Ukrainian Migration Legislation
In recent years serious concern has been increasingly expressed in relation to the slowdown in the development and attraction of foreign investment into Ukraine. The lack of a clear and transparent migration policy can be named among a number of reasons stemming from general political and economic factors and causing this situation. The state is gradually making discrete steps to address existing gaps in this area. However, such steps are not as rapid as we might want them to be. Among priority tasks it is worth mentioning the content and direction of state migration policy, as well as the way to improve legislative and institutional maintenance of migration processes at state level.
According to Article 26 of the Constitution of Ukraine, foreigners staying in Ukraine on legal grounds enjoy the same rights and freedoms and bear the same responsibilities as citizens of Ukraine with those exceptions established by the Constitution, laws or international treaties to which Ukraine is a party. Particular features of realization by foreigners of their rights in Ukraine are foreseen specifically under laws and regulations.
The aim of this article is to draw attention to the most common practical issues arising in connection with the stay of foreigners in Ukraine.
Registration of Foreign Nationals
First of all, attention must be drawn to the rules on the entry of foreign nationals and the conditions of their stay on the territory of Ukraine. This is especially so as, in accordance with the current legislation, the recipient country is responsible for the timely processing of documents for the stay and exit from Ukraine of a foreign national before the expiry of the period of authorized stay.
In accordance with Ukrainian legislation, foreigners and stateless persons who enter Ukraine legally may temporarily stay in the country on the basis of a passport registered in the established manner.
Registration of foreigners is carried out for a period of a short-term stay — for foreigners and stateless persons from countries that require visas to come to Ukraine registration it is made for the period of visa validity, but not to exceed 90 days within 180 days from the first day of entry, unless otherwise stipulated by international treaties; for foreigners and stateless persons from countries with visa-free entry procedure registration is carried out for a period not exceeding 90 days within 180 days from the first date of entry, unless otherwise stipulated by international treaties.
Registration of a foreigner in Ukraine is confirmed by an “Entrance” (“Exit”) mark stamped by the State Border Guard Service of Ukraine in a foreigner’s passport. The registration mark is valid on the whole territory of Ukraine.
Thus, a foreigner can legally stay in Ukraine for 90 days without additional registration in bodies of the Interior Ministry.
If there is a need for a foreigner to stay in Ukraine for more than 90 days, he must extend the period of his stay in Ukraine. To extend the period of registration the foreigner shall, together with the receiving party, submit a written application to the territorial division of the State department of Citizenship, Immigration and Registration of Natural Persons (hereinafter — Department) no later than three business days before the end of the period of registration.
The period of stay of a foreign person in Ukraine may be extended for the whole period of existence of the circumstances of his visit to Ukraine. In case of obtaining a work permit the term of stay of a foreigner may be extended for the period of validity of such work permit.
An essential fault of the above-mentioned method of extension of the foreigner’s term of stay in Ukraine is that in case of his departure from the territory of Ukraine the period of extension is considered expired. In other words, the registration of a foreigner in Ukraine expires in case of his/her crossing the border.
Work Permit
According to current Ukrainian legislation, the employment of foreigners by enterprises, institutions and organizations regardless of their ownership and management, as well as by foreign business entities operating on the territory of Ukraine, is possible only on the basis of work permits. Work permits are issued to foreign nationals for up to one year with subsequent renewal upon expiry.
The receipt of a work permit to employ foreign labor force requires the employer collecting and submitting a significant number of documents to the State Employment Center of the Ministry of Labor and Social Policy of Ukraine. Over the past six months the procedure and requirements of the documents have been altered in some way at legislative level. Therefore, the procedure itself has become more complex and time-consuming.
In particular, the most glaring novelty in the above-mentioned list of documents is the requirement to submit a police clearance certificate for the foreigner located in Ukraine on the date the work permit is executed. A certificate from the authorized body of the country of origin (stay) properly legalized by the consular offices representing interests of Ukraine evidencing that the foreigner is not serving a sentence for committing a crime and is not under investigation, must be submitted if the foreigner is located outside of Ukraine.
Specific requirements are set regarding the form of certain documents. Thus, violation will constitute submission by the employer of a copy of the document on the education and qualifications of the foreigner in case of improper execution of this document. According to the explanation of the State Employment Center, the document is deemed to be appropriate if a copy of it is certified in accordance with the laws of the country which issued the document, translated into Ukrainian and notarized.
