Interview with Mr. Guy Ouellet, UNHCR Representative in Ukraine

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In 2001 Ukraine approved The Law on Refugees. What are the strong and week sides of this document?

"For the first time, the 2001 Law stipulates that family members of recognized refugees receive the right to arrive in Ukraine with the purpose of family reunion and to acquire refugee status. The Law also introduces a definition of separated children seeking for asylum and special procedure for their reception, accommodation, care, legal representation and tracing of family members. According to the Law, recognized refugees should be granted social and economic rights equal to Ukrainian nationals. Refugee status no longer needs to be extended every three months. Instead recognized refugees receive renewable certificates valid for one year as well as the right to also apply for Convention Travel Documents. The Law also secures the legal stay of asylum seekers in Ukraine during appeal procedures and improves the issuing of necessary documents and registration during all stages of the asylum process.

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"At the same time the Refugee Law also still contains several severe weaknesses, the most important of which are the application deadlines under its Art. 9 and the possibility to deprive recognized refugees of their status without a court decision under its Art. 15."

According to the Law of Ukraine on Refugees, a person, who seeks refugee status, has to address Ukrainian authorities within three days. Is this time limit enough for solution of respective issues?

"No, as I said before, these deadlines under Art. 9 of the Refugee Law need disaffirmation. According to this article all applications filed more than three days after illegal entry of the territory of Ukraine or five days after legal entry will be automatically refused any consideration. These stipulations putting refugees in undue danger are not in line with international law and practice and have by now-after more than one year of the Refugee Law implementation-also proven highly impractical.

"During the process of reading the Refugee Law, the Parliament kindly requested UNHCR to provide its international legal expertise. On these occasions UNHCR argued against the introduction of the strict application deadlines under Art. 9 of the Refugee Law.

"This is a violation of the Universal Declaration of Human Rights, whose Article 14 recognizes the right to seek and enjoy asylum as a basic human right, as well as of the Geneva Convention relating to the Status of Refugees, the European Convention on Human rights and other international and national laws.

"Also the EU standard on asylum prohibit the EU member-states to set application deadlines, meaning that currently Ukraine and Russia are the only European countries fixing them. Therefore, the abolition of these deadlines will be considered a vital step in Ukraine's progress in harmonizing its legislation with European standards.

"However, instead of complete removal of these deadlines from the draft law, only some humanitarian exceptions were introduced, which were not implemented. As a result, almost 70% of all close to 1,400 asylum applications filed in 2003 were rejected on merely formal grounds, without any consideration of the applicants real protection needs. This has left close to 1,000 persons undocumented in Ukraine, put them into undue danger of being deported back to their potential persecutors and created unnecessary headaches for Ukrainian law-enforcement bodies, which would have to decide on their expulsion.

"As I said before, UNHCR was against these deadlines for many reasons. Another one is that they are totally unrealistic. For many reasons asylum-seekers may also be unable to promptly present themselves to authorities to have their refugee status recognized. They don't know where to go and how to ask for refugee status, where to obtain any information on this; people often don't speak Ukrainian. Even to fill in an application they need somebody's help. Some migration services require people to come with already filled application, photos and even personal interpreter. Is it possible to make it within 3-5 days in a foreign country?

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"People with well-grounded fear of persecution, forced to escape their home country and seek asylum, come to Ukraine and miss these application deadlines. It means nobody will listen to their stories; nobody will take their case into consideration. They will be simply deported to the country, where they were persecuted. This is violation of the so-called non-expel principle-the main principle of the 1951 Convention relating to the Status of Refugees, that prohibits forced return of people to a country, where they can face persecution. "

Have you tried to bring this problem to the attention of the Verkhovna Rada?

"We have sent our Position paper on the art. 9 to the Verkhovna Rada Chairman as well as to the Committee for Human Rights, National Minorities and International Relations. Then the SCNM was instructed to prepare a draft on amendments to the Refugee Law. Unfortunately, the first draft done by the SCNM is not yet in line with international standards.

