ANALYTICAL NOTE: What will the Draft Law 3387 «On the Provision of Protection of Foreigners and Stateless Persons» bring?

ANALYTICAL NOTE: What will the Draft Law 3387 «On the Provision of Protection of Foreigners and Stateless Persons» bring?

02/06/2021

On April 23, 2020, the Draft Law No 3387 «On the provision of protection of foreigners and stateless persons» was submitted to the Verkhovna Rada of Ukraine. The main ideologist of the adoption of this bill is the State Migration Service of Ukraine.

Among the positive innovations and changes in the procedure for granting protection proposed by the Draft Law No 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 terms for appealing against negative decisions («denials») have been extended from 5 to 30 days.
  3. For the first time, a list of forms of persecution as a basis to obtain refugee status and forms of serious harm as a right to receive supplementary protection was defined (Article 18).
  4. The conceptual framework has been expanded and the following definitions have been formulated: «information on the country of origin», «derivative status», «integration», «integration program», «asylum seeker», «asylum seeker requiring special procedural guarantees», «asylum».
  5. The prohibition of expulsion provided for in Article 3 will also apply to asylum seekers – 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 supplementary 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.
  6. Article 47 of the draft law provides that asylum 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 are in a situation now, where asylum seekers lost the right to free medical care, even emergency care.

Along with positive innovations, the proposed norms in the draft law create significant risks for asylum seekers. The main of them can be found below (however it is far from an exhaustive list):

  1. Detention. According to Article 6 of the draft law, 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 centre for foreigners and stateless persons as long as the procedure for considering his or her application lasts. The purpose, the maximum period of the detention or the procedure for reviewing the detention order are not specified. 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, and in some cases detention may last for several years.
  2. There are two forms of the procedure for granting protection: general and expedited procedure. Applications that are obviously unfounded or inadmissible will be considered in the expedited consideration; and a list of reasons for which applications may be recognized as obviously unfounded and inadmissible for consideration will be submitted. These grounds contain a lot of evaluative judgments, which will depend on the interpretation of the Migration Service officials. Also, the statement of the asylum seeker who made an illegal entry into Ukraine and did not apply for protection without delay and did not provide substantiated written explanations regarding the illegal entry or illegal stay in Ukraine, will also obviously be unfounded. Or there are reasonable grounds to believe that a foreigner is applying for protection only with the aim to prevent the application of the procedure of expulsion or extradition to him or her. In addition, a re-application for protection will be considered inadmissible.
  3. Asylum seekers will be prohibited from registering a marriage (paragraph 17, part 1 of Article 47).
  4. 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.
  5. Despite the proposed legislative definition of integration, the concept of integration is narrowed (paragraph 16, part 1 of Article 1). Only recognized refugees and persons who have received supplementary protection have access to the integration program. Asylum seekers are not covered by the integration program. Also, children and adolescents who receive preschool or general secondary education may not participate in the integration program (Article 49).
  6. It is not possible to eliminate the mandatory obtaining of a work permit for asylum seeker protection (paragraph 2, part 3 of the final and transitional provisions of the bill). Moreover, such a permit can only be obtained by asylum seeker previously identified by the State Migration Service. Currently, asylum seekers do not receive any financial assistance from the state and have to support themselves somehow. Since there is a lack of available places in temporary accommodation centres (about 350 places with an annual number of applications from 500 to 800), the employment is a lifeline for survival. If it is impossible to get an official employment and support them, asylum seekers make an attempt to leave Ukraine illegally, and the Migration Service later uses this fact as an argument for refusing refugee status or supplementary protection.
  7. Asylum seekers will be further documented with certificates that will prove their lawful stay on the territory of Ukraine and not prove their identity (paragraph 6, part 1 of Article 1). This situation blocks the integration, employment, and social protection of asylum seekers since many of them lack identification documents.

 

UNHCR's comments on the bill can be found at the link:

  1. Commentary on the first edition (UNHCR Comments to the Draft Law of Ukraine to Granting Protection to Foreigners and Stateless Persons), which was prepared by the State Migration Service. Then the text was significantly changed and registered in the Verkhovna Rada of Ukraine in a different form, as it is now.
  2. UNHCR Observations on the New Version of the Draft Law on Granting Protection to Foreigners and Stateless Persons,

 

Prepared by Eugenia Melesh,

lawyer of  Charitable Organization «Medical Aid Committee in Zakarpattya» (CAMZ)


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