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Deportation and Refoulement Concerns

Deportations

More than 5,000 people were deported from Ukraine in 2004. Of that total, more than 2,000 were deported to Asian countries, mainly China but also to India, Bangladesh and Pakistan, and more than 3,000 to countries of the former Soviet Union.²⁸⁰ In the first six months of 2005, 2,346 persons were deported from Ukraine, a 70 percent increase on the same period in 2004.²⁸¹

Failed asylum seekers and irregular migrants are liable to deportation from Ukraine. The legal mechanism for deportation is a deportation order issued by the migration service, Ministry of Internal Affairs officials or Border Guard Service officials.²⁸² Under Ukrainian law, such an order can be challenged in court, and the appeal has a suspensive effect on the removal decision.²⁸³ In practice, no such remedy exists.

Officials in the Ministry of Internal Affairs and Border Service interviewed by Human Rights Watch were unaware that deportation orders could be challenged in court.²⁸⁴ They were also unable to identify the institution tasked with review of the legality of deportation orders, or with evaluating and making final determinations regarding nonrefoulement claims under Article 3 of the U.N. Convention against Torture or the European Convention on Human Rights.²⁸⁵

The failure of Ukrainian authorities to afford migrants and asylum seekers basic procedural guarantees may result in their return to states where they may be subject to persecution or the risk of torture or other cruel, inhuman or degrading treatment. Particularly, the application of the strict application deadlines in Article 9 of the Refugee Law combined with the lack of protection against refoulement to torture put refugees under an undue danger of being deported back to their potential (or actual) persecutors.

An estimated four hundred persons (mostly from Afghanistan and Chechnya) were refouled during 2004. Some of them were deported without having had access to any procedures: they could not challenge their arrest, detention or deportation, and had no opportunity to claim asylum. Others were not able to lodge asylum claims or to meet the tight deadlines for asylum claims under Article 9 of the Refugee Law. Those who were able to bring claims often had those claims rejected by the migration service on procedural grounds, without their applications having been considered on the merits.

A significant number of deportations originate in western Ukraine, particularly in Transcarpathia region. For the first quarter of 2005, out of 287 foreigners detained in the Pavshino detention facility in the region, 134 had been issued a decision for return.²⁸⁶ The head of the regional border guard service, Major Civiljiov, told Human Rights Watch, “Returning is the main option, it is impossible to keep such quantities here.”²⁸⁷ UNHCR is extremely concerned about ongoing restrictions to UNHCR and its partners’ access to Chop border guard detention facility in the same region, preventing facilitation of applications for asylum. Chechens are liable to deportation within two to three days of their initial detention.²⁸⁸ K.K. and K.Z., Chechen asylum seekers, reported that they fled Muhachevo detention center when authorities there told them that they planned to hand them over to the FSB, the Russian federal security service. K.K. told Human Rights Watch, “They told me, ‘We will transfer you to the FSB.’ I didn’t want this. I was afraid of what would happen to me in the hands of the FSB.” ²⁸⁹

F., an eighteen-year-old Iranian, was sent by the border guard service in Transcarpathia to the Iranian Embassy in Kyiv after three months of detention in Pavshino. Fearing deportation, he failed to report to the embassy. He told Human Rights Watch: “I know that if I am deported to my home country, I will be severely punished.”²⁹⁰

The head of the migration service in Uzghorod admitted, “We can’t exclude the possibility that people who are in need of protection are deported, particularly Chechens, because the border guards don’t inform [us] who is deported and where they are sent. Particularly for Chechens, they are immediately deported from Ukraine and [the] migration service doesn’t have any idea that this happens. They find out post factum at the end of the year.”²⁹¹