Recognition of the inaction of the Government of Ukraine in not bringing the subordinate regulatory legal act into compliance with the Law in connection with the introduction of the statelessness determination procedure. The Court held that the Government is obliged to bring the procedure for issuing a temporary residence permit into compliance with the law regulating the statelessness determination procedure.
- Resolution of the Cabinet of Ministers of Ukraine dated 25 April 2018 No. 322
- Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” dated 22 September 2011 No. 3773-VI
- Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Recognition as a Stateless Person” dated 16 June 2020 No. 693-IX
Justifying the claim, the complainant noted that the State Migration Service of Ukraine recognised him as a stateless person in accordance with Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”. After receiving this decision, he applied for a temporary residence permit in Ukraine, but was refused on the basis of subparagraph 2 of paragraph 61 of the Procedure for issuing a temporary residence permit.
The refusal was justified by the presence of an unexecuted decision on his forced return to his country of origin, adopted on 15 January 2021. The plaintiff argued that the norm of subparagraph 2 of paragraph 61 of the Procedure does not take into account the amendments made to the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” on 16 June 2020, which introduced a statelessness determination procedure. These amendments provided for the creation of an opportunity to obtain the legal status of a stateless person and a document for persons who have been residing in the territory of Ukraine for a long time without identity documents. In the context of the above, the plaintiff notes that he is an undocumented person, and explains that precisely because of this he is deprived of the opportunity to execute the decision on his forced return to his country of origin.
In this regard, the plaintiff believed that the Cabinet of Ministers of Ukraine should bring subparagraph 2 of paragraph 61 of the Procedure for issuing a temporary residence permit into line with the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, in particular, by providing for an exception for persons recognised in accordance with Article 6-1 of this Law as stateless persons.
The complainant notes that the courts of first and appellate instance incorrectly applied the provisions of paragraph 3 of the Final Provisions of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, part nineteen of Article 5 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, paragraph 3 of part two of Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, and articles 8 and 13 of the European Convention on Human Rights.
The claims stated in this case, according to the complainant's arguments, did not concern the exclusion of certain provisions, as the courts of previous instances mistakenly believed, but rather their bringing into line with the adopted changes in the legislation, in particular, with the Law of Ukraine "On the Legal Status of Foreigners and Stateless Persons" as amended on 6 June 2020 and the Procedure for Considering Applications for Recognition as a Stateless Person approved on 24 March 2021, which provided for the right of a stateless person to obtain a temporary residence permit in the territory of Ukraine. The complainant emphasises that the courts of previous instances erroneously concluded that the Cabinet of Ministers of Ukraine had no legally defined obligation to bring the contested clause of Procedure No. 322 into line with the adopted changes in the legislation. The Cabinet of Ministers of Ukraine had such an obligation in accordance with paragraph 3 of the Final Provisions of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, which provides for bringing the regulatory legal acts of the Cabinet of Ministers of Ukraine into line with the said Law.
The complainant draws attention to the fact that the courts did not take into account the procedure he went through to obtain the status of a stateless person, as well as the rights that arose for him after submitting an application and making a decision to recognise him as a stateless person. He emphasises that in accordance with Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, a person, after being recognised as a stateless person, has the right to obtain a temporary residence permit on the basis of part nineteen of Article 5 of the same Law.
The complainant also believes that after being recognised as a stateless person, the decision to forcibly return him to his country of origin is not subject to enforcement due to a change in his legal status. Paragraph 3 of Part Two of Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” provides that a person is considered to be temporarily staying in the territory of Ukraine on legal grounds during the period of consideration of an application for the statelessness determination procedure. To confirm this, a relevant certificate is issued, which the complainant received on 11 May 2021. After recognising him as a stateless person, the State Migration Service gave him a 10-day period to apply for a temporary residence permit. The plaintiff fulfilled this obligation within the specified period, but received a refusal, which he appealed in court. At the time of appealing the refusal, he is also considered to be staying in the territory of Ukraine on legal grounds.
