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To the Ukrainian Government:
Asylum Procedures
Amend existing legislation to provide accessible mechanisms to allow access to asylum procedures, in particular, by providing a meaningful right to a lawyer, as well as establishing in law a transparent process for challenging a deportation order. Make sure that the provisions and enforcement of the Law on Refugees, Code of Administrative Violations, Law on Militia, Law on the State Border Guard Service, Law on Legal Status of Aliens, and the Law on Immigration comply with human rights standards.
Ensure that the information pamphlets created in cooperation with UNHCR and distributed to border points, detention centers, and police stations are provided to asylum seekers promptly. Provide interpreters, and video “know your rights” presentations, on an as-needed basis for migrants.
Take measures to secure the practical implementation of the 2004 internal instructions to the SCNM and Border Guard guaranteeing the referral of all asylum claims by the border guards to the competent authorities.
Increase the number of asylum adjudicators and improve their training so that asylum applications will be decided fairly and appropriately in a timely manner.
Allocate adequate resources to ensure that the migration service is provided with comprehensive and up-to-date country-of-origin information, including the reports of NGOs, so that adjudicators will be better informed about conditions in refugee-producing countries.
Promptly issue documentation to asylum seekers, including to those in detention, and instruct all law enforcement officers and other officials to recognize UNHCR-issued attestation letters.
Refrain from returning Chechen asylum seekers until their protection needs are determined.
Detention of migrants and asylum seekers
Migrants and asylum seekers should not be detained beyond the proscribed limits in Ukrainian law: thirty days for being undocumented in the interior; six months pending deportation for persons detained for entering without permission or for attempting to cross into the E.U. without documents.
Amend paragraph 3 of the Regulation on the Center for Temporary Detention of Foreigners and Stateless Persons illegally residing in Ukraine, which allows the extension of detention beyond six months, to bring it into line with the general thirty day and six-month detention time limits.
Ensure that persons subject to detention on immigration grounds have a prompt and effective opportunity to challenge a detention order before a court of law. Detention should be subject to periodic review by judicial authorities. The detained person and his or her legal representatives should have the right to be present at such reviews.
Immediately release from detention unaccompanied children. Where possible, they should be released into the care of family members living in Ukraine. Where this is not possible, they should be provided appropriate accommodation and care by competent child-care authorities.
Ensure that routine and emergency medical care is available to all immigration detainees. Provide detainees with adequate facilities for exercise and access to fresh air on a daily basis and provide food that is nutritious and sufficient and that satisfies, as far as possible, the religious and cultural requirements of the immigration detainees.
Allow representatives of migrants' groups, humanitarian agencies, intergovernmental bodies, and NGOs to visit migrants and asylum seekers in detention. Allow NGOs and UNHCR unannounced access to the temporary detention facilities to monitor conditions.
Pursue ways to alleviate overcrowding, including, if necessary, by amending the law to allow the use of alternatives to detention (such as reporting obligations, residency or guarantor requirements, posting of bonds, community supervision, or open residency centers).
Develop and implement a complaints procedure regarding conditions of detention. All detainees should be informed of the existence of a complaints procedure and receive a copy of the document in a language they understand. The procedure should insulate detainees from retribution for registering complaints. Detainees should have access to a judicial remedy for abuses suffered in detention that amount to torture or other cruel, inhuman or degrading treatment or punishment.
Strengthening human rights protection
Sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Reaffirm the Ukrainian government's commitment to human rights by extending a standing invitation to all thematic special procedures, in particular to the U.N. Special Rapporteur on the Human Rights of Migrants, the U.N. Special Rapporteur on Torture, and the U.N. Working Group on Arbitrary Detention.
Ratify Protocol 12 of the European Convention on Human Rights and adopt implementing legislation to fulfill existing obligations under the ECHR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), in particular by adopting anti-discrimination legislation to prevent, prohibit, and provide adequate sanctions and remedies for any discriminatory conduct, including acts of discrimination against non-nationals.
Implement fully any future recommendations from the European Committee for the Prevention of Torture (CPT) on improvements to detention conditions for migrants and asylum seekers in Ukraine.
Anti-corruption measures
Adopt anti-corruption strategies and policies and provide training for staff of the State Border Guard Service and of the Ministry of Internal Affairs on their implementation. Personnel found responsible for violations should be subject to disciplinary and/or criminal proceedings, depending on the nature and extent of the abuse.
To the European Union and Its Member States:
E.U. Member States
Ensure that all national measures to prevent unauthorized entry and residence and the removal of undocumented residents from the territory of the European Union fully respect human rights and refugee law.
Refrain from sending asylum seekers and refugees to Ukraine, on the basis of their first stay or mere transit there, until the country has a fair and efficient asylum process.
Ensure that any future Regional Protection Program covering Ukraine is not used to justify the exclusion from the E.U. of asylum seekers who transit through Ukraine, or their summary removal from E.U. territory without first determining their protection needs.
Justice and Home Affairs Council
Ensure that the E.U. returns policy includes accountability for law enforcement and immigration officials who violate any safeguards aimed at preserving returnees' rights, particularly those established under Article 3 of the ECHR and CAT.
Ensure that E.U. immigration-control measures, including the draft directive on common standards for the return of irregular migrants and the regulation establishing a Community Code on the rules governing the movement of persons across borders, include safeguards to ensure protection for refugees and respect for the human rights of migrants. In particular, procedural safeguards during deportation should be an essential element of an E.U. returns policy.
Under the European Neighbourhood Policy, prioritize improvement of the refugee protection mechanisms and human rights over migration management and control, and help Ukraine to upgrade its reception and detention conditions and amend its asylum and migration policies through funding made available for capacity building and institutional development.
