As you know, according to the Laws of Ukraine "On the Legal Status of Foreigners and Stateless Persons", "On Immigration", foreigners and stateless persons on the grounds specified by this law can immigrate to Ukraine for permanent residence and obtain a permanent residence permit. They respectively receive an immigration permit and a permanent residence permit. But the law also establishes that the granted immigration permit and, accordingly, the permanent residence permit can be canceled due to certain circumstances.
Actually, this article is devoted to the analysis of the grounds and procedure for cancellation of permanent residence, based on a very extensive judicial practice in this area.
Foundations. So, according to Art. 12 of the Law of Ukraine "On Immigration", an immigration permit may be canceled if:
1) it turns out that it was provided on the basis of knowingly false information, forged documents or documents that have become invalid;
2) the immigrant is sentenced in Ukraine to imprisonment for more than one year and the court verdict has entered into legal force;
3) the actions of the immigrant pose a threat to the national security of Ukraine, public order in Ukraine;
4) it is necessary for the protection of health, protection of the rights and legitimate interests of citizens of Ukraine;
5) the immigrant has violated the legislation on the legal status of foreigners and stateless persons;
6) in other cases provided for by the laws of Ukraine.
One of the key points in this article is the phrase "can be canceled", which means that the competent authorities are not obliged, but have the right to cancel the granted immigration permit in the presence of certain circumstances that can be regarded as grounds for its cancellation. This will be discussed in more detail below.
Procedure. It is important to note that the cancellation of permanent residence follows a certain procedure established by law. Thus, the Resolution of the Cabinet of Ministers of Ukraine dated December 26, 2002 No. 1983 "On Approval of the Procedure for Forming an Immigration Quota, the Procedure for Proceeding on Applications for Granting an Immigration Permit and Applications for Its Cancellation and Implementation of Decisions" (hereinafter - Resolution No. 1983) established that an immigration permit canceled by the body that made the decision to grant such permission.
The initiators of the cancellation of the permit may be the State Migration Service (SMS), its territorial bodies and territorial subdivisions, the Ministry of Internal Affairs, the National Police bodies, the regional bodies of the Security Service of Ukraine, the Working Office of the Interpol Ukrburo and the State Border Service, or bodies that, within the limits of their powers, ensure the implementation of the legislation on immigration. They can initiate this issue if they become aware of the existence of grounds for revoking an immigration permit.
To make a decision to revoke an immigration permit in the event that the initiator of such a cancellation is the SMS, its territorial bodies or territorial subdivisions, they draw up a reasoned opinion indicating the grounds for canceling the permit, which is sent to the SMS body that made the decision to grant this permit.
In the event that the initiator of the cancellation of the immigration permit is another body specified above, for the adoption of an appropriate decision, this body draws up a substantiated petition indicating the grounds for canceling the permit. This application is forwarded to the body of the SMS, which made the decision to grant this permission.
The SMS, territorial bodies and subdivisions comprehensively study the application for the cancellation of an immigration permit within a month, request additional information from the initiator of the application, other executive authorities, legal entities and individuals, if necessary, and also invite immigrants in respect of whom it is being examined to give explanations this question. Based on the results of the information analysis, an appropriate decision is made.
The initiators of the procedure for canceling the permit for immigration and immigrants are notified of the decision in writing within a week.
The decision to revoke an immigration permit is sent within a week by the body that adopted it to the territorial unit at the place of residence to obtain a permanent residence permit from the immigrant. A copy of the decision is also sent to the State Border Service.
From the date of receipt of a copy of this decision, a foreigner is obliged to leave Ukraine within a month, and if during this time the foreigner has not left Ukraine, he is subject to expulsion in the manner prescribed by the legislation of Ukraine. In case of cancellation of an immigration permit in relation to a foreigner who was recognized as a refugee in Ukraine before the grant of the permit, he cannot be expelled or forcibly returned to a country where his life or freedom is threatened because of his race, nationality, religion, citizenship ( citizenship), belonging to a particular social group or political opinion.
In case of appeal by a foreigner in court of the decision to revoke the permit for immi
Grace, the term of his expulsion will be postponed until the entry into force of the court decision.
