Recently, the problem of emigration of Ukrainians abroad has been actively discussed on social networks and the media. In this aspect, another topic is also touched upon - immigration of foreigners to Ukraine. In 2016 alone, the State Migration Service processed 18,000 applications for immigration permits to Ukraine. Cases of refusals to grant such permission have increased. Consider the causes and consequences of refusing to obtain a permit to immigrate to Ukraine, as well as ways to restore violated rights.
Recently, the problem of emigration of Ukrainians abroad has been actively discussed on social networks and the media. In this aspect, another topic is also touched upon - immigration of foreigners to Ukraine. In 2016 alone, the State Migration Service processed 18,000 applications for immigration permits to Ukraine. Cases of refusals to grant such permission have increased. Consider the causes and consequences of refusing to obtain a permit to immigrate to Ukraine, as well as ways to restore violated rights.
The Law on Immigration of June 7, 2001 establishes a list of grounds for refusing to obtain an immigration permit: the permit is not granted to convicts sentenced to imprisonment for a term exceeding one year; persons who have committed crimes against humanity, a serious crime or are suspected of committing a crime; persons suffering from alcoholism, drug addiction, drug addiction, infectious diseases; persons who, in their application for an immigration permit, provided knowingly false information or submitted forged documents; persons banned from entering Ukraine; in other cases provided by the laws of Ukraine.
It is important to note that the State Migration Service body often does not substantiate the reason for refusal in its decision, although it must refer to the specific circumstances on the basis of which the applicant receives the refusal.
Also, the Law "On Immigration" established the right of refusal "in other cases provided by the laws of Ukraine." Such cases are provided exclusively by the law of Ukraine, and not by other normative legal acts: procedures, instructions, decrees, etc.
During the proceedings on applications of foreigners, according to the Procedure for the formation of the immigration quota, approved by the Cabinet of Ministers of Ukraine on 26.12.2002, the migration service sends inquiries to the regional body of the Security Service of Ukraine, Ukrburo Interpol and the State Border Service to identify persons .
Often the information of these bodies is the only reason for refusing to grant an immigration permit to Ukraine. It is important to note that such information is for guidance only and cannot be an independent ground for refusing an immigrant. First, because the list of such grounds is clearly defined by the Immigration Act, and not by any other legal act or government agency. Secondly, this position is taken by the subjects of power, who during litigation refer to the non-binding nature of the information provided, thus relieving themselves of responsibility and assigning it to the migration service. In addition, the recommendatory nature of the information has been repeatedly confirmed by case law.
Based on the collected information, the body of the state migration service makes a decision: to allow or deny. If a negative decision is made, the consequences are disappointing. In addition to the actual refusal, a foreigner may re-apply for an immigration permit no earlier than one year after such a decision.
Given the one-year period of consideration of the application for an immigration permit, as a result of the refusal, the foreigner is deprived of the right to immigration for up to two years. An important way to restore the right to immigration to Ukraine and cancel the decision to refuse is to appeal the decision of the migration service in court.
During court proceedings, the migration service provides production materials. It is necessary to carefully study the documents that became the basis for refusal. If there are no legal grounds, the issue of recognizing the decision to refuse to grant an immigration permit to Ukraine is illegal, as well as to oblige to reconsider the plaintiff's application. Now the body of the migration service will be bound by the conclusions of the court and is not entitled to make a negative decision on the same grounds. In addition, the re-examination of the application obliges the migration service to take a decision immediately on the basis of the available materials.
The latest example from my practice is the denial of permission to immigrate to Ukraine to a Lebanese citizen. In the decision, the migration service without undue specification referred to the client's indication of allegedly false information in the application or in the submitted documents. At the hearing, it became clear that the grounds for refusal were the recommendations of the Security Service of Ukraine. The court requested materials from the SBU and found that the reason for the recommendation was the absence of a client at the place of residence in Ukraine. In court, we proved: a) no one is obliged to wait for the visit of an SBU officer during the year at the place of residence; b) no normative act provides for such a rule. And most importantly - the migration service has not answered the question, what documents were forged? The court overturned the decision of the migration service and ordered to reconsider the client's application for an immigration permit to Ukraine.
Thus, in litigation appeals against decisions of the migration service, a properly formed position on the case plays an important role. The court must emphasize the lack of legal grounds for refusal and the need to restore the violated right to immigration to Ukraine.