"We recommended applying art. 9 in a flexible manner until the Refugee Law is amended. A flexible approach would include examining applications on their substance and requesting explanations for late applications. If explanations are found to be invalid, the findings may negatively affect the credibility of the claimant. Some regional migration services have already used this flexible approach and they did not face any inconveniences. "

Before 2001, 50 per cent of those who wanted to get an asylum in Ukraine have received it. Now the recognition rate has dropped to 3 per cent. There are fewer refugees now, or there are absolutely other reasons?

"Though there might be some changes in the overall case-load this radical drop is first and foremost a direct result of the strict implementation of the deadlines under Art. 9 of the Refugee Law. "

Majority of refugees comes to Ukraine through the territory of Belarus or Russia. In case of deportation of newcomers they have to be returned to the places where they came from. So, do Belarus and Russia can always be considered as the third safe countries, as it is stipulated in the Law?

"One of the Law's strong points is its definition of a save third country in line with international standards. It, therefore, defines a third country as 'safe' only if it adheres to international refugee protection principles envisaged by the 1951 Convention, conducts refugee status determination procedure in line with national legislation, agrees to readmit the applicant and ensure his/her access to fair procedures.

"Whether a country is safe or not should be determined in each individual case based on the criteria if asylum seekers can get a necessary and timely protection there or not. If you look into the above definition, you will see that in most cases Belarus and Russia do not meet all the criteria for safe countries for asylum seekers. "

In Ukraine the authority, who deals with refugee issues, is the State Committee for Nationalities and Migration.

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How successful does it cooperate with UNHCR?

"We work closely with the SCNM and currently we are in the process of signing an agreement on mutual cooperation and capacity building of the SCNM for 2004. It envisages informational, financial and technical assistance to develop asylum system in Ukraine. In addition, we enjoy fruitful working relations and have agreements with regional migration services in Odesa, Zakarpattya and Kyiv Oblast. Now we discuss the same agreements with the Kyiv City and Kharkiv migration services. These are regions where the majority of refugees and asylum-seekers live.

"The main problem is that the SCNM, the key governmental body in charge of refugee issues, has been re-organized seven times since 1991. Then continuous administrative reforms caused delays in implementation of refugee legislation and turnover of staff. This also means that many officials who had a very good knowledge and experience in refugee issues and cooperation with the UNHCR were lost. The new staff always need a lot of training to understand the complex matters under their responsibility as well as their legal obligations to cooperate very closely with us. Also the SCNM is not provided enough resources to fully implement their mandate. "

Could you please familiarize our readers with the UNHCR mandate in Ukraine, who are your main national and international partners?

"The UNHCR's current main role in Ukraine is to advise, assist and monitor the country's implementation of its responsibilities for the protection of refugees. We support the development of a comprehensive asylum-system as an integral part of migration management, working with the central and regional authorities as well as with NGOs.

"In 2002-2003 we granted more than USD 2, 872,000 for these purposes. This year we plan to spend almost USD 2,500,000.

"In 2003-2004 UNHCR is also implementing an additional joint project "Strengthening asylum in Ukraine", funded by the European Commission. The overall cost of the project amounts to Euro 1,436, 290. It includes capacity building of the Ukrainian authorities dealing with refugee and asylum issues, support to legal NGOs, and assistance to the most vulnerable refugees and raising public awareness on refugee issues. In the framework of this project by the end of 2004 jointly with our governmental partners we'll establish some 500 additional places for accommodation of newly arrived asylum-seekers. For the moment, the only temporary accommodation centre for asylum-seekers existing in Odesa can host up to 50 persons, while the EU candidate countries (Poland, Slovakia, Czech Republic, and Hungary) have space for approximately 2,000-2,500 new arrivals each. "

This year Ukraine will border the EU member states. What should be done to foresee and manage possible challenges for the refugee protection system and migration management as a result of the EU expansion?

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"The oncoming expansion of the European Union calls for partnership and enhanced cross-border co-operation between the WNIS and the EU. Early in 2001, the UNHCR and the Swedish Migration Board (SMB) launched a joint pro-active initiative to promote dialog on asylum and irregular migration problems among the future EU Eastern frontier countries. The initiative was named "The Soderkoping Process" after the town of Soderkoping in Sweden, where the first meeting on migration, asylum and border guard officials was held.

