In 2002, Ukraine joined the Refugee Convention (1951) and the Refugee Protocol (1967). So, Ukraine provides protection to the foreign citizens and stateless persons who are looking for it on its territory. However, due to the specifics of the procedure, it is necessary to familiarize yourself with the national legislation in this area in advance.
Legislation
In addition to the Convention and the Protocol, the legally enforceable enactments regulating the procedure for recognition as a refugee or a person in need of subsidiary/temporary protection in Ukraine include:
- The Law of Ukraine “On Refugees and Persons in Need of subsidiary or temporary protection” (hereinafter the Law of Ukraine);
- Order of the Ministry of Internal Affairs of Ukraine On the approval of the Rules for the examination of applications and the preparation of documents necessary to resolve the issue of recognition as a refugee or a person in need of subsidiary protection, loss, and deprivation of refugee status and additional protection and cancellation of the decision on recognizing a person as a refugee or person in need of subsidiary protection.
Refugee. A person in need of subsidiary/temporary protection in Ukraine. What is the difference
Under the Law of Ukraine:
Refugee – a person, who is not a citizen of Ukraine and who resides in a country other than the country of his/her origin as a result of fear of becoming a victim of persecution based on race, religion, ethnicity, citizenship (nationality), belonging to a certain social group or political convictions and cannot use the protection of the country of origin or doesn’t want to use such protection because of such fears, or doesn’t have citizenship (nationality) and being abroad the country of his/her permanent stay cannot or do not want to return to his/her own country because of the mentioned fears.
A person in need of subsidiary protection – a person, who is not a refugee in accordance with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and the present Law, but is in need of protection whereas such person was forced to arrive in Ukraine or stay in Ukraine in consequence of the threat to his/her life, safety or freedom in the country of origin owing to fear of execution in relation to him/her a death penalty or implementation of judgment on the death penalty, torture or inhuman or degrading treatment or punishment.
A person in need of temporary protection – a foreigner and/or stateless person, who is forced en masse to seek protection in Ukraine in consequence of external aggression, foreign occupation, civil war, ethnic clashes, natural disasters, man-made disasters or other events which violate public order in a certain part or throughout the country of origin.
The criteria for determining refugee status are:
- residing in a country other than the country of origin;
- the existence of reasonable fear;
- being a victim of persecution* based on race, religion, ethnicity, citizenship (nationality), belonging to certain social groups or political convictions.
*Persecution is considered a violation of fundamental human rights and freedoms, which directly include:
- Freedom from slavery and servitude;
- Freedom from torture or cruel, inhuman or degrading treatment or punishment;
- Freedom from arbitrary arrest, detention or exile;
- Freedom of thought, conscience, and religion;
- Freedom from unreasonable interference in his personal and family life and the like.
Therefore, if a person does not meet the criteria determined by the law for recognition as a refugee, but there is a threat to his life, security or freedom in the country of origin due to fears of the death penalty or execution of the death penalty or torture, inhuman or degrading treatment or punishment or widespread violence in situations of international or internal armed conflict or a systematic violation of human rights, and may not or not want to return to such a country as a result of these fears, he/she may apply for additional protection.
The procedure of applying for protection
If the asylum seeker meets the criteria determined by the legislation of Ukraine for recognition as a refugee or a person in need of additional protection, he /she needs to:
- When crossing the border, apply to the representatives of the State Border Service of Ukraine with the statement that he/she is an asylum seeker.
Officials of the State Border Service when applying for protection under the Order of the Ministry of Internal Affairs of Ukraine No. 772 of 08/10/2016: provide such a person with an application form for recognition as a refugee or as a person in need of additional protection.
In a written application for protection, in addition to the reason for applying for protection, the following information shall also be indicated: last name, first name and, if available, the middle name of the applicant, passport data or another identification document (in the absence thereof, the reasons and circumstances due to which it was lost), citizenship, country of permanent residence, place, time and method of crossing the state border of Ukraine, information about the family members of the applicant, date of its filling in. This application shall be signed by the applicant or his legal representative, translator (if involved).
If the asylum seeker cannot write or he/she has physical flaws that make it impossible, the application can be filled in by another person at his/her request. An appropriate note about it shall be made in the application.
Officials of the State Border Service of Ukraine in case of applying for protection are obliged:
- explain to the asylum seeker the procedure of applying for protection under the legislation of Ukraine;
- provide information on the location and contact details of the nearest territorial body of the SMS (State migration service), where the asylum seeker can apply with a written statement of protection;
- involve a translator (if necessary).
