On April 23, 2020, a group of MPs submitted to the Verkhovna Rada of Ukraine a draft law №3387 "On Granting Protection to Foreigners and Stateless Persons". Its purpose is to regulate legislation in the field of protection of foreigners and stateless persons by implementing special norms of the European Union legislation to the legislation of Ukraine, as well as the elimination of gaps in national legislation related to the granting of asylum to persons in Ukraine.
Does the draft law No. 383387 take into account the requirements of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (hereinafter referred to as the Istanbul Convention) in order to protect the rights of asylum-seeking women and refugee women affected by gender violence? Will the protection system become effective and efficient if the draft law is passed? Eugenia Melesh, a lawyer of the Medical Aid in Committee Zakarpattia, prepared a detailed analysis of the document for the Analytical Centre "YurFem".
Among the positive innovations and changes in the procedure for granting protection proposed by the draft law №3387, the following can be noted:
Along with positive innovations, the proposed norms in the draft law create significant risks for protection seekers, including women who have suffered from gender-based violence.
The most obvious of such risks is the norm proposed in Article 6 of the draft law, which provides for the detention of foreigners and stateless persons who, before applying for protection, illegally crossed or attempted to cross the state border of Ukraine, violated the procedure for leaving the temporarily occupied territory of Ukraine or the area of the joint forces operation, until a final decision is made on the application for protection. That is, if the applicant for protection entered the territory of Ukraine illegally, or attempted to leave illegally, or is on the territory of Ukraine in violation of the law and does not have valid documents, in the case of a request for protection he or she will be detained at a temporary detention center for foreigners and stateless persons as long as the procedure for considering his / her application lasts.
Such detention will affect many seekers of protection, in each case, the period of detention will be different, it is impossible to predict its duration, in some cases, detention may last for several years. The wording of Article 6 does not contain the purpose of detention, nor alternatives to detention. Such a formulation of the law and detention on its basis will not comply with the principle of the rule of law and its components: legality, legal certainty, proportionality, and the prohibition of arbitrariness. It also contradicts the 2012 UNHCR Guidelines on Criteria and Standards Related to the Detention of Asylum Seekers and Alternatives to Detention. The bill is unlikely to provide effective assistance to seekers of protection requiring special procedural guarantees (including for women who have suffered from gender-based violence) in conditions of de facto imprisonment and complete uncertainty.
Moreover, the wording of Article 9 (2) and Article 11 (9) jeopardizes the access of women seeking protection who have suffered from gender-based violence to the assistance provided by the draft law, since the border service, if necessary, will ensure the transfer of such a protection seeker to the migration service, which, in turn, will also, if necessary, take measures to provide such a person with access to medical or psychological care. The bill does not prescribe who and how will determine the existence of a need. This wording of the relevant articles should be changed by removing the phrase “if necessary” from them, as well as a complete revision of Article 6 and the general approach to the total detention of seekers of protection who illegally crossed the border.
Unfortunately, the bill in no way addresses the effective access to the procedure for obtaining protection at the border (particularly at airports), which is constantly mentioned by human rights organizations and the Office of the United Nations High Commissioner for Refugees. Nor does it provide for any gender-sensitive admission procedure at the border and a mandatory gender-sensitive interpretation of every sign of persecution listed in Article 1, part 1, paragraph 2, of the draft law, as required by the Istanbul Convention in Article 60.
Recommendations: Despite certain positive innovations, the draft law needs substantial revision and proper public discussion with the involvement of non-governmental organizations that have been providing assistance and protection to seekers of protection and refugees for a long time, and have vast experience in this area. The current version of the bill cannot be adopted, as it carries the risks of violating the rights of seekers of protection, including women who have suffered from gender-based violence.