Let’s Fight Racism Together

20.12.2008

LEGAL STATUS OF FOREIGNERS AND STATELESS PERSONS IN UKRAINE

Filed under: Uncategorized — legalantiracism @ 20:42

The legal status of foreigners and stateless persons is fixed by the Law of Ukraine in the legislation namely «On the Legal Status of Foreigners and Stateless Persons» of 04.02.1994, and also in other laws and subordinate legislation including the Convention Relating to the Status of Stateless Persons of 28.09.1954, Convention Relating to the Status of Refugees of 28.07.1951, The Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they live of 13.12.1985.

According to the Law of Ukraine «On the Legal Status of Foreigners and Stateless Persons» foreigners are individuals who have citizenship of foreign states and are not citizens of Ukraine, and also individuals without citizenship who claim citizenship of no particular state (Art. 1 of the Law).

Foreigners enjoy the same rights and freedoms as the citizens of Ukraine. They are charged with the same duties unless otherwise provided by the law and international conventions of Ukraine (Art. 26 of the Constitution of Ukraine).

However, there are status distinctions between foreigners and citizens of Ukraine.  Administrative legal capacity of a foreigner who has arrived in the country becomes effective from the date of entry and terminates on the date of departure from the country. Administrative capacity of a foreigner consists in the capability to realize one’s rights by one’s acts and to discharge one’s obligations. There are features characteristic of the legal status of foreigners and non-patriots, including a number of restrictions of their rights and duties.

A foreign citizen does not lose legal relationship with his/her country by staying outside its boundaries. Such an individual is entitled to its protection and support. At the same time, a foreign citizen is under the jurisdiction of another country. He/she is obliged to keep to the Constitution and administrative rules provided by it.

Article 3 of the Law of Ukraine «On the Legal Status of Foreigners and Stateless Persons» states the distinction between temporary foreigners and foreigners who permanently reside in Ukraine:

  • foreigners and stateless persons who immigrated for permanent residence or arrived for temporary employment — are considered permanently residing in Ukraine. A permanent or temporary registration certificate is the document confirming legality of residence in Ukraine for such foreigners.

  • foreigners and stateless persons who reside otherwise in Ukraine lawfully are considered temporarily residing in Ukraine. On arrival in Ukraine they are obliged to enter their passport data at the Ministry of Interior. Also, it is obligatory to enter information on relocation. After termination of residence, they are obliged to leave Ukraine. During temporary residence in Ukraine, foreigners and stateless persons have no right to change their status of residence to any other and simultaneously apply for/hold?? a residence permit in Ukraine.

Crossing the State Border of Ukraine:

For citizens of countries of current visa-free regime with Ukraine (e.g. Russian Federation, Republic of Belorussia, Republic of Moldova), a term of lawful residence (implying that registration is not necessary) amounts to 90 days. In this case, the document attesting the date of one’s entry) is an immigration card. It is distributed free of charge at the state border crossing point. Foreign citizens personally fill in an immigration card before passing passport control. At the time of passing passport control, the appropriate stamp is made. Then the card is divided into two parts, one of them remains with a foreign citizen for the entire term of residence in the territory of Ukraine. The card is returned back to the frontier guard at the time of departure at the state border crossing points of Ukraine. Foreigners who cross the border with internal passports have their immigration card stamped by a registration mark. Foreigners who cross the border with international passports have their both passport and the immigration card stamped by a registration mark.

Loss of immigration card does not entail any fine sanctions. In case of loss, an immigration card as related to «Arrival» will be renewed using common computer system and a foreigner will continue with his/her itinerary. It is recommended to keep your ticket as this will additionally confirm crossing the border lawfully.

Foreigners and stateless persons who arrive to Ukraine must have a passport. A document attesting the citizenship or identity of a stateless person issued by competent authorities of a foreign state and recognized by Ukraine entitles to go abroad.