If we are talking about the expulsion of a foreigner who was sentenced to imprisonment in Ukraine, then he is obliged to leave the country no later than a month after serving the sentence.
Appeal. Every foreigner, along with citizens of Ukraine, has the right to protect their legal rights and interests by using all legal protection methods established by law. Thus, the decision of the SMS, territorial bodies and subdivisions, other executive bodies, which, within their competence, are obliged to ensure proceedings on immigration issues, as well as the actions or inaction of their officials and officials, can be appealed by a foreigner in court. It is important that in this case, the immigration proceedings are suspended pending the adoption of the appropriate court decision, that is, this provides a certain delay to the foreigner in leaving the country, even if there really are grounds for revoking the immigration permit.
What's in practice?
After analyzing the court decisions that were taken on the claims of foreigners to declare unlawful and cancellation of decisions to revoke an immigration permit, it can be concluded that often the migration service bodies do not act on the basis, within the powers and in the manner provided for by the Constitution and laws of Ukraine. Accordingly, most courts satisfy these claims.
Thus, the courts of Ukraine draw attention to the fact that the bodies of the migration service do not adhere to the procedure for cancellation established by law, or they misinterpret the grounds for such cancellation.
Often, the question of canceling an immigration permit is raised when a foreigner applies to the relevant authorities of the migration service to exchange a permanent residence permit due to reaching the age of 25 and 45, the unsuitability of a residence permit or to obtain Ukrainian citizenship. In these cases, the migration service authorities initiate a procedure for checking the legality of obtaining an immigration permit. Although, as indicated in some court decisions, the exchange procedure does not provide for, according to the procedure, verification of the legality of granting an immigration permit. So, in the Resolution of the Kiev Regional Administrative Court dated June 08, 2017 in case No. 810/1293/17, it was concluded that the Procedure for the registration, production and issuance of a permanent residence permit and a temporary residence permit clearly defines that the powers of the SMS deciding on the exchange of a residence permit is limited to checking only the grounds for such an exchange and the grounds for making a decision to refuse to issue a residence permit, provided for in clause 17 of this Procedure. Thus, the powers of the SMS body as a subject of power have clear restrictions, which boil down to the fact that when deciding on the exchange of a residence permit, he is deprived of the opportunity to assess the legality of the grounds for issuing an immigration permit in the absence of the grounds provided for in cl. 21-22 Order No. 1983. But judging by the numerous appeals of foreigners to the courts for the protection of their rights, the migration service does not favor the position of the judiciary.
The bodies of the migration service, as the courts note in their court decisions, do not comply with the procedures for making a decision to revoke an immigration permit. So, in a number of their decisions (Resolution of the Kiev District Administrative Court of December 30, 2016 in case No. 810/4276/16, Resolution of the Kiev District Administrative Court of May 4, 2017 in case No. 810/1292/17), the courts draw attention to the fact that the bodies of the migration service do not comply with the prescribed procedure regarding the need to submit an application by the initiator of the cancellation of the permit, which is the basis for starting the procedure for considering this issue. It is also noted that the bodies of the migration service, if there is an application within the established time limit, do not comprehensively consider it, do not request additional information from the initiator of the application, other executive authorities, legal entities and individuals, and also do not invite immigrants to give explanations regarding whom it is accepted. solution.
