Ukraine

Ukraine is party to almost all relevant international and regional instruments, including three of the core statelessness conventions. However, there are gaps in protection and efforts to prevent and reduce statelessness. Data on the stateless population is limited by discrepancies, overlapping categories, and the ongoing territorial dispute. Ukrainian law does provide for a stateless status with a right to residence, work, social security, housing, education, and healthcare. But the Ukrainian definition of a stateless person is narrower than the 1954 Convention, and there is no dedicated procedure to identify and determine statelessness, despite a pledge made in 2011 to introduce one. Administrative procedures are weak and legislation inconsistent, making it difficult for people to claim stateless status and documentation.

The legal framework on detention is also weak with limited protection against arbitrary detention, although alternatives to detention and periodic reviews were introduced in law in 2016. People released from detention have some protection from re-detention as well as a route to legal residence. Legal safeguards are in place to prevent statelessness in the case of foundlings, adopted children, and those born to Ukrainian nationals abroad, but there is a legal residence requirement for children born stateless in the country to acquire nationality. This gap, along with barriers to birth registration, which was the subject of a second-cycle Universal Periodic Review recommendation, hinders efforts to reduce the large in-situ stateless population in Ukraine, disproportionately made up of ethnic minorities, including Roma.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Ukraine has a good record on accession to relevant international and regional treaties. It is state party to most of the core statelessness conventions, except for the Convention on the Avoidance of Statelessness in Relation to State Succession. Ukraine is party to all other relevant human rights instruments with no reservations.

  • Ukraine is state party to the 1954 Convention with no reservations and with direct effect.
  • Ukraine is state party to the 1961 Convention with no reservations and with direct effect.
  • Ukraine is state party to the European Convention on Nationality with reservations (no significant impact on statelessness), and has signed but not acceded to the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • Ukraine is not bound by the EU Returns Directive as it is not a member state of the European Union.
  • Ukraine is state party to all other relevant international and regional treaties with no reservations.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

Data on the stateless population in Ukraine is limited and contested. There is a ‘stateless’ category in the census, but there are also other potentially overlapping categories and the data is now outdated as the last census was carried out in 2001. UNHCR, NGOs and the Ukrainian Ombudsperson report different figures and no data is available for the territory not controlled by the Ukrainian Government. Detention data is not published, though the authorities do collect some information on the nationalities of detainees, including stateless detainees. A study on statelessness in Ukraine was published in 2014 by UNHCR and a national NGO. 

  • Ukraine has a 'stateless' category in its census and the data is disaggregated, but there are also potentially overlapping categories such as ‘persons who did not identify their nationality'. The census was last carried out in 2001, so the data is now outdated. 82,550 people identified themselves as ‘stateless’ and 40,464 ‘did not identify their nationality’ in the 2001 census.
  • Other sources of data or information about statelessness include UNHCR, NGOs and the Ombudsperson of Ukraine on Human Rights, but NGOs have raised concerns about the lack of reliable data on statelessness in Ukraine. For instance, the Ombudsperson reported in 2017 that the State Migration Service of Ukraine recorded 6,500 people officially registered as stateless in Ukraine. UNHCR estimated the stateless population in Ukraine to be 35,363 people in 2016, based on data from government sources, UNHCR field offices and NGOs. 
  • Other government statistics are not disaggregated and do not distinguish stateless people from other non-nationals.
  • A study of statelessness in Ukraine was published by UNHCR and national NGO, HIAS, in 2014.
  • There is no available data on stateless refugees and asylum seekers in Ukraine. The availability of data is limited by the political situation, with no data available for the territory not currently controlled by the Ukrainian Government.
  • Ukraine does not publish data on stateless people in detention though it does collect some information about detainees and their nationalities, which includes some individuals recorded as ‘stateless’ and nationalities where there may be populations at risk of statelessness.
  • Some data was provided to NGOs following a request made to the State Migration Service of Ukraine. In 2016, 645 ‘foreigners and stateless persons’ were held in immigration detention in Ukraine. In 2015, two court decisions relating to stateless people resulted in detention; in 2014 one court decision to detain each related to a ‘stateless person’ and a ‘Palestinian’.
  • The Ukrainian Government does not report on the numbers of people released from detention, but NGOs report that from 2011-15, 436 people were released from detention at the end of the maximum time limit because they could not be deported.