Persons and organizations receiving foreigners bear the responsibility for timely explanation of their rights, freedoms and duties as provided in the legislation of Ukraine. They have to keep a record of these individuals and also bear responsibility for timely proceeding of documents ensuring the right of residence in Ukraine, their migration within limits of the state and their departure from Ukraine after termination of the specified term of visit.

Documents certifying lawfulness of stay in the territory of Ukraine:

According to Art. 5 of the Law of Ukraine «On Freedom of Movement and Choice of Place of Residence in Ukraine,» lawful stay in the territory of Ukraine for foreigners and stateless persons assumes registration of one’s passport document or a temporary or permanent residence permit in Ukraine, or documents confirming obtained refugee status or afforded asylum in Ukraine.

Registration and deletion of registration of place of residence of persons come under the jurisdiction of administrative units of State Department on Affairs of Citizenship, Immigration and Registration of Physical Persons of the MoI of Ukraine (CIRPP).

By the Decree of the President of Ukraine «On Additional Measures Concerning Enjoying the Right to Freedom of Movement and Free Choice of Inhabitancy» N435 of 15.06.2001, registration of foreigners who enter Ukraine in accordance with established law and registration of their passport documents is executed only at points of crossing the state border of Ukraine by persons of the State Committee On Guarding the State Border of Ukraine. Other registration of foreigners who lawfully temporarily reside in the territory of Ukraine and of their passport documents is not undertaken by the MoI bodies.

Primary registration of foreign citizens is executed by the frontier guard on crossing the state border. It involves stamping a date on the documents. Absence of such a stamp in the passport of a foreign citizen is a reason to consider this person a violator of the state border.
Foreigners who arrived in the territory of Ukraine through a non-visa regime may stay for 90 days after primary registration. In case of a visa, the term of stay is calculated according to its validity but cannot exceed 6 months. Issues of extending the visa/term of stay of foreign citizens are considered by Ukrainian MoI institutions only.

Registration of foreigners who arrive in Ukraine for permanent residence, education, internship and employment will be executed in accordance with the established law by the MoI institutions.

In case of loss of a national passport in the territory of Ukraine, a foreigner must inform a receiving organization and the MoI, which will then issue a loss certificate on the request of a citizen. After receiving a new national passport at a diplomatic embassy or consular institution of their home country, a foreigner, with the mediation of the receiving organization, files a personal application with the MoI, which then decides to issue a departure visa to leave Ukraine or to register the national passport of the foreigner.

Art. 6 of the Law of Ukraine  «On Freedom of Movement and Choice of Place of Residence in Ukraine» provides that a foreigner or a stateless person lawfully staying in Ukraine is obliged to register a place of residence within 10 days after arrival at a new place of residence.

Owners of business or private visas must register their passports at the local CIRPP. One ought to see to it beforehand because if the receiving party tries to organize registration later, the procedure can take very long. On hotel registration, registration of one’s passport occurs automatically. On departure, one should check for a mark of the hotel on their passport or for a special registration card confirming registration by this hotel. A registered passport will save you trouble on departure from Ukraine.

Terms of lawful temporary stay in the territory of Ukraine (according to the Resolution of the Cabinet of Ministers of Ukraine of 20 February 1999 № 227 «On Approval of New Order of Execution of the Visa Documents for Entry in Ukraine») depending on a visa type:

  • Diplomatic visa (Д, VD) — according to bilateral agreements of Ukraine on principles of reciprocity or for all period of accreditation.
  • Official visa

— C-1 /VS — according to bilateral agreements of Ukraine on principles of reciprocity or for all period of accreditation.

— C-2/VW, C-3/VC — as a rule for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.

  • Business visa (Б/VB) — as a rule, for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.
  • Visa for workers of emergence services (Л/VL) — as a rule, for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.
  • Student visa (О/VO) — one year.
  • Visa for scientists (Н/VH) — as a rule, for six months or for a period indicated in documents based on which the visa was issued,but no longer than a year.
  • Visa for mass media workers (М/VM) — according to bilateral agreements of Ukraine on principles of reciprocity or for all period of accreditation.
  • Visa for religious missions representatives (Р/VR) — as a rule, for six months or for a period indicated in documents based on which the visa was issued,but no longer than a year.
  • Visa for humanitarian missions representatives (Г/VG) — as a rule, for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.
  • Visa to enter with a purpose of cultural and sport exchange (К/VK) — as a rule, for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.
  • Tourist visa (Т/VT) — six months.
  • Private visa

— П-1 — one year.