"Initially, the process started from co-operation between officials from Sweden, Belarus, Lithuania, Poland and Ukraine. Latvia and Moldova joined this group in 2002, while Estonia participates as observer. As of October 2003 the Soderkoping process also covers Hungary, Slovak Republic and Romania. Furthermore, the process involves co-operation between UNHCR, the SMB, the IOM and the EC.

"As a result of the EC funding allocated for a 12-month period in 2003, the Secretariat was established on May, 20 2003 to co-ordinate activities within the framework of the Soderkoping Process. The Secretariat is based in Kyiv, Ukraine, on the premises of the UNHCR Representation for Ukraine. Its work is supervised by the Organizing Committee composed of UNHCR, EC, SMB and IOM. "

It seems that UNHCR pays a lot of attention to the development of regional policies and promotion of cross-border cooperation, is it correct?

"Yes. Indeed, neighboring countries face similar problems, and development of a consistent and comprehensive regional strategy is the only solution to meet new challenges effectively. As of 2004 the UNHCR Office, based in Kyiv, got regional status and from now on it covers 3 Western Newly Independent States-Ukraine, Moldova and Belarus. Our common strategy and co-ordination of efforts help to upgrade the role of Western NIS as increasingly important partners of the EU in managing irregular migration and improving protection of asylum seekers and refugees in the region. "

How often do refugees address UNHCR in Ukraine asking for assistance, and what does this assistance look like?

"Refugees and asylum-seekers resort to the UNHCR and our partners on daily basis. Through government and NGO partners the UNHCR runs programs in 15 out of 25 regions of Ukraine. These programs include legal counseling, medical, social and psychological assistance, support for primary and secondary education, vocational training and placing in a job, community services etc. For example, the HIAS Legal Protection Services Program, our partner legal service NGO in Kyiv City, provides over 600 consultations per month, mainly on refugee status determination and refugee legislation in Ukraine. The Rokada, the Kyiv-based NGO that runs social and community development programs, receives over 400 requests from refugees and asylum-seekers for social and material assistance monthly. "

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"There is a problem of identification of refugees and illegal migrants. What is this problem?

"There are refugees among the so-called illegal migrants. We should recognize and legalize them and there is a problem. They may fail to meet legal formalities for crossing the state borders. Often they cannot obtain valid travel documents (e. g. from a government that persecutes them); besides, visa regulations and border control restrict their movements. They often have to travel and cross borders illegally.

"To determine who is who, the refugee status determination procedure was introduced, which starts after a submission of a refugee application. If the Refugee Law is applied correctly, then people, who need protection (even if they entered the territory of Ukraine illegally), can obtain refugee status. In order to prevent abuse of asylum system by economic migrants, art. 12 of the Refugee Law can be used. It specifies a shortened 3-day procedure.

"Refugees should not be confused with economic migrants. This status should be granted only to those people, who cannot return to their countries because of grounded fears to become a victim of persecution because of their race, religion, citizenship, social status or political views and cannot enjoy the protection of this country. The situation of refugees fundamentally differs from that of economic migrants, who look for better economic conditions and can be returned to their home countries. "

Do you think it makes sense to grant refugee status to a person, who stays only temporary on the territory of Ukraine, because his/her destination point is England or Germany?

"Yes, if there is a choice between granting refugee status and deportation. A person is a refugee within the meaning of the 1951 UN Convention as soon as s/he fulfils the criteria contained in its refugee definition. This would necessarily occur prior to the time at which his/her refugee status is formally recognized, e. g. in governmental asylum procedures. Recognition of his/her refugee status does not therefore make him/her a refugee but declares him/her to be one. S/he does not become a refugee because of recognition, but is recognized because s/he is a refugee. And s/he remains a refugee within the meaning of the Convention even if the authorities of the country in which s/he abides do not recognize this fact. "

"And if a person initially wanted to get to the UK, it does not mean that s/he should be refused an asylum in Ukraine. A person tries and escapes someplace where s/he knows at least somebody. For example, in the UK his/her relatives or friends live. At times, people even don't know where they are, because they are brought to the Ukrainian Western border in inhuman conditions and left there in a forest, being told they are already in the Western Europe.