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

Ukrainian law provides for a stateless status, but, despite a pledge made in 2011 to introduce a procedure, there is no clear mechanism for identifying or determining statelessness, so it falls within Group 3. The Ukrainian definition of a stateless person is narrower than the 1954 Convention, and administrative procedures are weak, making it difficult for people to claim stateless status in practice. Those who do manage to clarify their legal status are granted residence rights, the right to work, education, social security, housing and healthcare, but there are limitations to rights. Those who remain undocumented, have the right only to primary education and emergency healthcare.

  • Ukrainian law provides for a stateless status, but it does not prescribe any significant differences in the legal status of ‘foreigners’ and ‘stateless people’ with legal residence.
  • There is no statelessness determination procedure nor other mechanism established in law for identifying statelessness, despite a pledge the government made at a High-Level UN event in 2011 to introduce one.
  • There is a definition of a 'stateless person' in Ukrainian law that is similar to the 1954 Convention, however, it defines a ‘stateless person’ as someone not considered a citizen of any state ‘in accordance with its laws’ rather than ‘under the operation of its law’, which is narrower than the 1954 Convention definition.
  • Ukraine has a dedicated stateless status but no formal mechanism to identify or determine this. Administrative procedures are weak, and legislation is inconsistent, making it difficult for people to claim stateless status and documentation. The Law on the Legal Status of Foreigners and Stateless Persons sets out the basic legal status of a stateless person, but the Constitution and other legislation allows for restrictions of rights of stateless people.
  • If a stateless person has their legal status clarified, and is granted residence rights and documentation, they have the right to work (but need a work permit); to social security (but depends on insurance); to housing (but limited property rights); to education (but barriers to higher education); and to healthcare.
  • Stateless people who are undocumented and do not have legal grounds for residence and documentation do not have the right to work or social security; and they have the right to primary education and emergency healthcare only.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

There are significant gaps in the legal framework on immigration detention in Ukraine. Despite reforms in 2016, the authorities are still permitted to detain people without a court order. A proposed country of removal does not need to be identified prior to detention, statelessness is not considered juridically relevant, the law does not stipulate that detention is a last resort, and the two available alternatives are rarely used. There is a maximum time limit on detention, and written information on rights is provided to detainees. There is free legal aid and some remedies for challenging detention, but there are barriers to accessing these. Some protections are provided on release and there is a route to temporary residence, but re-detention is a risk and socio-economic rights are limited.

  • Immigration detention powers are provided for in law, but the grounds for detention go beyond the purposes allowed under ECHR Article 5(1)(f). A person who has entered the country without legal grounds for residence can be placed in immigration detention before a deportation or extradition decision has been taken. Despite reform in June 2016 intended to permit detention only following a court order, the legislation still contains provisions allowing the State Migration Service and State Border Guard Service to detain people without a court order.
  • A proposed country of removal does not need to be identified prior to detention for removal.
  • Statelessness is not considered a juridically relevant fact in decisions to detain and stateless people are detained in practice.
  • The law does not provide for detention to be a last resort and the two existing alternatives to detention are hardly used.
  • There is no vulnerability assessment, although refugees and people with subsidiary protection should not be detained. Nevertheless, statelessness is not considered as giving rise to vulnerability and asylum seekers can be held in detention if they submitted their claim for international protection after the detention order was imposed.
  • There are no measures in place to protect stateless people with a criminal conviction from arbitrary detention.
  • There are two alternatives to detention in Ukraine - bail or a surety deposit – but these are not subject to periodic review and time limits depend on the length of removal proceedings.
  • Detention is used prior to alternatives being considered and is the most widespread measure, even though the law prescribes that the decision to detain must comply with the principles of necessity, reasonableness and proportionality.
  • There is a maximum period of detention set in law of 18 months.
  • The law provides that individuals are informed of the reasons for detention in writing prior to being detained, and detainees are provided with information on their rights and duties in a language they can understand, with interpreters if needed.
  • There is no statelessness determination procedure (SDP), so detainees do not have access to a procedure to determine their statelessness.
  • There are periodic reviews of the necessity for the continuation of detention before a court. To extend detention beyond an initial six months, the detaining authority must file an administrative request at least five days before expiry of the first six months. The authority can then file for extension every three months. Detention can be extended if there is a lack of information from the country of citizenship or lack of identity documents. This puts stateless people at a disadvantage in practice and results in them often being detained for the maximum of 18 months.
  • A detainee can appeal against the court judgement of first instance and to the court of cassation against the judgment of the appeal court. A detainee can also challenge the extension of their detention. However, there are obstacles such as time limits - the appeal must be lodged within five days, which is difficult in immigration detention and due to poor access to free legal aid.
  • Free legal aid is available to challenge detention, however, undocumented stateless people have limited access since legal aid centres demand documents proving statelessness. Furthermore, state legal aid centres did not have a budget for work with stateless people until July 2016.
  • There are no clear rules governing the process of re-documentation or ascertaining nationality.
  • People released from detention are issued with a certificate of immigration detention, and are entitled to apply for a temporary residence permit. However, there are barriers to exercising this right, as one of the conditions is compulsory registration of place of residence, which is difficult for released detainees. The applicant must also have been detained for the maximum period to acquire a temporary residence permit.
  • A temporary residence permit provides protection from re-detention for a year, but the grounds for extension of residence must be reconsidered after that, which can create a risk of re-detention.
  • People released from detention have limited access to socio-economic rights. Even people with a temporary residence permit are not allowed to work or study.
  • No legislative provision exists for re-detention, so there is no rule in Ukrainian legislation on whether cumulative time spent in detention counts towards the maximum time limit.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

