The lawyer of CAMZ prepared an analytical note on the draft law "On the provision of protection of foreigners and stateless persons"

The lawyer of CAMZ prepared an analytical note on the draft law "On the provision of protection of foreigners and stateless persons"

10/02/2021

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".

POSITIVE INNOVATIONS

Among the positive innovations and changes in the procedure for granting protection proposed by the draft law №3387, the following can be noted:

  1. The bill, in addition to the current forms of protection (refugee status, supplementary and temporary protection), defines the procedure for granting a new form of protection – asylum. The existence of this status is provided by Part 2 of Article 26 of the Constitution of Ukraine, but it has not yet been regulated by law. Granting asylum in accordance with paragraph 26 of Article 106 of the Constitution of Ukraine belongs to the powers of the President of Ukraine; but according to the bill, asylum cases will for some reason be considered in advance by the Citizenship Commission. There is a risk that the Citizenship Commission will not be prepared to deal with applications of different status and nature, such as applications for citizenship and asylum applications.
  2. The conceptual framework has been expanded and the following definitions have been formulated: “information on the country of origin”, “derivative status”, “integration”, “integration program”, “seeker of protection”, “seeker of protection requiring special procedural guarantees”, “asylum”.
  3. The prohibition of expulsion provided for in Article 3 will also apply to persons seeking protection - those who are in the process and awaiting a decision on their application for protection (in the current law, such a prohibition applies only to refugees and persons who have been granted additional protection). However, part 4 of Article 3 of the draft law, which concerns exceptions to the prohibition of expulsion, contradicts the 1951 Convention relating to the Status of Refugees, as it includes an additional ground for exclusion, which is not in the Convention – the commission of a serious crime in Ukraine (the Convention indicates, apart from the possible grounds, only the current sentence for committing a particularly serious crime). In addition, Article 3 of another international treaty, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, explicitly prohibits the expulsion, return or extradition of any person to another state if there are serious grounds to believe that the person could be threatened with torture there, without exception. And Article 61 of the Istanbul Convention requires Parties to take the necessary legislative or other measures to comply with the principle of non-refoulement in accordance with existing obligations under international law.
  4. The deadlines for appealing against negative decisions of the authorized body considering applications for the provision of protection have been extended from 5 to 30 days.
  5. This is the first bill in the history of the national protection system, which contains a list of forms of persecution as a basis for obtaining refugee status and forms of serious harm as a basis for obtaining additional protection. Moreover, according to Article 18, forms of persecution include not only acts of physical or psychological violence, acts of sexual violence, but also gender-based violence or violence against children, other discriminatory measures that may threaten the life and liberty of a person. However, such wording may lead to confusion in terms, since there is no term “gender-based violence” in Ukrainian legislation, but the term “violence according to gender”. However, the term used by the Istanbul Convention in the official English-language version in Article 3 is “gender-based violence against women”, so it would be advisable to reformulate this form of persecution from “gender violence” to “gender-based violence”.
  6. The draft law contains a definition of “a seeker of protection who needs special procedural guarantees”, which includes seekers of protection who, due to individual circumstances (minority, incapacity, serious illness, mental disorders, pregnancy, a victim of psychological or physical violence, a victim of human trafficking) have limited opportunities to use their rights and comply with the obligations established by this law (paragraph 48 of Article 1). As can be seen from the wording of the article - this list is not exhaustive, but it would be advisable to supplement it with gender-based violence.
  7. Article 47 of the draft law provides that protection seekers have the right to free emergency medical care, primary medical care, and secondary (specialized) medical care. Why is it important? Because as a result of the initiated medical reform, we now have a situation where the seekers of protection have lost the right to free medical care, even emergency care. Often, protection seekers who have suffered from gender-based violence need not only emergency medical care.

RISKS

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.


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