Convention Relating to the Status of Refugees, 1951

Download PDF Document

MIXED MIGRATION MOVEMENTS AND HUMAN RIGHTS AT THE EASTERN EU BORDER


The only real border dividing the present eastern and western world may be stated to run along the future EU eastern states on the one side - and Belarus, Ukraine and Moldova on the other. Transit from west to east is as quick and easy as it is difficult the other way round. However, public representations of everyday border experience are filled with general reports of stopped goods or individuals, and thus offer little explanation on what actually happens to those who try to cross the border irregularly, for whatever reason. Detention? Human rights? Legal limbo? Deportation?
 
Our UN jeep follows the car of the border guard Major deep into a forest near a small western Ukrainian town called Mukachevo, from the castle hill of which one has a view of three EU countries bordering Ukraine: Slovenia, Hungary and Poland. We stop and exit the car at a high gate. It is summer and the temperature has risen to 35°C. We are requested to tell our names and positions to the guards and to follow the Major then. Entering the territory of the “Pavshyno,” a closed detention centre for irregular migrants we are fixed by some hundred pairs of eyes at once.
The detainees are of very diverse origin, from all kinds of African and Asian countries - having arrived in the Ukraine most likely from Russia, they all tried to cross the border into the EU and got apprehended.
The visible centre territory probably covers approximately 300 sqm. We step into the dormitories to the right closely observed by Afghan, Iraqi, Iranian, Arab, Bangladeshi, Indian, Somali, Egyptian, Eritrean, Tai and Chinese faces. All male irregular migrants are required to stay here, except for the ones originating from the former Soviet states – those are kept in a separate detention.
Migrants from different cultural regions are located in respectively different premises to maintain the possibility of practicing religion. All rooms are small but tidy; there are three to five double beds in each of them, yet, little space, even when they are empty. Major Tsyviljov explains that there has been much effort put into the renovation of the buildings – financed by international organizations and run on a voluntary basis by a unit of border guards in cooperation with local NGOs.
As we walk on, we see a group of border guards, about 20 altogether, constructing several additional outside showers for the 500 odd detainees... Other premises follow. Here medical and legal aid can be given – NGO lawyers and doctors have fixed reception hours several times a week.
Nearby we visit the newly built washing and sanitary rooms and the dining hall – at that moment being swiftly swept by four Chinese, whose turn it was to do so, the guards told us. The food is cooked in a big black wood stove outside in the yard.
By the time we come to observe the break room with a TV set, the migrants have found out who we are and surrounded the United Nations High Commissioner for Refugees (UNHCR) Regional Representative Ms. Simone Wolken asking her questions and telling their plights. No special complains are given voice to, apart from the one about the local migration service that takes too long to process the asylum application documents.
On our way out we have a look at a sports playground in the middle of the centre’s territory and at the distribution process of sanitary articles and rations of food from the back of a Caritas truck.

The overall human rights situation can be graded satisfactory in that detention centre, apart from the space factor. Both the male detention centre as well as the closed dormitory for women and children in Mukachevo is over-crowded to an extent that turns reparation and recapitalization there into quite a hopeless activity. The Ukrainian state lacks money to finance migration management and though international organizations, usually in cooperation with the European Commission, readily invest into new detention premises, the subsequent long term procedures of legal ownership transfer - from the donor to whichever part of the Ukrainian government - cause both sides considerable headaches.

Every individual that has been stopped while trying to cross the border without a valid visa - either on his own, or conveyed by a local “guide”, or trafficked - is apprehended as an irregular migrant. Step two is identification: according to the passport, if the person possesses ID documents, otherwise in cooperation with the embassy. Identified persons have the choice to repatriate voluntarily (assisted by the International Organization for Migration) or to be deported back to their country of origin by the state of Ukraine.
However, usually irregular migrants decide to conceal their identity, which means that they remain kept in detention for 180 days and are set free then. Most often they try to cross the EU border again sooner or later, get detained anew, and the circle continues.

Backed by the vivid discussion on potential terrorists and the consequential demonization of irregular migrants, one is apt to lose sight of the fact that there always is a serious cause to make a person take courage to leave his home country, his family and his belongings, in order to risk his life by being trafficked to a place in the world, where he hopes to be able to earn enough money to improve livelihood and to live in dignity. The answer to the question why this person has decided to emigrate for economic reasons lies in the basic inequality of the world’s states – with irregular migration being a long-term consequence of colonialization and globalization. Although the person breaks the law by trying to transit illegally one should always keep in mind the real dimensions and the causes of this act.  

Ukraine, Belarus and Moldova – none of these countries may appeal to migrants as final destination states. None of them are able to offer satisfactory social or legal conditions to immigrate and settle down. Nor can they grant proper protection to certain particularly vulnerable individuals often transiting with the entire movement of irregular migrants: persons who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” flee their country of origin to seek refuge on the territory of a more tolerant and peaceful country or region.
Asylum seekers, refugees, and uprooted persons that travel on after being displaced due to a conflict inside their home country, as well as economic migrants, make up today’s mixed migratory pattern - within which it becomes increasingly difficult to distinguish between the various groups on the move. Hence, in order to comply with human rights conventions, the treatment at the border has to be clearly specified with regard to the individual situation.
If a person has entered the territory of a state, regardless of whether they have done so regularly or irregularly without visa and ID documents, or whether they has even been trafficked or smuggled in – during the first conversation after apprehension they must be informed of the possibility and the procedure of applying for asylum. Once the person has chosen to apply, the border guards transfer the application to the migration service responsible, which then issues a respective ID document - and the person is set free.