Quite noteworthy in this context is the ruling of the Kiev District Administrative Court of May 23, 2017 in case No. 810/916/16, which overturned the decisions to revoke immigration permits. By the way, this decision was upheld by the ruling of the Kiev Administrative Court of Appeal dated September 12, 2017, and at the moment, cassation proceedings have been opened in this case on the cassation appeal of the Migration Service Department. The plot of the case is as follows. In 2005, the competent authorities decided to grant the plaintiffs an immigration permit in accordance with paragraph 6 of part 2 of Art. 4 Law of Ukraine "On Immigration" as persons who are parents of an immigrant. By the way, their young son was an immigrant. Based on these permits, they were issued
permanent residence permits. In 2015, the plaintiffs applied for the acquisition of Ukrainian citizenship as a person whose term of uninterrupted legal residence in the territory is more than 5 years. The plaintiffs submitted all the necessary documents for this, but the head of the regional division of the migration service in the Kiev region decided to close the proceedings at their request. By this decision, the plaintiffs were informed that the case was returned to the UGMS of Ukraine in the Kiev region due to the fact that their immigration permits are subject to cancellation. In this regard, the plaintiffs appealed to the State Migration Service of Ukraine, to which they received a reply that the permits granted to them should be canceled due to the fact that they were issued not in accordance with the law. So, at the time of their receipt, their young son was not an immigrant, and did not even have proof of citizenship. An immigrant for the purposes of paragraph 6 of part 2 of Art. 4 of the Law of Ukraine "On Immigration" is an adult who submits a document stating that he is not against the immigration of his parents and can guarantee them financial support at a level not lower than the subsistence level established in Ukraine. At the end of 2016, the plaintiffs filed applications for the exchange of their permanent residence permits. Upon consideration of their application, they were denied an exchange. The legality of the issuance of immigration permits was checked, as a result of which decisions on their cancellation were approved for the above reasons. Thus, disagreeing with this conclusion, the plaintiffs decided to defend their rights by going to court.
The court, having analyzed the legislative norms, the actions of the authorized body, found that the issue of canceling the permit had not been comprehensively considered by the authorized body. Yes, he received explanations from the plaintiffs regarding the permits received, but he did not take into account either them or a number of important circumstances that could affect the decision.
Thus, during the inspection, the plaintiffs provided letters of recommendation from various public organizations, in which the plaintiffs are characterized as volunteers, participants in social and patriotic projects and patriots; active figures, initiators of uniting people for good deeds; as volunteers who help orphanages, boarding schools, vulnerable families; people who were involved in the events of the Maidan, systematically helping its participants, which suggests that they personally participated in the events that influenced the fate of Ukraine. The court noted that the circumstances set out in the letters of recommendation had not been duly assessed in the decision to revoke the permits.
The court also noted that the authorized body did not take into account that the plaintiffs have been living on the territory of Ukraine since 1997, have a residential building on the right of ownership, in which they live with their children. In Ukraine, the plaintiffs work and are engaged in charity work, they are fluent in the Ukrainian language. During the entire period of their residence on the territory of Ukraine, the plaintiffs did not violate the requirements of the current legislation of Ukraine, including on the legal status of foreigners, and did not commit crimes either. That is, the plaintiffs financially support themselves, their children, have a permanent job and housing. Also, the authorized body did not take into account the fact that one of their children is a citizen of Ukraine, and he studies and needs support, since in accordance with the legislation he falls under the category of disabled persons. This cannot in any way correlate with the consequences of the cancellation of the immigration permit, which provide for leaving the country within a month after the decision is made, since the interests and rights of the child to be provided and raised by parents are violated. Also, the authorized body did not have any evidence that the actions of the immigrant pose a threat to the national security of Ukraine, public order in Ukraine; evidence that the cancellation of an immigration permit is necessary for the protection of health, protection of the rights and legitimate interests of citizens of Ukraine.
By these actions, the authorized body violated its obligation regarding the comprehensiveness and completeness of obtaining information from various sources provided for by law (from the initiator of the application, executive authorities, relevant legal entities and individuals), which is necessary to resolve the issue of canceling the relevant permits.
The same conclusions were made by the District Administrative Court in its judgment of 20 September 2010 in case no. 2a-9944/10/2670. It noted that the bodies of the migration service, when deciding to revoke the permit, did not take into account the significant circumstances of the case, namely: the time spent on the territory of Ukraine, education, family relations, the presence of the whole family in Ukraine and the absence of any connection with the previous host country. Also, it was established that there was no petition from the initiator and the invitation of the immigrant to give explanations.
Thus, the courts note the formality and disproportionality of the decisions of the migration service to revoke the permits.
After all, Art. 12 of the Law of Ukraine "On Immigration" provides for the possibility of revoking an immigration permit in certain cases, and not an obligation to revoke it. Accordingly, this allows the authorized body to objectively assess the circumstances that are the basis for the possible cancellation of the permit, as well as the circumstances that occurred after the person received the immigration permit, and make a proportional decision with the necessary balance between any adverse consequences for the rights, freedoms and interests of the person and goals, to achieve which this decision is directed.