"People, who have been granted refugee status in Ukraine, do not necessarily wish to leave Ukraine and proceed further west. There could be three long-term solutions for refugees: local integration here, voluntary repatriation and resettlement to the third country if the first two solutions are impossible. But the latter is applicable only for a very small number of

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refugees. In case of local integration, if given a chance, refugees can significantly contribute to the development of a local society. Inevitably, the lack of prospect for local integration in first country of asylum will result in continuous movement further west. "

Obviously, you have to deal with the State Border-Guard Service and Ministry of Interior. Do you have their understanding of issues you are working on?

"Indeed, we work a lot with Border Guards and MoI both on central level and in regions. We continue providing technical, informational and training support in order to strengthen capacity of these institutions to deal with refugee issues and to distinguish between economic migrants and genuine asylum-seekers, which have legal right to stay in the territory of Ukraine. By the way, the State Border Guards Service and Ministry of Interior agree with us on the necessity to abolish the art. 9 of the Refugee Law. "

- Do you have good relations with the groups in the Verkhovna Rada dealing with refugee issues?

"The UNHCR enjoys long-established good relations with several committees and many members of the Verkhovna Rada. As opinion-leaders and decision-makers, they can promote respect for refugees among their constituents and encourage informed debate on refugee protection issues. As overseers of national budget appropriations, they can ensure that adequate and cost-effective funding is provided to the national refugee protection systems. As lawmakers, they can encourage Ukraine's accession to the 1954 Convention about the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. They can also design and adopt national refugee legislation that conforms to international law and standards, and oversee their implementation. "

In the past, SCNM sent to Regional Migration Services the Instruction on a work with refugees. You were not agree with it and addressed the General Public Prosecutor Office, which stated that this Instruction is unlawful. Did SCNM correct the situation?

"The State Committee for Nationalities and Migration (SCNM) issued a special Temporary Instruction on the interpretation of the art. 9 of the Refugee Law. It was circulated around all Regional Migration Services with an order to implement this article. It also allowed receiving of applications without proper documentation of the applicants. During one year we have been addressing SCNM with a request to change this Instruction. When the General Office of the Public Prosecutor initiated a review of the legality of this Instruction, they announced that some parts of the Instruction were not in accordance with the 1951 UN Convention and Refugee Law. As a result, SCNM introduced certain revised provisions into the Instruction in November 2003.

"Late in 2003 there were more than 80 court cases won by asylum-seekers rejected on the art. 9, who appealed decision

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of the migration services. It means that courts accepted the fact that refusals were unlawful and overruled. Therefore, rejected asylum-seekers were allowed to re-apply for refugee status determination procedure."

The UN Convention on the Status of Refugees was signed more than half a century ago. A question appears: does everything in it correspond to the spirit of the present times?

"The 1951 Convention relating to the Status of Refugees is the key legal document defining who is a refugee, refugee's rights and legal obligations of states. The 1967 Protocol removed geographical and temporal restrictions from the Convention. These instruments remain the corner stone of the international refugee protection. It is widely credited with saving countless lives and ensuring means of escape for people facing imprisonment, torture, execution and other human rights abuses for reasons such as their political or religious beliefs, or membership in a particular ethnic or social group.

"The Convention marked its 50th anniversary on 28 July 2001 and the continuing validity of it has been publicly questioned in some quarters. This concerns UNHCR and aid agencies involved with refugees who feel that politics are being played at the expense of the Convention and, therefore, of the refugees it protects. The reasons behind these doubts on the Convention appear to be linked primarily to the rising number of asylum-seekers, the increase in people-smuggling networks, the perception that the majority of asylum-seekers are "bogus, " and the high costs involved in maintaining asylum systems.

