Background Information on the Situation in Ukraine in the Context of the "Safe Third Country" Concept

1.         The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes the adoption between States of agreements aimed at identifying the country responsible for examining an asylum request, as they constitute the most satisfactory way to address the problem of "refugees in orbit." These agreements are normally based on the notion of safe or first, country of asylum, providing for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized. either within that country or by an act of refoulement.

2.         UNHCR further considers that, in the absence of any formal agreement to this effect, the return of a refugee or asylum seeker to a country where he/she found or could have sought protection should not take place unless certain conditions relating to the person's safety and treatment in that country are met. The Office has identified some factors that should be considered when determining whether the return of a refugee or an asylum seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are: ratification of and, more importantly, compliance with international human rights and refugee instruments, observance of basic recognized human rights standards for the treatment of asylum seekers and refugees, in particular the principle of non-refoulement; readiness to readmit returned asylum seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection.

3.         Ukraine has so far not acceded to any international refugee instrument. Ukraine is a State Party to the Convention on the Elimination of All Forms of Discrimination (7 March 1969), the International Covenant on Civil and Political Rights (12 November 1973), the International Covenant on Economic Social and Cultural Rights (12 November 1973), the Convention Against All Forms of Discrimination Against Women (12 March 1981), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (24 February 1987). Ukraine also acceded to the Convention on the Rights of the Child (28 August 1991). At the regional level, Ukraine signed the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms on 9 November 1995 (not yet ratified) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on 2 May 1996 (not yet ratified.) Under Article 9 of the Ukrainian Constitution adopted on 28 June 1996, international treaties ratified by Ukraine are part of the national legislation.

4.         Ukraine signed readmission agreements with the following European countries: The Slovak Republic, Poland and Hungary. These agreements foresee the readmission of three categories of persons: nationals; third country nationals and stateless persons lawfully staying on the territory of one State Party-, and third country nationals who illegally cross the common border. In practice, the number of persons which have so far been readmitted under the third category is very limited. Ukraine is willing to readmit a person only if clear proof is provided that the person in question has left Ukraine to another country. At international airports, for instance, the formal requirement consists of an "exit stamp" in the passport of the person to be returned, issued by the responsible border police officer. Other documents such as the plane ticket or the boarding card, are not considered sufficient. UNHCR is not aware of a single instance where an asylum seeker returned from a Western European country to Ukraine has had access upon return to the [Ukrainian refugee status determination procedure.

5.         Two special Decrees 1 provide for temporary legal stay of persons fleeing situations of armed conflict in Abkhazia (Georgia) and Chechnya (Russian Federation). The temporary right to stay is granted for a period of three months, renewable. The rights to work' to primary education and to health care are granted by the two Decrees.

6.         National refugee legislation is contained in the Law on Refugees no 3818 of 24 December 1993 which in many respects is not in line with international standards. For instance, refugee status is valid three months only, the Law does not contain any provisions securing the principle of family unit Art. 3 (4) of the Law is of particular concern. According to this provision, "refugee status may not be granted to a person who, before having arrived in Ukraine, stayed in a country where he/she could, in conformity with the established procedure, have been granted asylum or refugee status.» The indiscriminate use of the notion of first country of asylum has led to the exclusion from refugee status of a large number of persons in need of international protection. The safe third country regulation of Art. 3 (4) of the Law on Refugees, though presently not applied to Afghan asylum seekers who entered Ukraine via Russia before 1 January 1995, is frequently applied to persons who arrived in Ukraine after this date. For instance, the Kyiv Migration Service applies this rule to Iraqis having transited through Turkey.

UNHCR is also concerned that, in the Law on Refugees, the principle of non refoulement applies to recognized refugees only. The principle of non-refoulement is not reflected elsewhere in the Ukrainian legislation.

7.         According to Art. 6 of the Law on Refugees of 1993, first instance status determination procedures are conducted by the Migration Services of the 24 Regions of Ukraine, the Autonomous Republic of Crimea and the Cities of Kyiv and Sevastopol. The relevant departments were established in 1995, but their staffing is limited (from one to five staff members ) According to Art. 10 of the Law, an appeal against a negative first instance decision can be lodged with the Ministry of Migration within one week. In July 1996, the Ministry was dissolved and replaced by a State Committee on Nationalities and Migration. under the direct supervision of the Council of Ministers.

8.         According to Art. 9 of the Law on Refugees, registered asylum seekers have the right to reside temporarily on the Ukrainian territory They have the rights to work, to primary education and public health care, pending determination of their status by the competent authorities. In practice, however, the appeal procedure does not function properly and asylum seekers rejected in the first instance who lodge an appeal with the competent authorities normally lose their temporary residence permit as well as social rights during the appeal procedure.