The need for proportional decision-making is due to both Ukrainian legislation and the practice of the European Court of Human Rights. According to the established practice of the European Court of Human Rights, the actions of the subject of power powers regarding the interference or restriction of human rights must be justified, lawful, necessary, and the interference proportional. The discretion of the authority of the authority should be minimized, and the logic of the authority's decisions should be clear and understandable, as well as the possible consequences of such actions. A person should not be held liable for mistakes committed by an organ of the state. The Code of Administrative Procedure of Ukraine indirectly regulates the issue of requirements for decision-making by state bodies. So, Art. 2 of this Code establishes that in cases of appeal against decisions, actions or inaction of subjects of power, the administrative courts check whether they have been adopted (committed): 1) on the basis, within the powers and in the manner determined by the Constitution and laws of Ukraine; 2) using the power for the purpose for which this power was granted; 3) reasonably, that is, taking into account all the circumstances that are important for making a decision (taking an action); 4) impartially; 5) in good faith; 6) prudently; 7) in compliance with the principle of equality before the law, preventing all forms of discrimination; 8) proportionally, in particular with the observance of the necessary balance between any adverse consequences for the rights, freedoms and interests of a person and the goals to achieve which this decision (action) is directed; 9) taking into account the person's right to participate in the decision-making process; 10) in a timely manner, that is, within a reasonable time.
The courts also note the issue of the guilt of immigrants, the establishment of which is important for making a decision to revoke an immigration permit, since only the guilty actions of an immigrant can be grounds for such a revocation. Immigrants cannot be deprived of the right to immigration in connection with a violation that occurred not through their fault, but were admitted by officials of the authorized bodies when issuing permits for immigration to Ukraine. The courts proceed from the fact that in the event that the bodies that perform the functions of making decisions on granting an immigration permit, at the time of consideration of the documents for its registration, did not present any comments regarding the documents submitted - their lack, forgery or their inconsistency with the established model or belonging to another person - and confirmed the correctness of these documents and the existence of grounds, having issued an immigration permit, immigrants cannot be held responsible for this decision by canceling their permit. Therefore, immigrants cannot be deprived of the right to immigration in connection with a violation that occurred not through their fault, but was committed by officials of the authorized bodies. As a result, persons who even received an immigration permit not on the established grounds are legally present on the territory of Ukraine all the time from the moment such permits were received. This interpretation of the situation is based on the practice of the European Court of Justice, which in its decisions emphasizes the importance of the principle of "good governance". It provides that when matters of common interest are involved, public authorities must act in a timely, appropriate and most consistent manner. In particular, government agencies are charged with introducing internal procedures that enhance the transparency and clarity of their actions, minimize the risk of error, and promote legal certainty. The principle of “good governance” should generally not prevent government agencies from correcting accidental errors, even those caused by their own negligence. Any other position would be tantamount to authorizing the misallocation of limited public resources, which in itself would be contrary to the general interest. On the other hand, the need to correct a past “mistake” should not disproportionately interfere with a new right acquired by an individual who relied on the legitimacy of a government agency to act in good faith. In other words, government agencies that implement or fail to comply with their own procedures should not be able to benefit from their wrongdoing or avoid doing their own thing.
languages. The risk of any mistake made by a government agency must rely on the government itself, and mistakes cannot be corrected at the expense of those affected. The principle of “good governance” imposes on public authorities the obligation to act urgently to correct their mistake.
The courts also note the erroneous interpretation of the grounds for the cancellation of immigration permits by the migration service.