"In response UN High Commissioner for Refugees Ruud Lubbers said "These concerns are understandable, but the critique of the Convention tends to ignore some vital basic factors. Firstly, the main reason the numbers soared was that there were three major wars in Europe during the 1990s, in addition to numerous other conflicts around the world. Secondly, the whole point of the Convention is precisely to make the distinction between those who need the international protection that official refugee status affords, and those who do not. That doesn't mean there's anything wrong with the Convention. Quite the contrary. "

"The unprecedented ministerial-level meeting of 156 countries in Geneva in mid- December 2001 had reaffirmed the "relevance and resilience" and "enduring importance" of the 1951 Refugee Convention. Thus the international community overwhelmingly reaffirmed its commitment to the 1951 Convention. Despite their continued relevance, however, the Convention and the Protocol cannot address all the pressing issues pertaining to refugee protection in today's changing world. For this reason, the UN High Commissioner for Refugees has launched the "Convention Plus" process. He has explained that the "Plus" will be "a number of special agreements aimed at managing the refugee challenges of today and tomorrow in a spirit of international cooperation. "

There are 190 member-countries to the UN, and only 144 signed the Refugee Convention. Almost 50 countries didn't sign this Convention. How can you explain this?

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"Compare to other UN Conventions a 3/4 rate of ratification is not bad at all. Every year more countries sign the 1951 Refugee Convention. "

And, finally, there is a question: for how long are you dealing with refugees' issues?

"I have been working for UNHCR since 1977. During the last 26 years I have seen various refugee situations around the world - in Canada, South Africa, Thailand, Pakistan, Angola, and Vietnam. Also worked in UNHCR HQ in Geneva, Switzerland dealing with emergency situations, training of staff, programme and finance management."

Taking into consideration your personal experience, I would like to know: which steps should Ukraine take in a close future in order to improve its work with refugees?

"First, I would like to encourage Ukraine to positively amend the Refugee Law, including total abolishing of the art 9. Also Ukraine needs to improve the actual implementation of their commitments provided by various legislative instruments. Refugees should have effective access to national services (medical care, education, vocational skills training, assistance in employment, registration of birth and marriages, social benefits etc.) not only on paper, but also in practice. Local integration is one of the durable solutions for refugees and the government has to allocate some the resources for this purpose while dealing with other economic priorities.

"At the same time we recommend to continue harmonising national legislation with the 1951 Refugee Convention and other international commitments and standards it has committed itself to uphold. In order for recognised refugees to enjoy the economic, social and cultural rights of refugees, foreseen in international treaties and Art 20 of the Law of Ukraine on Refugees, another 45 Laws would also require small amendments. These would include the Law of Ukraine on the Legal Status of Aliens, the Law on Population Employment, the Law on Business Undertakings, the Law on Education, the Law on State Social Assistance to not Sufficiently Provided Families, the Law on Pension Security, the Dwelling Code of Ukraine, and the Labour Code.

"Like most other European countries, for humanitarian reasons and those of public security, Ukraine should be interested in designing legislation that would allow it to grant humanitarian stay to those aliens, who require the protection of Ukraine for reasons not provided for under the 1951 Refugee Convention and the Refugee Law.

"In addition to its mandatory functions regarding the international protection of refugees, UNHCR is active on behalf of stateless persons and advises countries regarding the reduction and prevention of statelessness. In this context the UN General Assembly requested UNHCR to promote accessions to two related important UN instruments, namely the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Recently Ukraine decided positively on accession to the 1997 European Convention on Nationality and I would like to

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encourage to positively consider also an accession to these two conventions.

"I hope that Ukraine will continue to increase state budget allocations to refugee protection and migration management activities - parallel with the overall economic and social development of the country - until they will finally be sufficient to ensure an adequate implementation of Ukraine's needs and commitments.

"Encouraging this, UNHCR remains committed to assisting Ukraine, with its own limited resources, as well as to raise the awareness of other international organisations and donors to respective needs of Ukraine, which they may wish to address in the spirit of international burden-sharing and solidarity. We also can provide information on relevant international laws and practice, expert analyses of current legal inconsistencies and identification of gaps in Ukrainian legislation, comments on and draft wording for relevant draft laws. "

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