‘The Supreme Court emphasises that Law No. 3773-VI, as amended, ensures equal access to the procedure for recognising the status of a stateless person, regardless of the legality or illegality of their stay in Ukraine. The law recognises the special legal status of stateless persons, as undocumented persons may be in a situation of legal uncertainty for a long time due to the lack of documents or citizenship of any state. Therefore, this law gives them the right to apply for recognition of statelessness and allows them to legalise their stay in Ukraine, regardless of their previous legal status.
According to the Supreme Court, the said imperfection of legislative regulation of the disputed legal relations at the level of a subordinate regulatory legal act should not affect the possibility of exercising the rights of stateless persons guaranteed by the amendments introduced by Law No. 693-IX to Law No. 3773-VI, in particular the right to document and legalise their stay in Ukraine.’
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In R2P’s case, the Supreme Court ordered the Cabinet of Ministers to Amend the Legislation to Solve the Problem of Obtaining a Temporary Residence Permit
February 3, 2025
Since the introduction of the statelessness determination procedure, the problem of documenting people subject to unenforced decisions by a court or public authority on forced return, expulsion, entry ban, or other obligations has arisen. This situation has arisen due to the inconsistency of the provisions of the Procedure for Registration, Issuance, Exchange, Cancellation, Transfer, Withdrawal, Return to the State, Invalidation and Destruction of a Temporary Residence Permit, approved by Resolution of the Cabinet of Ministers of Ukraine No. 322 of 25 April 2018 (hereinafter — Procedure No. 322) with the provisions of Article 6-1 of the Law of Ukraine On the Legal Status of Foreigners and Stateless Persons.
Thus, such people are denied a temporary residence permit and continue living without an identity document despite being granted statelessness status. Such applicants are also unable to execute the above-mentioned existing decisions on forced return or expulsion due to the lack of an identity document and the state to which they may be returned or expelled. This situation leads to a violation of the right of such persons to obtain legal status and a document for residence in the state.
In 2021, with the entry into force of amendments to the Law of Ukraine On the Legal Status of Foreigners and Stateless Persons introducing a statelessness procedure, undocumented people living in Ukraine who do not have citizenship of any country in the world became eligible for official recognition as stateless. According to the law, upon successfully completing the statelessness determination procedure, the applicant must apply for a temporary residence permit, a document certifying a stateless person. If the applicant does not receive such a document, he or she loses the grounds for legal residence in Ukraine.
However, after the decision to recognise a person as stateless has been made, people subject to unenforced decisions of a court or authorised body on forced return, expulsion, entry ban or imposition of administrative penalties or property obligations cannot obtain a residence permit due to the existence of subparagraph 2 of paragraph 61 of Procedure No. 322, which provides for the refusal to issue a residence permit due to the existence of such decisions. At the same time, the existence of such decisions in relation to the applicant is not ground for refusal to grant statelessness status. Thus, a situation arises when the state first agrees with the illegality of a person's stay in Ukraine and the existence of administrative offences and then refuses to issue the documents necessary for legal residence based on the provisions of a bylaw and actually prevents the person from completing the legalisation procedure in the state.
Right to Protection is actively working to solve this problem. In particular, the lawyers of the Fund's Assistance to the Stateless Persons in Ukraine programme direction appealed against the refusal of the State Migration Service of Ukraine (SMS) to issue a temporary residence permit in the courts of first instance, appeal, and cassation. At the same time, the specialists conducted an advocacy campaign to amend the legislation to solve this problem.
R2P received the first case law recognising the violation of the rights of such applicants for a temporary residence permit in 2024. This indicates the systemic nature of the problem and the misapplication of the SMS legislation in the process of deciding to refuse to issue a temporary residence permit in the situations described. In particular, on 8 February 2024, the Supreme Court of Ukraine issued a ruling in case No. 500/3925/22. It declared the decision of the SMS to refuse to issue a temporary residence permit unlawful and subject to cancellation. This decision is the first to recognise the problem of documenting specific categories of stateless persons with a temporary residence permit and changes the approach to interpreting legislation in this area.
Subsequently, the Ivano-Frankivsk District Administrative Court made a decision regarding another stateless person assisted by the Foundation's experts. It fully satisfied the claim, recognising it as unlawful and cancelling the decision of the State Migration Service of Ukraine to refuse to issue a temporary residence permit to a stateless person. The court ordered the State Migration Service of Ukraine to issue the plaintiff a temporary residence permit as a stateless person.
However, on 17 December 2024, the Supreme Court, in case No. 640/15163/22 of another man who is being provided with legal assistance by the Fund's experts, issued a ruling that not only solves the problem of the applicant for a temporary residence permit but also establishes the need to resolve this problem at the legislative level by amending Procedure No. 322.
In this case, under a claim against the Cabinet of Ministers of Ukraine, the Supreme Court recognised the inaction of the Cabinet of Ministers of Ukraine in failing to bring subparagraph 2 of paragraph 61 of Order No. 322 in line with the Law of Ukraine On the Legal Status of Foreigners and Stateless Persons and obliged the Cabinet of Ministers of Ukraine to bring subparagraph 2 of paragraph 61 of Order No. 322, following 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 for persons recognised per Article 6-1 of the Law of Ukraine On the Legal Status of Foreigners and Stateless Persons.
Among other things, the resolution of the Supreme Court states:
The above decision of the Supreme Court recognises the existence of an inconsistency in legislation, the consequences for stateless persons recognised by Ukraine and the need to address the problem at the national level. After the Cabinet of Ministers of Ukraine implements this decision, these persons will be able to complete the procedure for recognition as stateless and receive an identity document. This will have a positive impact on the observance of the rights of stateless persons to obtain legal status and further exercise their rights.