A frequent reason referred to by the migration service authorities to revoke an immigration permit is the basis established in paragraph 6 of part 1 of Art. 12 Law of Ukraine "On Immigration". It lies in the fact that an immigration permit can be canceled in other cases provided for by the laws of Ukraine. For example, by these other cases, the migration authorities mean the following:
obtaining a permit for immigration in accordance with paragraph 6 of part 2 of Art. 4 Law of Ukraine "On Immigration" as the father, mother of an immigrant, despite the fact that the immigrant was a young child who had the right to citizenship. At the same time, a minor immigrant at the time of issuing an immigration permit to his parents did not have an immigration permit and could not guarantee financial support for parents immigrating to him (Resolution of the Kiev District Administrative Court of May 23, 2017 No. 810/916/16; Resolution of the Kiev District Administrative Court dated May 04, 2017 in case No. 810/1292/17; Resolution of the Kiev Regional Administrative Court dated June 08, 2017 in case No. 810/1293/17; Resolution of the Kiev District Administrative Court dated October 18, 2016 in case 810/2744 /16);
the immigration permit for the immigrant spouse, which was the basis for issuing a permit for the second spouse, was canceled (Resolution of the Kiev Regional Administrative Court of December 30, 2016 in case No. 810/4276/16);
obtaining an immigration permit in accordance with paragraph 2 of part 3 of Art. 4 Law of Ukraine "On Immigration" as a guardian of a citizen of Ukraine on the basis not of a court decision on his appointment as a guardian, but on the basis of a decision of the executive committee of the village council (Resolution of the Kiev Regional Administrative Court of December 30, 2016 in case No. 810/4131/16);
obtaining a permanent residence permit as a person who has an immigration permit in accordance with par. 4 p. 4 section V of the “Final Provisions” of the Law of Ukraine “On Immigration”, beyond a certain six-month period (Resolution of the Kiev Regional Administrative Court dated February 28, 2014 in case No. 810/977/14).
The courts consider that these circumstances do not fall under paragraph 6 of part 2 of Art. 4 of the Law of Ukraine "On Immigration" due to the fact that this clause determines that other cases of cancellation of an immigration permit should be provided for by the laws of Ukraine. But in their decisions on the cancellation of permits, the authorized bodies do not refer to the relevant legal provisions on the basis of which the issued immigration permits are to be canceled due to the above circumstances.
But the reference to clause 6 of part 2 of Art. 4 Law of Ukraine "On Immigration" is correct if, as of the date of obtaining an immigration permit and a permanent residence permit, a person, in the understanding of immigration law, does not qualify for the designation of an immigrant person, since he is a citizen of Ukraine by birth (Resolution of the District Administrative Court No. . Kiev dated June 01, 2016 in case No. 826/3689/16).
Clause 1 of Part 1 of Art. 12 of the Law of Ukraine "On Immigration" as a ground for revoking a permit, which consists in the fact that an immigration permit may be revoked if it turns out that it was granted on the basis of knowingly false information, forged documents or documents that have become invalid.
So, in the situation described in the Resolution of the District Administrative Court of Kiev dated July 30, 2015 in case No. 826/7267/15, the migration service authority did not substantiate what was the falsity of the information contained in the application for issuing an immigration permit by an immigrant, because he voluntarily, prior to making a decision to revoke the permit, informed the migration service that a mistake had been made when writing the application.
The District Administrative Court of Kiev, by its statement dated September 20, 2010 in case No. 2a-9944/10/2670, satisfied the immigrant's claim, stating that the migration service did not provide evidence that would justify the cancellation of the permit in accordance with paragraph 1 of part 1 Art. 12 Law of Ukraine "On Immigration". The Migration Service referred to the fact that the immigrant received permission as a brother of a citizen of Ukraine on the basis of the sister's passport, which, according to the results of an official check by the Ministry of Internal Affairs, was recognized as unreasonably issued. But the court indicated that the conclusion on these results is not a decision on the loss of citizenship, since the decision on the loss is within the powers of the President of Ukraine. At the same time, at the time the immigrant received an immigration permit, the sister's passport did not expire.
Conclusions. Thus, from all of the above, several conclusions can be drawn.
Migration authorities make decisions
to revoke immigration permits without following the procedures for making such decisions.
Migration authorities often make decisions on the cancellation of immigration permits formally without taking into account the principle of proportionality, that is, in their decisions there is no reasonable balance between the public interests, which such actions are aimed at, and the interests of immigrants.
Migration authorities do not establish the guilt of immigrants, while only the guilty actions of an immigrant can be grounds for such a cancellation.
Migration authorities incorrectly apply the rules that establish the grounds for canceling immigration permits.
Fortunately, legal rights and interests violated by the migration service can be successfully defended in court, of course, if there is a sufficient evidence base.
LLC "STATUS CO"