European Commission
Encourage independent monitoring by NGOs of the points of entry into the E.U. (border check points, temporary reception centers, detention facilities for asylum seekers and migrants), in order to increase transparency and in the interest of guaranteeing that the right to seek asylum is respected.
Create an institutional mechanism to review the human rights impact of bilateral readmission agreements and address the lack of human rights benchmarks in readmission agreements.
Create a Plan of Action to ensure respect for human rights prior to, during and after returns under the E.U. Readmission Agreement with Ukraine, including a tracking mechanism for the returns, a complaints mechanism, and a practical guide for the implementation of the returns.
Condition the implementation of the Agreement on a clear set of benchmarks assessing required legislative improvements and the upgrading of reception and detention conditions in Ukraine.
Earmark additional funding for the care and protection of returned migrants and failed asylum seekers in Ukraine, with an emphasis on funding capacity building for the asylum system, the improvement of reception and detention conditions, and the creation of smaller, home-type residential facilities with adequate, trained professional staff.
Invite representatives of NGOs, UNHCR and the Ukrainian Ombudsman office to participate in the Committee of Experts when it is established to monitor the application and interpretation of the E.U. Readmission Agreement with Ukraine.
European Parliament
Ensure under co-decision procedures that E.U. immigration control measures, including the draft directive on common standards for the return of irregular migrants and the regulation establishing a Community Code on the rules governing the movement of persons across borders, include safeguards to ensure protection for refugees and respect for the human rights of migrants. In particular, procedural safeguards during deportation should be an essential element of an E.U. returns policy.
When consulted by the Council, prior tothe conclusion of the E.U. Readmission Agreement with Ukraine, call for the agreement to condition the implementation of returns on the amendment of legal provisions on asylum and migration in Ukraine, and on improvements of reception and detention conditions.
To the External Border Agency
The European Agency for the Management of Operation Cooperation at External Borders (European Border Agency/FRONTEX) should coordinate common trainings for national border guards, develop a practical guide for the implementation of returns, and spell out the human rights standards applicable to each stage of the returns procedure.
To the Hungarian, Slovak and Polish governments
Improve the legal framework and provide training for border guards to ensure that asylum seekers have access to E.U. territory and the opportunity to file asylum applications, including access to free legal representation and to counseling provided by specialized NGOs.
The Slovak and Polish governments should immediately stop returns of migrants and asylum seekers to Ukraine under accelerated procedures at least until the conditions in Ukraine are markedly improved. Indicators of improvement should include: Ukraine’s compliance with the right to seek asylum and the principle of nonrefoulement; detention conditions in accord with international standards; and measures to bringasylum and migration legislation into line with Ukraine’s international obligations.
Explore non-custodial alternatives to detention, such as reporting obligations or guarantor requirements, and adopt measures to put an end to arbitrary arrest and detention of asylum seekers and migrants.
Adopt legislation providing for concrete measures to prevent the violation of the human rights of asylum seekers and migrants while in transit from E.U. territory to Ukraine, including complaint mechanisms, continuous monitoring of detention facilities by public prosecutors, and access for NGOs to conduct ad hoc monitoring.
Sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and extend a standing invitation to the U.N. Special Rapporteur on the Human Rights of Migrants.
To the Council of Europe
During its next country visit to Ukraine, the European Commission against Racism and Intolerance (ECRI) should investigate the treatment of migrants and asylum seekers and provide guidance on anti-discrimination legislation and policies, ensuring that they cover treatment of non-nationals.
The Parliamentary Assembly of the Council of Europe (PACE) should commission the ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) to monitor the implementation of its Guidelines on Forced Return of Illegal Residents, particularly by the countries at the eastern rim of the E.U.
The PACE Monitoring Committee should examine Ukraine’s treatment of migrants and asylum seekers in its next report on the country’s honoring of its obligations and commitments flowing from its Council of Europe membership.
The Council of Europe Commissioner for Human Rights should conduct a country visit to Ukraine, and include treatment of migrants and asylum seekers as a key area of focus for his work.
To the United Nations High Commissioner for Refugees (UNHCR)
Communicate to the E.U. and the individual member states that readmission agreements should not be interpreted to preclude the right of asylum seekers for a fair hearing on the merits of their claims prior to return, and that all readmission agreements should include specific provisions upholding the principle of nonrefoulement.
Work to increase third country resettlement for those at risk in Ukraine (particularly Chechen asylum seekers) due to the failure of effective protection and complete lack of integration prospects for refugees.
Ensure that the UNHCR office in Ukraine has sufficient resources to increase its monitoring capacity regarding access to asylum in Ukraine, to assist and advise Ukrainian migration service officials on refugee status determinations, to conduct third country resettlement referrals, to provide legal and humanitarian assistance to refugees and asylum seekers, and to intervene with the government when necessary to protect refugees and asylum seekers, particularly when detained or at risk of refoulement.
Provide regular training on refugee protection and access to asylum to police, border guards, migration service officials, lawyers and judges.
To the U.N. Working Group on Arbitrary Detention
Request an invitation to visit Ukraine and the neighboring countries in furtherance of its 1997 mandate expansion to include the administrative detention of migrants and asylum seekers.
To the U.N. Special Rapporteur on the Human Rights of Migrants
Request an invitation to visit Ukraine to examine the treatment of migrants and asylum seekers in the country.
Address in his annual reports to the U.N Commission on Human Rights and the U.N. General Assembly the practice of detention of migrants as a deterrent and the returns conducted under bilateral readmission agreements, and articulate recommendations to prevent and remedy violations of the human rights of migrants during returns.
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