts that he or she would be at risk of torture or other ill-treatment contrary to Article 3 of the CAT or the ECHR if returned. The lack of safeguards against return to torture results in the deportation of persons in need of protection, most notably Chechens.⁹⁸ Migration officials, including those in the new government, do not consider protection against return to torture to be a priority and have ignored UNHCR proposals to improve the legislative framework.⁹⁹

Impact of Detention on the Right to Seek Asylum

Ukraine relies on the detention of foreign nationals as its main migration control policy. Because Ukrainian border police routinely arrest and detain undocumented migrants, including would-be asylum seekers, potential asylum seekers are often unable to meet the strict application deadlines (as noted above), and many become “illegal.” Though administrative detention can be a legal measure, its routine use results in serious human rights violations. Among these are: prolonged detention; conditions of detention which do not meet the minimum standards established by international law; and limitations of procedural rights for those in detention, including access to information about rights and procedures, access to counsel, access to a doctor, and communication with the outside world, etc. This series of violations culminates in the denial of the right to seek asylum.

Article 9 of the Ukrainian Law on Refugees requires border guards to release from detention any asylum seeker who has lodged an asylum application. Article 9, together with Article 204 of the Code of Administrative Violations, provides that individuals who crossed the Ukrainian border without lawful permission are not criminally liable if they did so with the aim of receiving refugee status.

Asylum seekers are detained before having a chance to seek asylum and are held in detention even after they have made an application. Gen. Boris Marchenko, the head of the Ukrainian Border Guard Service, told Human Rights Watch: “Even if they already applied [lodged an asylum application], we [the Border Guard Service] still keep them because the migration service don’t have anywhere to accommodate them.”¹⁰⁰

When asylum seekers lodge an application from a detention center, they are released only after a positive decision is issued by the migration service granting them refugee status. The routine detention of asylum seekers is incompatible with UNHCR guidelines.¹⁰¹

Some detainees told Human Rights Watch that they applied for asylum prior to being apprehended, but that the police destroyed the UNCHR-issued letters attesting that their asylum claims were being processed.¹⁰² In some cases, detainees were able to obtain a duplicate copy of the letter from UNHCR and secure their release.¹⁰³ A Ministry of Internal Affairs official interviewed about the functionality of the agreement with UNHCR and the refusal to recognize pending letters told Human Rights Watch, “We don’t consider these certificates as legal in the territory of Ukraine… They [UNHCR] lobbied for these documents to be eligible....”¹⁰⁴

Refusal of Guards to Transfer Applications

Articles 8 and 9 of the Ukrainian Law on Refugees require that border guards and Internal Affairs agencies (police) transfer asylum applications lodged by detainees to the offices of the regional migration service. Numerous detainees told Human Rights Watch that guards discouraged them or refused to accept their applications for asylum or to transfer the applications to the regional migration service.¹⁰⁵ M.M., an Indian detainee, told Human Rights Watch, “I want to stay in this country. I told them [the police officers] that I want to stay [and seek asylum] and the corridor man [police officer] said that this is impossible.”¹⁰⁶

Detainees, UNHCR staff, and lawyers also told Human Rights Watch that in some facilities (particularly the Pavshino center for men) the transfer of applications depends on the good will of the border guard officials or the payment of bribes.¹⁰⁷ A human rights lawyer interviewed by Human Rights Watch said that the border guards frequently fail to forward applications and then claim that the applications were “lost.” “How can you have forty-two applications lost?” he asked.¹⁰⁸

K.K. and K.Z., Chechens seeking resettlement to a third country through UNHCR, were caught when trying to cross to Slovakia together with their five-year-old son and eleven-year-old daughter. They described their failed attempt to lodge an asylum application: “We asked to apply for asylum while we were [detained] in Chop [border-guard detention facility]. We were told that there is no one to help us with that.”¹⁰⁹ Not having access to a lawyer and not being able to lodge an asylum application, they ended up paying a bribe of a hundred hryvnas (equivalent to approximately U.S.$20) to be transferred to Mukachevo.

A migration service official admitted to Human Rights Watch that border guards in Transcarpathia region stalled the transfer of applications for months and then sent a huge batch at once.¹¹⁰ The migration service in Uzghorod received about 150 applications in December 2004 (out of a total of 240 applications in the entire year). Many of these applications had been filled out earlier. The limited capacity of the migration service meant that they were overwhelmed and unable to process such a large number of applications at once, resulting in further delays.¹¹¹ 

Human Rights Watch interviews indicate that the deliberate delay in the transfer of applications by guards is synchronized with encouraging detainees to ask relatives in home countries to transfer money to pay for lawyers who work in collusion with the border guards.¹¹² A lawyer who provides free assistance to asylum seekers described the process in the following terms: “They [the border guards] know that if they push people they will find some money and [the border guards] will profit, all of them… Our procedure is free but long because border guards delay applications; with paid lawyers it is quick and expensive and [the lawyers and border guards] divide the money [between them].”¹¹³

Systematic Profiling of Foreign Nationals

Local and international media sources as well as members of the international community living in Ukraine have reported harassment, unwarranted arrest, and extortion by police officers directed against foreign nationals, including migrants and asylum seekers. African asylum seekers are obvious targets.¹¹⁴ F.F., an asylum seeker from Côte d’Ivoire, told us “I have to hide all the time, I left a hell to find another hell.”¹¹⁵

Chechens are another preferred target for police harassment, regardless of their status.¹¹⁶ Although Chechens, as citizens of the Russian Federation, do not need visas for Ukraine, Chechens are routinely denied entry to Ukraine at the border and have to bribe to get access. ¹¹⁷ A., a Chechen woman interviewed in Kyiv, told us “If we are Chechens it is like a stamp at the border.”¹¹⁸ This holds true even in cases where Chechens clearly state their intention to seek asylum or in some cases provide proof that they have in fact already applied for or are otherwise still engaged in an asylum process in Ukraine.

