Ukraine is on the verge of a decisive step that will bring the State closer to solving the problem of statelessness, by establishing in law a national statelessness determination procedure.
Ukraine is on the verge of a decisive step that will bring the State closer to solving the problem of statelessness. In 2013, Ukraine acceded to both the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, and consequently undertook international obligations to regulate and improve the status of stateless persons residing on its territory. Although Ukraine already had a dedicated ‘stateless status’ established in law, until now there was no formal mechanism for acquiring stateless status and accessing protection. To date, thousands of stateless people in Ukraine have been unable to regularise their status due to the lack of a dedicated Statelessness Determination Procedure (SDP), which prevents them from exercising many of their fundamental rights.
On 16th June 2020, the Ukrainian Parliament adopted the Law “On Amendments to Certain Legislative Acts of Ukraine Concerning Recognition as a Stateless Person”, establishing a national statelessness determination procedure (SDP). The law entered into force on 18th July and requires the Government to adopt a by-law, which regulates the procedure on a more detailed level, by 18th October 2020.
This welcome development follows sustained advocacy by UNHCR in collaboration with the Right to Protection (R2P) and Desyate Kvitnya (The Tenth of April), also supported through various ENS projects in recent years, including on the protection of stateless people from arbitrary detention. It has been a longstanding effort, made possible through a sustained, strong partnership.
The Ukrainian SDP model
Ukraine now joins 11 other European states with SDPs established in law, which lead to protection for stateless people on their territory (Belgium, Bulgaria, France, Georgia, Hungary, Italy, Latvia, Moldova, Spain, Switzerland, and the UK). Seemingly, the new law provides for an SDP broadly in line with established international norms and good practice, although it will be necessary to see the exact content of the forthcoming by-law, and how the SDP is implemented in practice before this can be concluded definitively.
Importantly, the law brings the legal definition of statelessness in Ukraine in line with the international definition as provided by the 1954 Convention, which states that “A stateless person is a person who is not considered as a national by any State under the operation of its law”, instead of the previous definition “according to its legislation”. In line with UNHCR guidance, the new definition requires an analysis of how a State applies its nationality laws in an individual’s case in practice, therefore preventing the exclusion of individuals who may notionally have a right to Ukrainian or other nationality but, in practice, are unable to demonstrate that right or to access nationality.
The law also introduces the SDP by amending the Law “On Legal Status of Foreigners and Stateless Persons”. Positively, applicants are not required to be lawfully staying on the territory in order to access the procedure and ex officio submission of an application is possible. Applicants are allowed to submit the application in any language, but it must be in writing in person (oral submission is allowed for disabled and illiterate persons only). The burden of proof is explicitly shared between the applicant and the decision maker: on the one hand, the applicants must provide all necessary documentation they have; on the other, a competent State authority cannot refuse to recognise somebody as stateless solely on the basis of absence of proof. At the same time, the competent authorities are authorised to make queries and interview witnesses to confirm or deny the applicant’s statements. The law also establishes a timeframe to consider an application as well as an exhaustive list of grounds for refusal.
The applicant is entitled to free legal aid until a final decision is made, including during court proceedings where the applicant has appealed against a negative decision. Free interpreting should also be provided, including translation of the applicant’s documents, which is an unusual feature in Ukrainian administrative procedures. According to the law, the applicant should be provided with a certificate on application for recognition as a stateless person, confirming that they are lawfully temporarily staying in the territory of Ukraine. They should also be provided with minimum basic assistance during the procedure. Employment is only allowed with permission from an Employment Center, the applicant is not entitled to financial assistance and only has access to medical care in cases of emergency.
Finally, recognised stateless persons in Ukraine will receive a temporary residence permit and may apply for a permanent residence permit and immigration permit two years after recognition. After five years of continuous residence on the territory of Ukraine, stateless persons may apply to acquire Ukrainian nationality. Stateless persons with a temporary or permanent residence permit have the right to work without a special permit.
If the law is implemented properly, the SDP will enable thousands of stateless persons who have lived in Ukraine for many years to obtain an identity document and proof of their legal presence in Ukraine. This will enable them to have access to employment, medical care, social services and other rights guaranteed to all without exception by the Constitution of Ukraine.
Who needs an SDP in Ukraine?
Statelessness in Ukraine is primarily related to the consequences of the collapse of the USSR and the need to obtain citizenship of the USSR’s successor states. The vast majority of all those who applied to Right to Protection and Tenth of April for legal assistance were born in the countries of the former USSR. More than half of them were born on the territory of Ukraine or the Ukrainian SSR. Romani people in Ukraine also find themselves in a difficult situation, where their citizenship can be difficult to confirm due to a lack of their parents’ identity documents and an inability to prove contact with them. These technical barriers can be exacerbated by discrimination and antigypsyism.
Nearly 10% of people currently receiving legal assistance from Right to Protection and the Tenth of April, meet the criteria for the SDP and are waiting for a new procedure. However, it is impossible to estimate how many people in Ukraine will benefit from the new procedure as there are neither official statistics on the stateless population in Ukraine, nor figures on undocumented people or those facing difficulties obtaining identity documents. As of 2020, UNHCR estimates that there are more than 35,600 stateless people and people at risk of statelessness in Ukraine (only nearly five thousand of them in 2019 had a residence permit). According to the World Bank's Identification for Development (ID4D) 2018 Global Dataset, more than 1.2 million people were resident in Ukraine without personal documents.
What does this mean for Ukraine?
By 18th October, the Government must adopt a by-law, through which a procedure for applications for recognition as a stateless person must be approved, and other acts must be brought into compliance with the law. The State Migration Service of Ukraine has already conducted public consultations on the relevant draft by-law during August-September, and it may be considered by the Government soon. The SDP will most likely become operational towards the end of 2020 and beginning of 2021. UNHCR together with partners have submitted recommendations and comments to the draft by-law, and the new procedure will hopefully comply with existing international norms and good practices, including guidance from UNHCR (for example its good practice paper as featured in this recent blog) and the European Network on Statelessness (including the Statelessness Index and Good Practice Guide).
This will require properly informing the population about the procedure. In this regard, a good example can be drawn from the Kyrgyz Republic, whose efforts to eradicate statelessness on a national level inspire human rights defenders all over the world. Unfortunately, the law does not stipulate budget expenditures on the SDP’s implementation, meaning the procedure is going to be carried out by the existing staff and units of the State Migration Service of Ukraine. There are no financial resources for equipping or training mobile clinics to travel around the country identifying undocumented people and unregistered children.
Concerns therefore remain around ensuring awareness and accessibility of the new procedure but there may be ways to mitigate this. For example, the Action Plan for the National Human Rights Strategy envisaged two actions for completion in 2016: the establishment of measures for the identification of stateless persons in six regions of Ukraine; and an information campaign to encourage individuals to obtain identification documents. These measures were insufficient and impossible to achieve in 2016 because the SDP wasn’t in place, but with the adoption of the new law they could now be re-visited and implemented. The Action Plan was never financed by the State Budget, but many NGOs and international organisations, including R2P and Tenth of April, stand ready to support the Government in successfully implementing the new SDP and the new measures to protect stateless persons, including identifying and informing the stateless population about the new procedure.
The adoption of the SDP is a major step by Ukraine towards meeting its obligations to protect stateless people on its territory and reduce statelessness. Ultimately the proof will be in its implementation, but we are confident about the potential of the new SDP to radically improve the lives of stateless men, women and children in Ukraine.