Comments from Project “No borders” Centre “Social Action” to decree made by Supreme Council as to the Law “About refugees and persons who need subsidiary or temporary protection” (July 8, 2011)

June 13, 2011

Project “No borders” greets decision of Supreme Council to adopt in the second reading the Law “About refugees and persons who need subsidiary or temporary protection”. This Law is indisputably expected long ago and is necessary for improving the protection of rights of refugees and asylum seekers.

New law unlike the previous one “About refugees” from 2005 determines the order of regulation of social relations not only in the sphere of person’s recognition as a refugee as well as a person who needs subsidiary or temporary protection, lose or deprivation of this status and also establishment of legal status of refugees and persons who need subsidiary protection and who are granted with temporary protection in Ukraine.

Document specifies in particular that “person who need subsidiary protection” – is a person who is not a refugee according to Convention about refugee status of 1951 and Protocol on refugee status 1967 and this Law, but he/she needs protection as he/she was forced to arrive to Ukraine or stay in Ukraine in consequence of threat to his/her life, security or freedom in the country of origin because of fear of applying to him/her death penalty or tortures, inhuman or such treatment which humbles dignity, treatment or punishment” and “persons who need temporary protection are foreigners and persons without citizenship, who permanently live on the territory of our country having joint border with Ukraine, who were forced massively to look for the protection in Ukraine because of external aggression, foreign occupation, civil war, conflicts based on ethnic grounds, natural or technological disasters or other events that break civil order in a certain part or at all territory of the country of origin”. The very addition to the list of persons who need subsidiary or temporary protection” is the principle positive achievement of new Law. Besides, the important thing is introduction of single identification document for the applicants during the whole procedure that will guarantee the documentation of persons or it will reduce bureaucracy.

Unfortunately, these regulations provoke cautions and can be used not for benefit of refugees and asylum seekers. Namely:

  • Not inclusion to Law  principles on use of possible doubts in the case in favour of the applicant (benefit of the doubt);
  • Concession of temporary protection only to those persons who massively come from the countries that do not have joint border withUkraine;
  • Unfortunately, Article 3 of Law forbids to extradite or compulsory return refugees or persons who need subsidiary or temporary protection in cases when their life is threatened with danger. The law does not recall about impossibility to extradite persons before the end of the procedure on his/her recognition as a refugee or person who needs subsidiary or temporary protection. Also neither this Article nor other regulations of the Law do not forbid to keep refugees or person who need subsidiary or temporary protection under arrest during the conducting of extradition control and do not propose alternative preventive measure to keeping under arrest;
  • Determination of limited term in 5 working days during which a person should apply to bodies of State Migration Service with request to grant him/her refugee status or temporary or subsidiary protection for five working days;
  • Possibility to hand over application on refugee status granting or subsidiary protection only through the bodies of SBS, impossibility of passing such applications by the workers of MOI or staff of pre-trial prison;
  • Absence of vested rights in the Law for the applicants to claim for conducting interview or rendering service of translation by the person of the same Article as the applicant on religious or other considerations;
  • Obligatory dactyloscopy of the applicant (without warning by what means, in which data bases the fingerprints will be kept and which service will have access to them and in absence of adequate legislative regulation to save confidentiality of personal data in Ukraine);
  • Undetermined order of SSU controls of conditions due to which refugee status cannot be granted, and unclear formulating of procedure on person’s deprivation of refugee status or temporary protection at presentation of SSU or other body of state power ofUkrainewithout indication of reasons for such a presentation that leaves possibility to apply double standards and corruption.

Project “No borders” expresses hope that other important problems for valuable protection of rights of refugees and asylum seekers such as order of employment, rendering medical and social aid, granting pensions and other social payments that are recalled in the text of the Law and referred to competence of Cabinet of Ministers and other central bodies of executive power in Ukraine will be soon included to corresponding laws and will work in favour of refugees and asylum seekers.

You can get acquaintance with the text of the bill at the website of Supreme Council of Ukraine; the bill is registered at №7252.