D., a Chechen woman recognized by UNHCR in Ukraine as an asylum applicant, who had returned to Chechnya to take care of personal matters, was pulled off a train with her three children as she tried to re-enter Ukraine:

It was 4:00 a.m. in early January. I was the only person in the train [who was] Chechen; I asked why they took me out. They said, “Because you are Chechen and we have an order to take you out.” I said, “I am a refugee, my children are studying in Ukraine, I have a letter from the United Nations.” I showed them documents but they were not enough. They just wanted my stuff. They told me to pay if I want to stay in the train. I had to wait till the morning in the cold with nothing, no mattress on a bench. They guarded us, [but offered us] no food or water. I asked for some hot water and they didn’t give me any, as if we don’t have any rights. They don’t consider us human beings. ¹¹⁹  

The vast majority of Chechens apprehended while trying to enter the E.U. from Ukraine are denied access to asylum procedures in Ukraine. Among the 760 Chechens apprehended while trying to cross the western border of Ukraine into the E.U. without permission in 2004, only one was able to seek asylum.¹²⁰ UNHCR have indicated to Human Rights Watch that not a single Chechen has been granted asylum in Ukraine. Instead (as illustrated by the case of the four men mentioned above), Chechens are frequently forcibly returned to the territory of the Russian Federation.

Even recognized Chechen refugees or Chechens who are naturalized citizens in Ukraine by virtue of family ties suffer harassment by the police.¹²¹ E., a Chechen woman, summed up her experiences: “We have no rights here, no right to live, to die, to get documents.”¹²² In the words of D., a Chechen who sought asylum in Ukraine: “We were told that we’ve been rejected because we are Chechen and as Chechens we have no rights anywhere.” ¹²³

Many of the Chechens interviewed stated that while they were recognized as refugees by UNHCR within its own refugee status determination procedure (RSD), their applications are summarily refused by the Ukrainian migration service.¹²⁴ A., a Chechen woman recognized by UNHCR Kyiv as deserving international protection, applied twice to the Ukrainian authorities for status, but her application was rejected without explanation. She told Human Rights Watch that registration with the Ukrainian migration service was a “low probability because Ukrainians don’t want us in.” She continued, “I have two rejections at home; after three, six months of processing, they reject [the applications]. They don’t consider Chechens to be human beings. Because we don’t have status, we can’t work. Without registration we are not human beings.”¹²⁵

The apparent arbitrary treatment of Chechens leaves the Ukrainian government open to charges of discrimination in terms of access to asylum, deportation and expulsion proceedings.¹²⁶

Processing Within the Ukrainian Asylum System

An average of between 1,000 and 1,400 people apply for asylum in Ukraine each year. The recognition rate is 4 percent. NGOs are concerned that the State Committee on Nationalities and Migration has informally established a quota of recognized refugees of sixty people per year, and that there is no alternate form of protection granted to failed asylum seekers who are nonetheless in need of international protection.

The asylum system is characterized by the poor quality of decision making and delays in processing applications. Asylum seekers who lodge applications with the Ukrainian migration service have to wait for more than a year for a final decision, should the case go through the appeal stages (as the vast majority of cases do).¹²⁷ The poor quality of determinations reflects a lack of professional training for migration service staff. Decisions of the migration service seen by Human Rights Watch lack an individual analysis in the reasoning of the decisions, and country of origin information is barely used or is outdated.¹²⁸

The Law on Refugees provides that when the asylum application is unsuccessful in the first instance before the regional migration service, asylum seekers may appeal to the SCNM, which must give a decision within one month. Due to a 1997 decision of the Ukrainian Supreme Court which affirmed the right to challenge decisions of public agencies, it is possible for asylum seekers to appeal against the decision of the SCNM in a court of law. Appeals are lodged with district courts, with further challenges are possible in the appeal courts and Supreme Court.¹²⁹ In practice only a limited number of final decisions of the SCNM are challenged in the courts. Very few decisions are reversed on appeal.¹³⁰ Lawyers and UNHCR alike expressed concerns regarding the preparedness of the judiciary to hear appeals in asylum cases. Trainings and seminars are offered regularly, but as judges are rotated frequently there is never enough time to build a serious body of expertise in the judiciary.

Alternative Protection: UNHCR’s Refugee Status Determination

In recognition of the failure of the Ukrainian asylum system to protect persons in need of international protection, the UNHCR office in Kyiv introduced several procedures. It established its own refugee status determination program (RSD), as mentioned above. In 2003, UNHCR began issuing letters attesting that the bearer had a pending claim for asylum.¹³¹  In May 2003 UNHCR also introduced a program to resettle refugees to third countries.¹³²

As already noted, the RSD is used for the purpose of identifying persons of concern who subsequently receive legal and social support through UNHCR’s implementing partner NGOs. Refugee status determinations in Kiev are carried out jointly by UNHCR and an international NGO, Hebrew Immigrant Aid Society (HIAS), which provides legal and social services for asylum seekers.¹³³ In Lviv all determinations are carried out by “Human Rights Have No Borders,” a Ukrainian human rights group mandated by UNHCR.¹³⁴

By the end of 2004, fifty persons registered with UNHCR had been determined as being of concern (29.4 percent) and 120 as not of concern for UNHCR in first-instance procedures. Out of the forty-seven appeals, four received a positive reply and twenty-one first instance rejections had been upheld.¹³⁵