— П-2 — five years.

  • Immigration visa

— IM-1/VA — one year.

— IM-2/VE, IM-3/VI) — issued for individuals who enter Ukraine for permanent residence, individuals who enter with a purpose of reuniting a family.

  • Visa for attendants of transportation means (ОП/VZ) — as a rule, for six months or for a period indicated in documents based on which the visa was issued, but no longer than a year.
  • Transit visa

ТР-1/VF — five days for one crossing of the territory of Ukraine.

ТР-2/VX — for a period indicated in documents based on which the visa was issued, but no longer than a year. However, the term of stay in Ukraine at the time of each transition of the territory of Ukraine may not exceed five days.

  • Visa for entry with a purpose of organization and carrying the football championship Euro 2012 (Ф/VY) — up to five years, but no longer than one year after the final part of the football championship Euro 2012 in Ukraine.

For the sake of convenience, we will refer to certain specific groups of foreign citizens staying in Ukraine:

  • foreigners who permanently or temporarily stay on the territory of Ukraine and who are under the state’s jurisdiction so as the citizens are: foreign students, postgraduate students, tourists, sportsmen, journalists, crews of civil planes, merchant and passenger vessels, members of delegations of cultural, scientific, technological exchange, individuals who arrive on private business etc.
  • members of military crews, military men. They are under the state’s jurisdiction only in case of committing illegal acts not in line of duty. Issues of their responsibility are considered according to diplomatic protocol.
  • individuals who have consular immunity. They are personally untouchable and not controlled on issues connected with their official activities.
  • individuals who have diplomatic immunity are untouchable and excused of criminal, administrative, civil etc. liability before the authorities of country of stay.
  • individuals who were given asylum (who have received a refugee status in the territory of Ukraine).
  • military men of armed forces who stay in alien territories according to international treaties. These treaties determine extent of immunity of armed forces that extends to official activities only. Beyond it, in case of the committing of a crime, military men are under jurisdiction of country of stay.

Ukraine establishes the national legal regime for foreigners, which is a general principle of Ukrainian legislation. According to it, foreigners are equal with regards to their rights and duties to citizens of Ukraine, with some specifically provided exceptions.

Main rights and duties of foreigners and stateless persons are provided in Art. 7-24 of the Law of Ukraine «On Legal Status of Foreigners and Stateless Persons ».

Foreigners have rights to:

  • possess any property, inherit and create it;
  • freedom of conscience;
  • inviolability of person, home, to privacy, of correspondence, telephone and telegraph communication, implicitly, respect for dignity;
  • leisure;
  • social protection;
  • enjoy cultural achievements;
  • business initiative and investing activities;
  • access to courts and other state authorities as remedies for property and non-property rights.

IMPORTANT NOTE! Extent of legal status of foreigners depends also on permanent or temporary stay in the territory of Ukraine.

The rights provided for permanently residing foreigners:

  • work for enterprises, institutions, organizations and engage in other employment. Foreigners who temporarily stay in the territory of Ukraine must receive a labour permit issued on prerequisite basis by the State Employment Service of Ministry of Labour.
  • use medical services;
  • accommodation according to the legislation of Ukraine;
  • membership of legalized public organizations (when provided by articles of associations unless otherwise prescribed by the law of Ukraine).