- Apply to the respective territorial body of the State Migration Service of Ukraine during five working days on issues regarding his/her recognition as a refugee or a person in need of subsidiary protection.
Such an application is submitted personally by a foreigner or a stateless person to the respective territorial body of the State Migration Service of Ukraine at the place of the temporary stay of an applicant.
To the application for recognition as a refugee or as a person in need of additional protection shall be attached:
- documents certifying the identity of the applicant;
- documents and materials that may be proof of the existence of conditions for recognition as a refugee or as a person in need of additional protection.
If the applicant does not have documents certifying the identity, his/her surname, name, patronymic, and other information about him/her (previously, before identifying) are recorded at his/her guidance. It is indicated on the person’s registration sheet and the corresponding note is made on the application for recognition as a refugee or a person in need of additional protection.
State Migration Service of Ukraine:
- register the application and documents submitted for recognition as a refuge or a person in need of subsidiary protection;
- inform the applicant or his/her legal representatives under their own signature about the decision procedure following the application, as well as rights and responsibilities of a person to whom the authority has made a decision to process the documents of recognizing him/her as a refuge or a person in need of subsidiary protection;
- conduct fingerprinting of a person who has applied for recognition as a refugee or a person in need of subsidiary protection;
- if necessary direct the person for examination in order to establish age in accordance with the laws of Ukraine;
- fill in the registration application of a person who applied for recognition as a refugee or a person in need of subsidiary protection, and members of his/her family, who are under eighteen years of age;
- fill in other required documents;
- fill in a personal file;
- clarify the procedure for applying for free legal aid;
- !issues to the applicant a certificate of the application for protection in Ukraine and registers the applicant
Within fifteen working days from the date of registration of the application, the territorial body of the State Migration Service of Ukraine interviews the applicant considering the information contained in the application form and other documents that require additional information and decides on processing the documents of recognition as a refugee or a person in needs subsidiary protection or refusing to process those documents.
In case of taking a decision on processing documents of recognition as a refugee or a person in need of subsidiary protection, the territorial body of the State Migration Service of Ukraine continues the term of the certificate of application for protection in Ukraine.
In case of refusal to issue documents of recognizing as a refugee or a person in need of subsidiary protection the territorial body of the State Migration Service of Ukraine during three working days following the day of submitted application shall send the applicant a written notification with the list of reasons for such refusal and explanation regarding the appeal procedure.
- For two months since the day of the decision to process documents of recognition is provided the consideration of the application of recognizing as a refugee or a person in need of subsidiary protection. The term of consideration can be extended by the head of the territorial body of the State Migration Service of Ukraine following the argument-based submission of the official, who is considering the case, but for no longer than three months.
An official the territorial body of the State Migration Service of Ukraine conducts interviews with the applicant aimed to identify extra information that is necessary to verify the facts given by the applicant.
Also at this stage, the SMS directs the applicant for a medical examination. It is carried out under the procedure established by the central executive body, which ensures the formation of public health policy.
According to the results of comprehensive consideration and evaluation of all the documents and materials, which can be the evidence of available conditions for recognition as a refugee or a person in need of subsidiary protection, the specially authorized central executive authority on migration issues makes a decision on recognition or refusal to recognize as a refugee or a person in need of subsidiary protection.
In case of the refusal, the authorized official shall within seven business days send or issue to the applicant a written message stating the reasons for the refusal and an explanation of the procedure for appealing against such a decision. A certificate of the application for protection in Ukraine continues if the person disputes such a decision.
- A foreigner or a stateless person is recognized as a refugee or a person in need of subsidiary protection in Ukraine and considered to reside in Ukraine since the moment of approving a decision of recognizing him/her as a refugee or the one, who resides in Ukraine on a legal basis with no time limits.
The decision of the specially authorized central executive authority on migration issues together with the applicant’s personal file is sent during three working days to the territorial body of the State Migration Service of Ukraine, which considered the application.
- The territorial body of the State Migration Service of Ukraine during the period of fifteen working days since the day of receipt of the decision on recognition as a refugee or a person in need of subsidiary protection issues to each person, who has reached the age of sixteen, the refugee certificate or certificate of a person in need of subsidiary protection.
The refugee certificate or certificate of a person in need of subsidiary protection is issued for a five-year term.
Additionally, a foreigner, who was recognized as a refugee or a person in need of subsidiary protection, and has reached the age of sixteen, has a right to receive travel document for traveling abroad.
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