There are legal safeguards in Ukrainian nationality law to prevent statelessness in the case of foundlings, adopted children and children born to Ukrainian nationals abroad. However, the safeguard for children born in Ukraine who would otherwise be stateless only applies if parents are legally resident in the country, leaving a real risk that children are born stateless in the country. There are also significant barriers to universal birth registration, with at least one parent being required to present proof of identity and legal residence to register a birth. Additional evidence is required for late birth registration, including a passport to register those over 16 years-old, which is impossible to acquire without a birth certificate. These barriers to birth registration were the subject of a recommendation to Ukraine under the Universal Periodic Review and hinder efforts to reduce the large in-situ stateless population in Ukraine, which is disproportionately made up of ethnic minorities, including Roma. 

  • There are provisions in law to automatically grant Ukrainian nationality to some children who would otherwise be stateless, but eligibility is dependent on the status of the parents, so there is no full safeguard against children being born stateless on the territory. In practice, children must request a certificate of affiliation of citizenship from the authorities.
  • If parents are legal residents there is no requirement for the child to have legal residence to acquire nationality.
  • There are no age limits for the application in law, but in practice, it is more difficult after 18 years-old (age at which a person can apply to state authorities without a mandatory legal representative), as the authorities may question a young person’s residence in Ukraine if they do not have the required identity documentation.
  • There is a specific provision for children of parents granted international protection in Ukraine to acquire nationality.
  • Foundlings acquire nationality automatically at birth. It is necessary to register the fact of accessing nationality by applying to the authorities for this to be added to the birth certificate.
  • Ukrainian legislation refers to a 'newborn' but there is no definition of what this means in practice. Citizenship cannot be withdrawn from foundlings if it would result in statelessness.
  • Although there is no explicit provision to prevent statelessness in the case of a Ukrainian child adopted by foreign nationals, there is also no provision in Ukrainian law for a child to lose their nationality, so a child adopted by foreign nationals would not lose their Ukrainian nationality.
  • There is a provision in law for a foreign child adopted by Ukrainian parents to acquire nationality.
  • There is a provision in law for a child born abroad to at least one Ukrainian parent to acquire Ukrainian nationality automatically at birth.
  • There are no discriminatory conditions related to this provision.
  • The law provides that children should be registered within a month of birth, but documents proving the identity and legal residence of at least one parent are required to complete the registration.
  • There are credible reports (for example, from UNHCR) of ‘legal orphans’ in Ukraine, or the children of undocumented parents whose details cannot be registered on their birth certificates.  There are also problems with the registration of children born in prisons.
  • There are no mandatory reporting requirements on the authorities.
  • There are credible reports that ethnic minorities, including Roma, are disproportionately impacted by barriers to birth registration. Ensuring universal access to birth registration for all children born in Ukraine, including ethnic minorities, was the subject of a recommendation Ukraine received and accepted under the second cylce of the Universal Periodic Review. 
  • Late birth registration is possible, but parents must either indicate a valid reason for missing the one-month deadline or pay a fine (17-52 UAH or 0.5-1.60 EUR). If the birth is registered more than one year after birth and before the child is 16 years-old, additional documents are required. If the registration takes place more than 16 years after birth a passport is required, but it is almost impossible to acquire a passport without a birth certificate.
  • There is no evidence of any government campaigns to promote birth registration.
  • There are credible reports of sections of the community facing a high risk of births not being registered, including the Roma community; homeless persons; children born in detention or prisons; children born in the temporarily occupied or uncontrolled territories.

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