At the same time foreigners have no right to:

  • found and be members of political parties (Art. 36 of Constitution, Art. 16 of European Convention on Human Rights, Art. 12 of Law «On associations of citizens», art. 16of Law «On the Legal Status of Foreigners and Stateless Persons »);
  • elect and be elected for state and municipal authorities, participate in referendums;
  • receive or possess land. But joint ventures, international associations and organizations with foreign members and also stateless persons may farm it;
  • receive part of state property for privatization cheques (Art. 15 of the Law of Ukraine «Оn Privatization of State Property» of 19.02.1997);
  • have peasant (farm) holding (Art. 2 of the Law of Ukraine «On Peasant (Farm) Holding» оf 20.12.1991);
  • be attorneys, auditors, notaries (Art. 2 of the Law of Ukraine «On Legal Profession» of 19.12.1992, Art. 3 of the Law of Ukraine «Оn Notarial Profession» of 02.09.1993 г.);
  • be state officials (Art. 4 of the Law of Ukraine «On the State Service» оf 16.12.1993), including military men (Art.1 of the Law of Ukraine «On Universal Military Obligation and Military Service» оf 25.03.1992).

Moreover, legislation of Ukraine established certain stipulations regarding particular rights of foreigners. Thus, foreigners who immigrated to Ukraine for employment for a definite term may engage in it only on the basis of a labour permit. Labour permits proceeding order for foreigners and stateless persons was approved by the Cabinet of Ministers of Ukraine on 01.11.1999. According to it, a labour permit is proceeded and issued by the State Employment Centre of Ministry of Labour or on behalf of it by respective employment centres only provided that required workers able to execute the work are unavailable among the citizens, or there is a reasonable ground of rationality for the use of the work of international specialists unless otherwise provided by international treaties of Ukraine. Foreigners who permanently reside in the territory of Ukraine do not need a labour permit. As a rule, a permit is valid for one year or less and on certain ground, the term may be prolonged, but invariably the uninterrupted term of stay of foreigners with the purpose of employment cannot exceed 4 years.

Right of foreigners to education is provided by the Constitution of Ukraine and the Resolution of the Cabinet of Ministers of Ukraine «On Educating Foreigners in Ukraine» оf 26.02.1993. As a rule, foreigners receive education on compensatory basis unless otherwise provided by international treaties.

There are certain stipulations regarding entry of foreign citizens who come from states where dangerous illnesses have been recorded. According to the Law of Ukraine «On Ensuring Sanitary and Epidemiological Well-being of Population» оf 24.02.1994 (Art. 29) separately formed sanitary-quarantine units operate at the frontier points with purpose of prevention of transmission of special danger illnesses and infections.

Foreigners are entitled to move throughout the territory of Ukraine and choose a place of residence in it only in accordance with the order established by the Cabinet of Ministers of Ukraine. For foreigners who plan to stay in Ukraine more than 3 months, an entry visa is issued by diplomatic missions and consular institutions of Ukraine on the basis of presentation of a document attesting HIV-negative status unless otherwise provided by international agreements of Ukraine.

Only foreigners can be subjected to such a sanction as expulsion from Ukraine.

Exercise of rights and freedoms provided by Ukrainian legislation must not cause damage to national interests of Ukraine, rights, lawful interests and freedoms of its citizens and other individuals residing in Ukraine.

Administrative responsibility in the form of punitive measures for violation of the Rules of stay for foreigners in Ukraine is 16 to 1700 grivnas; for citizens of Ukraine who abet such violations it is 8 to 850 grivnas; for officials for violation of order of registration of foreigners or proceeding documents for residence permit upto 350 grivnas. Not only foreigners are liable for this responsibility but also citizens of Ukraine who abetted this violation.

The rules of stay in Ukraine are subject to multidimensional and multilevel control. This is the competency not only of officials of the Department of Citizenship, Immigration and Registration of Physical Persons but also of representatives of other departments of the MoI, district police officers, the Department of the State Frontier Guard. Besides, even having somehow avoided the passport control while entering and during their stay in Ukraine, a foreign citizen will inevitably find himself before the frontier guard at the time of departure to his country. They have the discretion to report administrative violations of this kind and fine violators. So it is your interest to try and fulfill all requirements of the law in order to avoid these concerns.

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