9.         Due to scarcity of funds to develop the necessary infrastructure for the protection of refugees and asylum seekers. the implementation of the Law on Refugees only began in January 1996 and only partially.

10.        In January 1996, the Kyiv Migration Service received the first applications of Afghan asylum-seekers. As at July 1996, more than 400 cases were processed, and more than 200, primarily Afghan applicants, were granted refugee status and received a refugee card, in accordance with the 1993 Law. Since refugee cards have only recently been introduced, their holders face occasional difficulties as authorities are not always aware of the existence of such a document.

11.        Recently, refugee status determination interviews have also been conducted by the Migration Services of Dnipropetrovsk, Lugansk, Lviv, Odessa, Sevastopol and Simferopol. No reports concerning the implementation of the Law on Refugees have been received from the other regions. In view of the considerable number of cases (2-3000 Afghan cases alone) and the limited capacity of the Migration Services (even the Kyiv Migration Service is only able to receive and examine a limited number of formal applications each month), a transition period of at least several months is necessary. In this context, not each and every asylum seeker has access to a refugee status determination procedure, and is thus not necessarily protected against refoulement.

12.        When asylum seekers fail to have access to the refugee status determination procedure, they cannot legalize their stay and are treated as illegal migrants by the authorities. They are subjected to fines, detention, and harassment by the police. They have no right to work, no access to accommodation and health care. Recently, police checks have significantly increased and the standard fine for an illegal stay has been raised to approximately 5 USD, which is equivalent to one quarter of UNHCR's average monthly living allowance. UNHCR is aware of several cases, where asylum seekers, including families with children, were evicted from their apartments by the local police, and found themselves homeless due to lack of legal status.

UNHCR endeavours to limit these negative effects by running a small assistance program which includes an agreement with a hospital on basic medical care for asylum seekers and the granting of a small lump sum living allowance (10 to 25 USD monthly) to the most destitute asylum seekers. However, no effective protection can be offered by UNHCR against evictions of asylum seekers from apartments and their detention and harassment by the police.

13.        UNHCR has no presence at international airports, which makes monitoring extremely difficult. Whenever aware of the presence of asylum seekers at an airport, UNHCR intervenes, successfully in most cases, for their access to the status determination procedure. UNHCR is, however, aware of some cases who have been returned to countries where no guarantees against refoulement exist. Instances of direct refoulement, including at land borders are exceptional owing to the fact that the authorities are practically not in a position to implement such procedures.

14.        Recognized refugees are issued a refugee card which serves as an identity paper and indicates that the holder enjoys the rights recognized under the Law on Refugees. The granting of social benefits is, however, still hampered by the many financial constraints faced by the Ukrainian Government In this context, UNHCR assists by granting a small lump-sum integration grant of approximately 100 USD per family to refugees recognized by the authorities.

15.        The refugee card has a legal validity of only three months, but according to the present practice of the Kiev Migration Department, it is automatically renewed for an additional period of three months if the holder of the card is not involved in criminal activities, and if the situation in the country of origin remains unchanged. The short duration of the card is not conducive to integration. Furthermore, each prolongation requires the payment of a fee of 2,100,000 KBZ (approximately 11 USD), which puts a heavy financial burden on refugees.

16.        The refugee card is also the basis for the granting of a residence permit by the local authorities. However, in practice the cards are not always recognized as valid documents by the local police. The document is not a travel document. The certificate does not, therefore, document the preparedness of Ukraine to read nit its holders, in case of irregular movement to a third country.

17.        Since the beginning of 1996, the Ukrainian Government has taken significant steps in developing institutions and structures to protect refugees in Ukraine. UNHCR is committed to increase its support in this capacity-building process. In view of the fundamental change in the social and legal system of Ukraine, the implementation of the rule of law in general and of effective legal mechanisms to protect refugees in full compliance with international standards, in particular, is an ongoing process which cannot be achieved in a short-term period. With respect to the return of asylum seekers and refugees to Ukraine, on the basis of their transit or stay there, and in view of the above, UNHCR advises, in principle, not to apply the safe third country notion to asylum seekers and refugees who have stayed in or transited through Ukraine. In case return to Ukraine is contemplated, UNHCR recommends bilateral readmission negotiations to obtain from the Ukrainian authorities formal assurances that they agree to readmit the person(s) in question, consider their asylum claim(s) and provide effective protection when needed- In the absence of such assurances from the competent Ukrainian authorities, the Office would, at present, advise against the return of asylum seekers and refugees to Ukraine on the basis of their transit or stay there.

UNHCR, Geneva, October 1996