On January 22, 2024, the President of Ukraine submitted to the Verkhovna Rada of Ukraine the Bill “On Certain Issues in the Field of Migration Regarding the Grounds and Procedure for Acquiring and Terminating Citizenship of Ukraine” (Reg. No. 10425) (hereinafter – the Bill), which was designated as urgent.
As stated in the Explanatory Note to the bill, the purpose of its adoption is “to update the provisions of legislation in the field of migration, citizenship, in particular the grounds and procedure for acquiring and terminating Ukrainian citizenship, as well as to improve the legal regulation of issues related to the legal status of foreigners and stateless persons who, as part of the Armed Forces of Ukraine and other formations established in accordance with the laws, participate in the protection of the independence and territorial integrity of Ukraine, as well as members of their families.” As of February 12, 2024, the Verkhovna Rada Committee on Human Rights, Deoccupation, and Reintegration of the Temporarily Occupied Territories of Ukraine, National Minorities, and International Relations, which was designated as the main committee for consideration of this bill, issued a conclusion recommending that the Verkhovna Rada of Ukraine include the bill in the agenda of the session and adopt it as a basis for the first reading.
After reviewing the provisions of the bill and generally supporting the idea of the need for a comprehensive improvement of the current legislation on migration and citizenship of Ukraine, the Coalition of organizations working to protect the rights of persons affected by the armed aggression against Ukraine expresses its comments on the proposed innovations of this legislative initiative regarding the acquisition or loss of Ukrainian citizenship, as well as changes to the legislation on immigration and the rights of foreigners and stateless persons.
(1) Acquisition of Ukrainian citizenship
If the Verkhovna Rada of Ukraine adopts the bill and amends the Law of Ukraine “On Citizenship of Ukraine”, certain categories of stateless persons, children born on the territory of Ukraine to parents who are stateless or recognized as stateless in Ukraine, and children born on the territory of Ukraine to parents who are recognized as persons in need of complementary protection lose the right to acquire citizenship by birth (Article 7) or by territorial origin (Article 8), which they have in accordance with the Law of Ukraine “On Citizenship of Ukraine”. Also, children born on the territory of Ukraine to parents who have applied for recognition as refugees or persons in need of complementary protection (children of asylum seekers) lose the right to acquire citizenship by territorial origin (Article 8), which they have in accordance with the current Law of Ukraine “On Citizenship of Ukraine”. Such a deterioration in the situation of children born on the territory of Ukraine would contradict Article 22 of the Constitution of Ukraine, which states that when adopting new laws or amending existing laws, it is not allowed to narrow the content and scope of existing rights and freedoms.
In addition, the legal regulation set forth in the draft law is a violation of Ukraine’s international obligations to eradicate statelessness and Article 1 of the 1961 Convention on the Reduction of Statelessness, according to which a State shall confer its nationality on a person born in its territory who would otherwise be stateless. The obligation of the state to cover all children at the time of their birth, regardless of the residence status of the child or their parents, is also indicated by the UN Human Rights Committee, which has twice (in 2011 and 2022) recommended that Ukraine amend its legislation to provide legal and practical guarantees of the right of the child to nationality (citizenship) and the right not to be deprived of it on any grounds and regardless of the status of the child’s parents.
In addition to changes to the acquisition of citizenship by territorial origin, the draft law in the new version of part 3 of Article 8 of the Law of Ukraine “On Citizenship of Ukraine” proposes to introduce exams on the fundamentals of the Constitution of Ukraine, the history of Ukraine, and to determine the level of proficiency in the state language. This may significantly affect the ability of stateless persons recognized in accordance with Article 6-1 of Law of Ukraine No. 3773-VI to be admitted to Ukrainian citizenship, as most of these persons belong to vulnerable categories of society, mostly lacking any education, which results in illiteracy. This situation has arisen, in particular, due to the long-standing lack of a legal mechanism for regulating the status of stateless persons in Ukraine. Such persons have lived in Ukraine for decades without any documents, have not had access to education, and have not been integrated into Ukrainian society. The proposed changes may become a significant obstacle to their acquisition of citizenship.
