In 2021, the establishment of a statelessness determination procedure in Ukraine gave people who for a long time could not regularise their status an opportunity to obtain a residence permit. However, early implementation of the procedure has shown that legislative obstacles that may lead to deportation of stateless people still remain.
Due to a mix of reasons, namely the collapse of the USSR, past and current armed conflicts and discrimination of certain national minorities, a significant number of stateless people live in Ukraine. Most of them are undocumented and have no residence permit in Ukraine. While some guarantees of the rights of stateless people existed before, the statelessness determination procedure formalising their rights was introduced only in 2021. Before that, the majority of stateless people did not have any documents confirming their identity and/or legal status. This meant that their stay in Ukraine was considered irregular.
It took Ukraine 30 years since its independence to introduce a statelessness determination procedure and to provide an opportunity to people to be recognised as a stateless person. The majority of the stateless population currently in Ukraine have lived here for decades and already have well-established lives and social ties. But the lack of a determination procedure meant that they could not regularise their residence in Ukraine. As a result, individuals were often placed in immigration detention and issued with a forced return or deportation order.
The determination procedure was created in order to break this vicious cycle and to document and regularise the stay of stateless individuals, by giving them the opportunity to exercise their rights and responsibilities. According to the current determination procedure, which was introduced under the 2020 law "On the Legal Status of Foreigners and Stateless Persons", a person can be recognised as stateless, regardless of their residence status in Ukraine. After being granted the status of a stateless person, the individual is then required to apply for a temporary residence permit in Ukraine. The permit is a document confirming the status of the person and their right to reside in Ukraine, within the prescribed period. That is, the State decides on granting statelessness status regardless of the individual’s residence status and may not refuse to grant this status on the sole ground that the individual’s stay in Ukraine was irregular.
In practice this means that a person must first successfully go through the determination procedure, and only after this has been concluded can they apply for a temporary residence permit. These two procedures are related to each other, and in the event that a person fails to obtain a temporary residence permit, they may not regularise their stay in Ukraine. The issues we have observed recently is that the current legislation still has a provision that allows a person to be refused a temporary residence permit if a decision on the forced return or deportation was previously issued by a court in connection with a violation of the legislation on residence status prior to the introduction of the determination procedure.
This doesn’t take into account the fact that prior to the new determination procedure stateless individuals didn’t have a legal avenue to regularise their stay. As a result, a situation arises in which the State first grants a person statelessness status, and then refuses to issue the necessary documents, preventing them from regularising their stay in Ukraine.
We have recently worked with a stateless person of Georgian origin, who had been living in Ukraine for decades without the necessary documents. He was finally able to use the procedure and apply for a temporary residence permit in order to regularise his residence in Ukraine. However, he was denied a residence permit on the basis of an unenforced decision on forced return, which existed before the person was able to apply for statelessness status. This highlights the need that the legislation should be amended to allow grants of residence permit to stateless people who previously lived in Ukraine without a residence permit.
The current situation puts people who have a previous forced return or deportation order issued against them in a state of legal uncertainty. It is worth stressing that in order to implement the decision on forced return, the person needs to have a travel document to leave the country, which, of course many stateless people do not have. Through our case work we have seen a number of cases where individuals recognised as stateless under the current procedure were later refused a temporary residence permit by the State Migration Service on the basis of an unfulfilled decision on forced return or deportation. With the order being unenforceable, this again puts them in a catch-22 situation and without the necessary protection and rights owed to them as a stateless person.
It is becoming more and more evident that while the majority of stateless people in Ukraine did not have the opportunity to regularise their status for reasons beyond their control, the State is now obliged to take appropriate measures and amend the current legislation to enable people recognised as stateless to obtain a residence permit regardless of any previous deportation or forced return orders.