According to the complainant, the issuance of a temporary residence permit is the final stage for a person recognised as stateless. In the absence of such a document, the statelessness determination procedure loses its purpose, since the person remains without documents confirming his identity and legal status, and is again exposed to the risk of administrative liability, forced expulsion or detention. The complainant argues that the State must provide stateless persons with a document confirming their identity and legal status. Deprivation of such a right is a direct violation of the guarantees provided for in the European Convention on Human Rights.
The Cabinet of Ministers of Ukraine also filed a response to the cassation appeal, in which it requests that the cassation appeal be dismissed and the contested court decisions be left unchanged. The Cabinet of Ministers of Ukraine draws attention to the fact that the complainant bases his cassation appeal on provisions of the legislation that have been amended since the filing of the claim and could not have been taken into account by the courts of previous instances when adopting the contested court decisions. In particular, the defendant indicates that Part Nineteen of Article 5 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, to which the complainant refers, at the time of the adoption of the court decisions was in force in the version of 5 October 2022, which extended its effect only to persons who, in accordance with the established procedure, concluded a contract for military service in the Armed Forces of Ukraine. The Cabinet of Ministers of Ukraine indicates that at the time of consideration of the case by the courts of previous instances, the specified norm provided for the mandatory presence of a valid passport document for a person to obtain a temporary residence permit, as well as his stay on the territory of Ukraine on legal grounds, which was correctly determined by the courts of previous instances. The defendant refutes the complainant's claim that subordinate regulatory legal acts, in particular subparagraph 2 of paragraph 61 of Procedure No. 322, were not brought into line with changes in the legislation. The Cabinet of Ministers of Ukraine emphasises that the deadline established by law for making such changes has not yet expired, and it is not obliged to bring this Procedure into line with current legislation directly regarding the specified item.
The Supreme Court states that there are legal inconsistencies between the contested provision of the Procedure for Issuing a Temporary Residence Permit and the norms of the Law of Ukraine "On the Legal Status of Foreigners and Stateless Persons" in terms of the scope of the rights of stateless persons to obtain a temporary residence permit. The Procedure for Issuing a Temporary Residence Permit, as a subordinate regulatory legal act adopted to implement the norms of the Law of Ukraine "On the Legal Status of Foreigners and Stateless Persons", establishes additional restrictions for stateless persons for issuing a temporary residence permit, which are not stipulated by the aforementioned law, in fact violating the guarantees provided by the aforementioned laws and creating obstacles to the exercise of the rights of these persons. Such restrictions not only contradict the main provisions of the relevant laws, but also in fact deprive stateless persons of access to the mechanisms for legalising their stay in Ukraine.
The inaction of the Cabinet of Ministers of Ukraine regarding the non-adoption of subparagraph 2 of paragraph 61 of the Procedure for the registration, issuance, exchange, cancellation, transfer, withdrawal, return to the state, recognition as invalid and destruction of a temporary residence permit in accordance with the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” has been recognised.
The Cabinet of Ministers of Ukraine is obliged to bring subparagraph 2 of paragraph 61 of the Procedure for the registration, issuance, exchange, cancellation, transfer, withdrawal, return to the state, recognition as invalid and destruction of a temporary residence permit into the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, providing for an exception in the application of subparagraph 2 of paragraph 61 of this Procedure for stateless persons recognised in accordance with Article 6-1 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”.
Resolution of the Supreme Court of 8 February 2024 in case No. 500/3925/22
The State Migration Service of Ukraine filed a response to the cassation appeal, in which it requests to refuse to satisfy it and leave the contested court decisions unchanged. The third party notes that the provisions of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, even after the amendments made by the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Recognition as a Stateless Person”, do not provide for any exceptions or privileges for stateless persons, in particular regarding their failure to comply with decisions made in relation to them after recognition as a stateless person in Ukraine. In addition, the third party indicates that Procedure No. 322 does not establish additional obligations for the plaintiff, in addition to the existing ones, and does not change the scope of rights enshrined in national legislation, therefore the plaintiff’s allegations of violation of his constitutional rights in Ukraine are groundless. The State Migration Service of Ukraine insists that the contested clause of Procedure No. 322 is fully consistent with the provisions of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”.