(2) Adoption of Ukrainian citizenship
The bill proposes to abolish such grounds for refusal of citizenship as committing a crime against humanity or genocide. Instead, the bill proposes to define a person “who poses a threat to national interests, national security, protection of public order, sovereignty and territorial integrity of Ukraine” as not being granted Ukrainian citizenship. This ground is formulated in violation of the principle of legal certainty since neither the bill nor the current legislation of Ukraine contains an interpretation of the concept of the above-mentioned person or criteria for determining such a threat. The lack of clear definitions may lead to unlimited discretion and, as a result, may facilitate arbitrary interpretation of the content of the grounds for prohibiting the adoption of Ukrainian citizenship, which could potentially create significant corruption risks.
In the Report of the Venice Commission No. 512/2009 “On the Rule of Law” (The Rule of Law Checklist) adopted at the 86th plenary session on March 25-26, 2011, the Venice Commission outlining key aspects of the rule of law, concluded that decisions on legal rights should be based on clear and understandable rules of law, not on will or discretion.
Thus, the lack of specification and evaluation of such grounds for refusal of citizenship contradicts the rule of law principle enshrined in Article 8 of the Constitution of Ukraine.
(3) Termination of Ukrainian citizenship
The bill proposes to consider as one of the grounds for termination of citizenship “voluntary acquisition by a citizen of Ukraine of the citizenship of a state recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state, or citizenship (nationality) of another state that is not defined as a state whose citizens (nationals) acquire Ukrainian citizenship under a simplified procedure, if at the time of such acquisition he or she has reached the age of majority.” At the same time, the voluntary acquisition of citizenship of another state is considered to be “all cases when a citizen of Ukraine had to file an application or petition for such acquisition…, except as provided for in part six of Article 5 of the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”.
The relevant provisions do not take into account the interests of Ukrainian citizens who live in the temporarily occupied territories and are forced to apply for citizenship of the aggressor state for physical survival and exercise of their rights and freedoms.
First, this exception does not cover all practices of imposing Russian citizenship on the temporarily occupied territory of Ukraine. Thus, according to part six of Article 5 of the Law of Ukraine, “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine,” the forced automatic acquisition of Russian citizenship by Ukrainian citizens residing in the temporarily occupied territory is not recognized by Ukraine and is not a ground for the termination of Ukrainian citizenship. At the same time, Ukrainian law does not define the concept of “forced automatic” acquisition of Russian citizenship. This creates a situation where this provision of the Law may apply to the non-recognition of citizenship obtained in the temporarily occupied territory of Crimea (where the imposition of citizenship by the Russian Federation took place in this manner) but does not actually cover the practice of forcing Russian citizenship in the occupied territories of Donetska and Luhanska oblasts, which included the transfer of Ukrainian citizens to the territory of the Russian Federation for the purpose of issuing Russian passports.
Secondly, it is impossible to discuss the voluntary nature of acquiring Russian citizenship under occupation when the aggressor country uses various means of intimidation and coercion to force Ukrainian citizens living in the temporarily occupied territory to obtain Russian citizenship. This includes restrictions on freedom of movement, social and medical assistance, deprivation of property ownership, and, ultimately, the threat of expulsion as a foreign citizen. Such actions of the aggressor country constitute a violation of Article 45 IV of the Convention on the Laws and Customs of War on Land and its annex, which prohibits forcing the inhabitants of the occupied territory to swear allegiance to the enemy. This prohibition covers both the military oath and the transfer of citizenship.
Although the Russian Federation tries to imitate the voluntary nature of citizenship by maintaining formal procedures (e.g., by requiring an application, sometimes by videotaping the recitation of the Russian oath), these procedures have nothing to do with the procedures designed to ensure the right to voluntary acquisition of citizenship. Therefore, submitting an application for a passport cannot be a sign of the voluntary nature of the acquisition of Russian citizenship in the temporarily occupied territory of Ukraine, even if it occurred with the submission of an application.