However, if a person has been stopped, say, on the Polish (i.e. the EU) side after having crossed the border illegally, and it is possible to trace back the country he passed through last, the person is returned to that country in accordance to valid readmission agreements. Many non-EU countries (including Belarus, Ukraine and Moldova) have signed up to broad readmission obligations to the EU with little in return. Displaying seriously over-crowded detention centres Ukraine boldly illustrates this unbalanced policy. With an open border to Russia the complete workload of dealing with individuals, both expelled from the west and coming in from the east, remains with the border guard services of the western Ukrainian Transcarpathian region.
Having asked for refuge status and being released from temporary detention at the border in Ukraine, an asylum seeker needs to be accommodated - in theory - as long as the migration service (and finally the respective government committee) decides upon his individual case. Reality reflects this assumption in broken glass: so far there is none but one operational temporary accommodation centre (TAC) for refugees and asylum seekers in the whole country - located in Odessa/ at the Black See. The TAC is constructed for 250 inhabitants; yet, in fact, it accommodates half the number, due to not being able to offer winterization and a lack of capacity to provide basic supplies. With about 1300 asylum applications a year most refugees are compelled to subsist themselves and their families on their own. Finding and organizing compatriot refugee communities, like the Uzbek or the Chechen community in Kyiv or the Somali community in Vinnytsja, is frequently enough a necessity in order to survive.

A high level of state and administrative system corruption combined with a negative perception of the irregular migration phenomenon and broad xenophobic tendencies constrain refugees to stay within much narrower borders than the ones of the state’s territory, regularly pushing them into vicious circles - for instance: to gain legal status in the country, an asylum seeker needs to find a permanent place to stay. As no social dwelling exists in Ukraine, he needs to rent a private room or apartment. [Border # 1: to find a person ready to let his premises to someone with a dark skin and an irregular income.] Moreover every foreigner has to take his landlord to the office of the local Ministry of Interior registration authority called “OVIR”. There the landlord has to state and sign regularly that the certain tenant (still) resides in his premises. [Border # 2: to find a person ready to go through this procedure every three months. Additionally a registration at OVIR office quite always means a notification within the state revenue authorities. As most apartments are rented out without paying taxes, registration is an additional barrier]. Arriving at the OVIR office landlords have repeatedly been talked or threatened out of letting their apartment to foreigners of  “unclear origin, social conditions and political intentions”. [Border # 3: again – to find a leaser ready to firmly hold on to his intent]. If the landlord rejects at one of the stages, the asylum seeker can still obtain the OVIR stamp that makes his certificate valid for a certain period of time - thus making his stay legal and lowering arrest and deportation probability - if he is able to bribe the official and support corruption by paying 100 USD.  

A constant fear of deportation - or in terms of refugee protection: refoulement - remains to a great extent part of the daily life of asylum seekers in Ukraine. Little has changed since the worldwide outcry in mid February this year - caused by the refoulement of ten Uzbek nationals that had fled the regime of Islam Karimov after the 2005 Andijan massacre. The young men were arrested and retuned by force to their country of origin the very night after applying for asylum at the Crimean migration service. This incident clearly indicates that high-level authorities of the former soviet states hold information and expulsion mechanisms far above national law, international obligations and human lives, explaining this by the generally enhanced terrorism combat. So, going along with the continuing investigations, protests and open letters to both governments by Amnesty International and other human rights NGOs, the Ukrainian officials accused to have facilitated that deportation still keep their positions and the fate of the refouled remains unclear.

Around 5000 persons are deported from Ukraine every year: 2000 to Asian countries and 3000 to countries of the former Soviet Union.
On the one hand Ukrainian authorities regularly fail to afford migrants and asylum seekers basic procedural documents, as migration services are often under-staffed, lacking competency and state funding, which results in the return of persons to states they had fled because they feared to become subjects of persecution and to the risk degrading treatment and torture.
On the other hand there obviously exist special internal instructions on who is to be granted asylum and who is not. In the light of this, the situation of Chechen nationals is particularly alarming. With the new law “On Refugees”, coming into effect in 2001, Ukraine’s recognition rate of Chechen refugees has equalled 0%. The equivalent to Russia granting asylum to ethnic Chechens would mean for Ukraine to acknowledge that civilians in that region do fear persecution and inhuman treatment by the Russian sate, which would condemn the US and the Russian unison position of dealing with potential terrorists (in Guantanamo and Chechnya respectively) according to arbitrary self-imposed law, ignoring the Geneva Conventions. Hence, Chechen families aiming to enter Ukraine are removed from buses and trains on the Russian side to the border, though it is considered to be open. A UNHCR implementing partner in Mukachevo, the NGO “NEEKA”, reports that their lawyers have no access to irregular migrants from Chechnya kept in the Chop detention facility - as a matter of fact there would never be any Chechen present there at all. On this basis international organizations assume that deportations must take place very soon after detention. UNHCR is currently putting much effort into shedding light on this issue and negotiating revised refugee recognition treatment with third countries, where the most vulnerable Chechens could be resettled.

However, in this particular case, as in every case, where human rights need to be upheld, the activities required are persistent public interest and inquiry.

Olga Charitonova, Kyiv /Ukraine and University of Constance, Faculty of Politics and Management Science

ORGANISATIONS


MOVIE TIPS


BIBLIOGRAPHY