07-04-2011
Changes in migration legislation of Ukraine cause a risk of the majority of abuse and violation of human rights and gives hope for positive development of one important constitutional notion.
On April 5, 2011 Supreme Council of Ukraine decreed Law “About insertion of changes into some legislation acts of Ukraine on migration issues” taking into account proposals of the President of Ukraine. Changes were emended to Law of Ukraine “About legal status of the foreigners and persons without citizenship”, Criminal Code of Ukraine and Code of Ukraine about administrative delinquencies.
The official website of Supreme Council positions these changes as “forming proper legal principles on fight strengthening against illegal migration, improvement of migration processes management, intensification of juristic responsibility for delinquencies in this sphere, ensuring with conditions for realization of migrants’ rights and equitable conditions of cross trips of citizens of Ukraine and other states, activization of bilateral contacts in all spheres of international relations, intensification of juridical responsibilities of foreigners as well as of the Ukrainian citizens for violation of migration legislation”. http://portal.rada.gov.ua/rada/control/uk/publish/article/news_left?art_id=250487&cat_id=37486 )
However, the majority of changes first of all concern the responsibility extension of the foreigners for the breach of the rules on stay in the territory of Ukraine. Thus, law foresees the increase in the number of grounds for banishment of the foreigners, growth in the size of the fines for the violation of the term of registration and enlargement of the term on ban as to repeated entrance the territory of Ukraine – from five to ten years. Tougher punishments are foreseen for organization or realization of illegal smuggling of the persons through the state border f Ukraine.
Some especially important moments of the Law should be singled out of negative and positive character as well. Article 31 lists the basis in accordance with which the term of foreigner’s stay in Ukraine can be shortened, the list was substantially enlarged as compared to a previous editing of the Law, besides other things the following formulating of one of the grounds was added: “if his/her activity on the territory of Ukraine can negatively influence upon the relations of Ukraine with other country”. However, explanation of what is borne in mind and how it will be established by the authorized bodies of power is absent in the Law, which, on the opinion of Project “No borders” can become a ground for violation of the foreigners’ rights.
Though, besides this fact, there is Article 32 in the text of the Law – “Prohibition on expel and other forms of forced return” which says about “the foreigner or person without citizenship cannot be expelled or in another way be compulsorily returned to countries where he can experience tortures, violence, inhuman or other types of treatment and punishment that demean dignity, or according to which he/she can be deported or returned to the countries in a forced way where his/her life is threatened with danger. In this case foreigner or person without citizenship is given asylum on the territory of Ukraine by the decision of the President of Ukraine”. Moreover, there are specified grounds for ban on compulsory exclusion in the accepted changes that is very important for ensuring with keeping the rights of the foreigner in Ukraine, – they are the first legislation initiative except the Article 26 of Constitution that sets up possibilities to grant asylum on the territory of the country. As Law of Ukraine “About refugees” foresees only granting of refugee status and does not contain any determination of the procedure on asylum granting, while these forms of protection of asylum seekers complement one another in the legislation practice of many countries.
Project “No borders” undoubtedly greets development of the legislation in the field of migration in Ukraine. However, we are troubled by prohibitive character of the present Law. On our opinion, development of migration legislation and elaboration of weighed and efficient migration policy in Ukraine is rather important. But these processes should not bear only prohibitive and punitive character. Attention should be paid to practical implementation of all regulations of the legislation and provide everybody with equality before the law as well as to guarantee foreigners to keep human rights.
Project “No borders” welcomes introduction of the notion “asylum granting” in migration legislation and expresses hopes that this part of the Law will be practical in use. As some asylum seekers – clients of the project are now deprived of freedom just waiting to be extradited in a forced way to the countries where they are threatened with tortures, cruel, inhuman or other types of treatment demeaning dignity, treatment. We have confidence that when the present Law comes into force our clients will have an opportunity to address to the President of Ukraine with appeal to be granted asylum and their cases will be thoroughly and fairly considered.