On September 2, 2020, the Verkhovna Rada adopted the draft Law on Administrative Procedure № 3475 dated 14.05.2020 in the first reading.  The Right to Protection CF considers it appropriate to provide the Committee with its analysis of the draft law and recommendations on the preparation of the draft for the second reading.

General caveats

Right to Protection CF considers that some of the project proposals are appropriate and can improve the realization of the rights and legitimate interests of individuals and legal entities in relations with the state. Such proposals should include the consolidation of the presumption of legality of actions and requirements of the person in Art. 15 of the draft, the obligation of the administrative body to collect evidence independently and not to transfer this obligation to the applicant in Art. 16 of the draft, detailing the requirements for the administrative act in Art.  67 of the draft, fixing the possibility to declare an administrative act invalid in Art. 85, etc.

In general, the creation of a unified procedure for consideration of appeals and decision-making on them can guarantee the possibility of personal protection of their rights and their timely implementation. However, the Right to Protection CF agrees with the position of the Main Scientific and Expert Department and believes that if the draft is adopted as a law, there may be negative consequences for a large number of existing procedures and administrative services that cannot be implemented within the general administrative procedure.

Risks to the procedure for processing an application for recognition as a refugee or as a person in need of complementary protection

1. The current legal framework, including a number of international treaties, enshrines the special vulnerability of this category of foreigners and stateless persons as asylum seekers, in particular, due to forced relocation, difficulty to obtain the documents proving their identity, low level of education, lack of sufficient funds to ensure a decent standard of living, experience of physical and psychological suffering, lack of language knowledge of the country, where they apply for protection.

Therefore, in order to ensure the rights of these persons and to prevent discrimination, the legislation establishes certain guarantees that are used by asylum seekers during administrative proceedings.  Among the most important guarantees of access to international protection, enshrined in current legislation, are:

• the procedure for submitting an application by a person who is illiterate or has physical disabilities;
• the right to submit an application and documents substantiating the need for protection, in the native language and the obligation of the State Migration Service of Ukraine (SMSU) and other state bodies to provide an interpreter;
• the procedure for submitting an application by a person who has illegally crossed the state border of Ukraine;
• the procedure for action of the SMSU and other state bodies in the case of applying for protection of a child separated from his family;
• the right to submit an application by a person who does not have identity documents or such documents are false, and the procedure for further consideration of such an application;
• an exhaustive list of grounds for deciding to refuse to accept an application for recognition as a refugee or a person in need of complementary protection, etc.

However, the draft Law does not take into account the special vulnerability of asylum seekers. Thus, Article 7 of the draft stipulates that foreigners and stateless persons use guarantees during administrative proceedings, but these guarantees are not enshrined and listed separately, which indicates their declarative nature.

2. The draft significantly expands the range of opportunities for a person to protect their rights during administrative proceedings, in particular, the right to submit petitions, an exhaustive list of which is directly enshrined in the draft, access to case materials, the right to submit explanations and comments, the right to be heard by the administrative body before decision in the case is taken, the right to initiate and participate in hearings in the case, etc., but due to the special vulnerability of asylum seekers for most of them the realization of these rights is not possible without representation.

At the same time, it should be noted that the draft does not provide the amendments to the Law of Ukraine “On Free Legal Aid”, and under current regulation access to legal aid for asylum seekers is complicated: 1) the range of asylum seekers entitled to such assistance is  significantly narrowed;  2) a clear procedure and procedure for attracting or appointing a lawyer from the free legal aid center are not defined;  3) the obligation of the bodies of the State Migration Service of Ukraine (SMSU) to inform the relevant center for the provision of free legal aid about the need for such assistance to asylum seekers is not provided;  4) the term for consideration of an application for the provision of free legal aid is twice as long as the term for appealing against decisions of the SMSU, etc.

Therefore, in case of adoption of the draft Law as is without any required amendments, applicants for protection will be deprived of the opportunity to exercise their rights during the administrative proceedings.