(4) Amendments to the provisions of the Law of Ukraine “On Immigration” dated June 07, 2001 No. 2491-III (hereinafter – Law No. 2491-III)
The bill stipulates that an immigration permit outside the quota is granted to “one of the spouses if the other spouse is a perished (deceased) citizen of Ukraine, a military serviceman…”. The proposed wording of Law No. 2491-III in terms of paragraph 1-1 of part 3 of Article 4 leaves out children/parents of perished (deceased) servicemen, despite the fact that they all belong to relatives of the first degree of kinship, and therefore, their non-inclusion in the above list creates conditions of uncertainty in the legal status of these categories of persons in Ukraine. At the same time, given the intensity of the hostilities unfolding on the territory of Ukraine, we believe that an immigration permit outside the quota should also be granted to a spouse/children/parents if a Ukrainian citizen is declared missing or declared dead by a court.
It is worth noting that the categories of servicemen whose death (demise) gives rise to the possibility of immigration outside the quota do not include servicemen of the National Guard of Ukraine, which is inconsistent with the provisions of paragraphs 9, 10 of part 2 of Article 4 of Law No. 2491-III, which provide enhanced legal protection to this category of persons. Similarly, taking into account the above comments, the provisions of the bill regarding amendments to paragraph 16 of part 7 of Article 9 of Law No. 2491-III require significant revision.
Please note that the provisions of the bill stipulate that certain categories of foreigners and stateless persons who are eligible for an immigration permit may “submit a passport document that has expired or needs to be replaced (except in cases of changes in the person’s personal data)”. These and similar provisions of the draft law carry the risk of a broad interpretation of both the content of personal data and the cases of their change, which contributes to legal uncertainty and vulnerability of the legal status of foreigners and stateless persons. A similar comment is made with regard to paragraphs 21 and 24 of Article 4 of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” No. 3773-VI of September 22, 2011, as amended by the bill.
(5) Amendments to the provisions of the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons” No. 3773-VI dated September 22, 2011 (hereinafter – the Law of September 22, 2011 No. 3773-VI)
The bill proposes to deprive foreigners and stateless persons referred to in part 17 of Article 4 of the Law No. 3773-VI, namely persons regarding whom a decision to terminate Ukrainian citizenship was made or regarding whom a decision to formalize the acquisition of Ukrainian citizenship was canceled, of the right to obtain a permanent residence permit, which is guaranteed by part 2 of Article 5 of the Law No. 3773-VI. It is worth noting that according to paragraph 3 of part 16 of Law No. 3773-VI, foreigners and stateless persons who, within 30 days from the date of the decision to terminate Ukrainian citizenship or cancel the decision to formalize the acquisition of Ukrainian citizenship, applied for an immigration permit, are considered to be temporarily legally residing in Ukraine.
It is worth noting that the Constitutional Court of Ukraine in its Decision No. 5-r/2018 dated May 22, 2018, referring to Article 22 of the Constitution of Ukraine, noted that in accordance with paragraph 1 of part one of Article 92 of the Constitution of Ukraine, the laws of Ukraine exclusively determine human rights and freedoms, guarantees of these rights and freedoms. However, when defining them, the legislator can only expand, not narrow, the content of constitutional rights and freedoms and establish mechanisms for their implementation. Thus, the provisions of part three of Article 22 of the Constitution of Ukraine should be understood in such a way that when adopting new laws or amending existing laws, it is not allowed to narrow the content and scope of existing constitutional human rights and freedoms, if such narrowing leads to a violation of their essence.
Given these shortcomings, the bill “On Certain Issues in the Field of Migration Regarding the Grounds and Procedure for Acquiring and Terminating Citizenship of Ukraine” (No. 10425) needs to be significantly revised. If adopted in the current version, the draft law will create significant risks of violations of citizenship rights for residents of the temporarily occupied territory of Ukraine, as well as stateless persons, their children, and children of asylum seekers in Ukraine.
February 14, 2024
Right to Protection CF
ZMINA Human Rights Center
Donbas SOS NGO
East SOS CF
Public Holding “GROUP OF INFLUENCE”
Crimea SOS NGO
CO “CF “Stabilization Support Services”
Crimean Human Rights Group