“I am not a criminal. I am an educated person, I must have more rights. This detention looks like criminal detention but I am not a criminal”.
This are the words of Sahill Abdulla from Afghanistan, who’s currently in immigration detention for the second time. He was interviewed along with other stateless persons in the course of our research for the new report “Protecting stateless persons from arbitrary detention in Ukraine” published by the European Network on Statelessness and its Ukrainian member, The Right to Protection NGO in partnership with HIAS.
The report reveals that prevention of arbitrary detention of stateless persons in Ukraine requires various interrelated overhauls to the system and how it is implemented, regarding recognition of the status of a stateless person, issuance of return and removal decisions and imposition of immigration detention. The report puts forward a list of concrete recommendations for improvement.
How many stateless persons are there in Ukraine?
Absence of reliable statistics on statelessness in Ukraine is a key issue of concern. According to a 2001 census, Ukraine had 48 million permanent residents at the time, of which around 11% had been born outside Ukraine’s modern-day borders. 82,550 persons declared to be stateless, and a further 40,364 persons did not state their citizenship. In 2015, UNHCR’s estimate on the number of stateless persons in Ukraine was anywhere from 35,000 to 45,877. However, according to the State Migration Service of Ukraine, approximately 6,000 stateless persons had regular or temporary residence permits in Ukraine as of 2016. The state has no information on the number of undocumented stateless persons in the country. These discrepancies and gaps clearly demonstrate lack of credible data regarding the scale of statelessness in the country.
Stateless people and immigration detention
Research reveals that there were some positive provisions introduced on immigration detention procedures concerning foreign nationals and stateless persons: mandatory presence of a stateless person at a first instance court hearing on deportation/detention in all cases; exemption of plaintiffs from paying court fees for the appeal against their deportation in all instances. Recently (as of June 2016) two alternatives to immigration detention were introduced and the administrative court may take one of the following decisions when deciding to detain:
- to provide bail for the person to a company, institution or organisation;
- to oblige a foreigner or a stateless person to deposit surety bail;
to apprehend and detain the foreigner or stateless person.
However the same law reform increased the maximum time limit for immigration detention to 18 months. Previously, it was 12 months (and before May 2011 six months). This is an alarming trend. The maximum term of detention was introduced along with the procedure of periodical judicial control of the lawfulness of detention: prolongation of detention needs to be sanctioned by a court every 3 months after the initial 6 month period. These amendments were introduced in line with the Return Directive (which is not legally binding on Ukraine) due to state aspirations to bring its law in line with EU standards, which is a key element of cooperation between Ukraine and the EU.
At the same time the research identified room for improvement of the legal framework and the operation of the relevant law and practice of it’s implementation in Ukraine.
It is worth to notice that two core international instruments: 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness were ratified and became legally binding for Ukraine in 2013. However, after the ratification there were no practical measures to implement commitments undertaken by the state to determine statelessness, provide stateless persons with respective scope of rights and prevent the cases of statelessness. Currently the legislation is still not harmonized according to the provisions of 1954 and 1961 Conventions.
The long-awaited draft law to introduce a statelessness determination procedure
Back in December 2015 the State Migration Service of Ukraine developed a draft law that aims to introduce a statelessness determination procedure. During the public discussion, the positive provisions of the draf twere noted (the right of any person, regardless of legality of stay, to access the procedure, the right to access statelessness determination for children; the six month timeframe for a final decision on the application, etc.). But despite such positive features, the draft needs improvements in the following areas:
- amending the definition of a ‘stateless person’ to bring it in line with the international law definition of Article 1 of the 1954 Convention;
- eliminating the requirement that those who have been recognised as stateless under the statelessness determination procedure, still need to show a valid passport to receive a residence permit;
- reducing the burden of proof on the applicant;
- providing temporary documentation and status until a final decision on application is made; and
- clearly defining the form in which the application should be filed (written, oral, etc.).
The research findings will be presented on 21 December 2016 at the National Ombudsman’s Office in Kyiv. A separate session at the event will be dedicated to the draft law #5385 which is going to introduce a statelessness determination procedure.