3. One of the guarantees of access to international protection, as mentioned above, is to enshrine in law an exhaustive list of grounds for a decision to refuse to accept an application for recognition as a refugee or a person in need of complementary protection.  In contrast, according to the draft, the possibilities of the administrative body to refuse to consider the application are significantly expanded.  For example, Article 42 provides for a list of applications that are not subject to review, and Article 40 provides for the application to be left without motion or withdrawn from review. This may limit access of asylum seekers to international protection, thus violating Ukraine’s international obligations.

 4. The particular vulnerability of asylum seekers requires a special approach to the proof and evaluation of the application for protection.  This approach is explained in p.  196, 197 Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.  Instead, the requirements for evidence and proof set out in the draft do not take into account these recommendations, which may lead to a violation of the rights of asylum seekers.

Risks to the procedure for processing of an application for recognition as a stateless person

The Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” stipulates that the procedure for consideration of applications for recognition as a stateless person shall be established by the Cabinet of Ministers of Ukraine (within three months from the date Law enters into the force). The draft contradicts this provision of the Law, as it tries to regulate in particular the procedure for consideration of applications for recognition as a stateless person, without specifying this procedure in the list of exceptions from the scope of the draft. Instead, a significant number of project provisions are inconsistent with the procedure for recognition as a stateless person, some directly contradicting it.

1. Part three of Article 19 of the draft Law requires the applicant to translate documents provided in a foreign language, contrary to Article 6-1 of this Law, which obliges the state body to translate documents provided by the applicant when applying for recognition as stateless person.

2. Although Article 36 of the draft provides a form of application, which includes oral (including submitted in a personal application, which is added to the case file via transcribing it by an official), does not take into account the possibility of application by an illiterate person or person with disabilities. Instead, the second paragraph of the first part of Article 6-1 of this Law indicates the procedure for filing an application by such a person. In addition, as our practice shows, among undocumented persons with uncertain citizenship who meet the criteria for determining as stateless, there are often illiterate people who have not received an education.

3. This Law stipulates that if a stateless person has no documents that are required by Law, after his / her written consent was received, relatives, neighbors or other persons (at least three) will be interviewed to confirm the fact of statelessness (paragraph three of the first part of Article 6-1 of the draft Law). The draft provides the status of “case review facilitators” to the aforementioned people, but it cannot be taken into account that the interview is conducted only with the written consent of the applicant. In addition, the Cabinet of Ministers of Ukraine will establish the procedure of interviewing persons during the consideration of an application for recognition as a stateless person.

4. Article 33 of the draft provides the possibility of initiating proceedings by an administrative body, which has the potential to yield a positive impact on the process of identifying undocumented stateless persons. However, consideration of the application for recognition as stateless is not provided by the above-mentioned law in any other way than through the application of the person.

5. The procedure for suspension and resumption of administrative proceedings provided in Article 60 of the draft is also not consistent with the procedure for recognition as a stateless person, defined by Law.  The draft introduces the possibility to suspend the consideration of the application at the request of the applicant, instead it is not able to take into account the procedure for termination and resumption of the application for recognition as stateless person (in particular at the time of consideration of the application for protection in Ukraine, as in the second article 6-1 of the said Law).

6. The administrative appeal introduced in the draft (Articles 74-81) will not be available to the applicant for recognition as stateless person, as the draft Law provides only the possibility of judicial appeal. The extension of the application certificate for recognition as a stateless person is provided only for the time of the court appeal.

Summary and recommendations

Thus, the special vulnerability of asylum seekers and persons applying for recognition as stateless is not taken into account in the process of administrative proceedings in the draft Law. There are no separate guarantees for these categories. In the process of exercising the rights during the administrative proceedings proposed in the draft, both asylum seekers and stateless persons will obviously face significant difficulties. In fact, rights will remain declarative for them.

Based on the above, we recommend to add paragraphs 6 and 7 of the following content to the part 2 of Article 1 of the draft law:

6) submission and consideration of an application for recognition as a refugee or a person in need of complementary protection, decision-making on this application and its appeal, adoption and appeal of a decision on loss and deprivation of refugee status and additional protection and cancellation of a decision on recognition as a refugee or a person needs additional protection;

 7) consideration of the application for recognition as a stateless person in accordance with the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Recognition as a Stateless Person”.