In addition, a new procedure for executing work permits resulted in an increase in the state fee for consideration of work permit applications and is now equivalent to four minimum wages at the time of submission of the application to the State Employment Center.
It should be stressed that it is the obligation of the employer to obtain work permits for foreigners. Moreover, the employment of foreigners without the proper work permit involves administrative responsibility for the company and imposition of a fine.
Temporary Residence Permit
At present the best option as to legalization of the stay of foreigners in Ukraine is receipt of a temporary residence permit in Ukraine. The primary ground for obtaining such a permit is the work permit on the territory of Ukraine. Such a permit is issued to a foreigner for the term of validity of the work permit and may be renewed in the event of extension of the term of the latter. The main advantage of a temporary residence permit for a foreigner is that it will allow the latter to enter and exit the country an unlimited number of times during the duration of the work permit.
To get a temporary residence permit in Ukraine a foreigner shall, together with the employer, submit a written application and a list of required documents to the Department. Among the list of documents attached to the application, there are some which cause difficulties. For example, the medical certificate on AIDS, tuberculosis, a conclusion issued by narcologist. Obtaining this kind of information is generally associated with significant inconvenience.
Particular importance is attached to the lease agreement of residential premises signed by foreigners with a statement of the landlord certifying the landlord’s consent to temporary registration of the foreigner at the respective address. As long as obtaining a temporary residence permit provides for further temporary registration of the foreigner at the address specified in the lease agreement, one of the requirements is the approval of the landlord and all adult (18 years old) co-inhabitants registered in the respective premises to temporarily register the foreigner in the premises for the duration of a temporary residence permit of the latter. In practice, the vast majority of landlords of residential premises refuse to register foreigners, even for a well-defined term. This can be explained by major legal difficulties associated with further suspension of registration of the foreigner at the address of the leased premises. To solve this problem foreign nationals may need to be provided with living accommodation by their employers.
The Residence of the Family Members of Working Foreigner
According to the European Convention on Legal Status of Migrant Workers, which came into force in Ukraine on 01.10.2007, the wife (husband) of a working migrant who legally works in the contracting party, as well as unmarried dependent children of migrant worker are allowed, under conditions similar to those applied by the Convention to the admission of migrant workers and according to the procedure for admission as defined by the law or international treaties, to join a migrant worker on the territory of a contracting party, provided that the latter has accommodation for his family that is considered appropriate for employees — citizens of the recipient country, in the locality where the migrant worker intends to work.
For such cases, Ukrainian law provides the rule of registration of a foreigner’s family members in the Department. As a result, the term of registration of one of the spouses can be extended for the duration of a work permit of the other (spouse). It should be noted that there is no legal requirements to register family members under 18 years.
Residence of Foreign Employees Assigned to Work in Representative Offices of Foreign Companies
Individuals entering the territory of Ukraine as personnel of a foreign company’s representative offices shall be granted a business visa. This visa is issued on the basis of an invitation from a representative office.
Regarding the legality of stay in Ukraine of a foreign employee of a foreign company’s representative office, the Ministry of Economy of Ukraine issues to such individuals special service cards valid on the entire territory of Ukraine. Such a service card is proof of employment relationships between the foreigner and a representative office (similar to a work permit), but shall not be considered a document giving a foreigner the right to obtain a temporary residence permit and freely cross the border of Ukraine within the period specified by the latter.
General Conclusions
Analysis of current legislation and practice of its application proves the existence of systemic problems in migration management, particularly because of the long-standing lack of progress in solving them. In addition, Ukraine’s migration-related legislation needs to be improved to ensure compliance with international standards and best European practices. The conceptual uncertainty of Ukrainian state migration policy does not allow to increase the effectiveness of efforts to counter phenomena like illegal migration, outflow from Ukraine of the most skilled labor and intellectual potential, etc.
The result of the reform of Ukraine’s migration-related legislation must be successive solving of existing problems in the field of migration. In particular, establishing a new level of migration processes in the country; harmonization of national legislation on migration issues with international and European standards, improving the fight against illegal migration, adaptation and integration of migrants into Ukrainian society, etc.