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  • Confirmation of the facts of family ties, birth and residence on the territory of Ukraine for obtaining a permanent residence permit and citizenship

Confirmation of the facts of family ties, birth and residence on the territory of Ukraine for obtaining a permanent residence permit and citizenship

02.12.2021

Acquisition of Ukrainian citizenship or obtaining an immigration permit is a rather complicated process that requires a careful approach to collecting the necessary documents that confirm the presence of certain facts that are the basis for acquiring citizenship and obtaining an immigration permit.

According to the legislation, foreigners, as well as their minor children, have the right to acquire Ukrainian citizenship or obtain an immigration permit based on territorial origin, if:

a person or one of his parents, grandfather or grandmother, relatives (full and incomplete) brother or sister, son or daughter, grandson or granddaughter were born or permanently resided before August 24, 1991 in the territory that became the territory of Ukraine in accordance with the Law Ukraine "On the Succession of Ukraine";
a person or one of his parents, grandfather or grandmother, relatives (full and incomplete) brother or sister were born or permanently resided in other territories that were at the time of their birth or during their permanent residence in the Ukrainian People's Republic, West Ukrainian People's Republic, Ukrainian State, Ukrainian Socialist Soviet Republic, Transcarpathian Ukraine, Ukrainian Soviet Socialist Republic (Ukrainian SSR).
a child who was born on the territory of Ukraine after August 24, 1991, if he did not acquire the citizenship of Ukraine by birth and is a stateless person or a foreigner.
A foreigner can also acquire Ukrainian citizenship upon birth on the territory of Ukraine. The legislation also provides for the establishment of belonging to the citizenship of Ukraine on the fact of permanent residence in the territory of Ukraine as of August 24, 1991 and November 13, 1991; permanent residence of the child on the territory of Ukraine as of August 24, 1991 or November 13, 1991; of permanent residence on the territory of Ukraine of the parents (one of them) of the child or other legal representative with whom the child permanently resided as of August 24, 1991 or November 13, 1991.

To exercise these rights, a foreigner must have supporting documents, that is, documents that confirm family ties with the above persons, confirm the fact of permanent residence or birth. These facts can be confirmed by relevant documents: passports, certificates, extracts from registers, certificates.

Nevertheless, there are cases when these documents are absent and there are no ways to obtain or renew them, and then the question of how to confirm the necessary facts arises. In this case, it is possible to establish the facts in court. This is directly indicated by clause 44 of the Decree of the President of Ukraine No. 215/2001 of 27.03.2001 "Issues of organizing the implementation of the Law of Ukraine" On Citizenship of Ukraine ": in the absence of documents confirming the fact of permanent residence or birth of a person before August 24, 1991 on territory that became the territory of Ukraine in accordance with the Law of Ukraine "On the Succession of Ukraine", or in other territories that at the time of her birth or during his permanent residence were part of the Ukrainian People's Republic, the West Ukrainian People's Republic, the Ukrainian State, the Ukrainian Socialist Soviet Republic, Transcarpathian Ukraine, Ukrainian Soviet Socialist Republic (Ukrainian SSR) or documents confirming the relevant family relations, a corresponding court decision is submitted to formalize the acquisition of Ukrainian citizenship.

It is possible to obtain a court decision by way of special proceedings by establishing facts of legal significance. In this case, these facts are the facts of birth on the territory of Ukraine, residence on its territory and family ties, since the emergence of the right to citizenship or to immigration depends on them.

What's the order? Cases on the establishment of facts of legal significance are considered by the courts of general jurisdiction on the basis of an application by a foreigner (applicant). It is important to understand that one of the conditions for filing an application with the court is the impossibility of obtaining or renewing a document that certifies the necessary fact. Also, the conditions for filing are:

no dispute about the right;
the establishment of the fact is not connected with the further resolution of the dispute about the right;
the legislation does not provide for another out-of-court procedure for establishing legal facts.
The parties to the special proceedings are the applicants and interested parties. In the case we are considering, the interested parties will be the relevant bodies of the migration service, that is, the bodies in which the applicant will implement decisions on establishing the fact. An individual's application for establishing a fact of legal significance is submitted to the court at his place of residence.

The requirement for the mandatory indication in the statement of the purpose of establishing a legal fact is important, since the purpose makes it possible to conclude whether

the fact is legal and whether it carries legal consequences. The application must also indicate the reasons for the impossibility of obtaining or recovering documents certifying this fact, and provide evidence of its existence. Taking into account the purpose specified in the application, the court determines the circle of persons who can be involved in the case. The application shall be accompanied by evidence confirming the circumstances set out in the application, and a certificate of the impossibility of restoring the lost documents. If there is sufficient evidence, the court makes a decision to establish the relevant fact. The court decision must indicate information about the fact established by the court, the purpose of its establishment, as well as the evidence on the basis of which the court established this fact.

It is worth considering the individual fact-finding decisions that are relevant to citizenship or immigration permits.

Thus, the Belogorskiy District Court of the Autonomous Republic of Crimea, by its decision of June 22, 2010, satisfied the applicant's application for establishing the fact of the applicant's permanent residence in the village. Rusakovka of the Belogorsk region of the Autonomous Republic of Crimea from September 1991 to the present on the following grounds: the court established that, according to the passport of a citizen of the USSR, G.A. was born in Armenia, according to the records of the work book, the applicant was from May 26, 1994 to April 30, 1998. worked as a lumberjack and forester in the Belogorsk state forestry enterprise, on the basis of a certificate issued by the executive committee of the Rusakovsky village council of the Belogorsk region of Crimea on May 6, 2010.The applicant lives on the territory of the Rusakovsky village council of the Belogorsk region in the AR of Crimea on September 11, 1991, has a family: a wife P., 1966 n. B.C., son of G.G., 1989 A.D. B.C., daughter of G. S., 1988 A.D. e., who are citizens of Ukraine. The establishment of this fact has legal significance for G.A., since it allows him to exercise the right to obtain citizenship and a passport of a citizen of Ukraine.

The Galitskiy District Court of the Ivano-Frankivsk Region, in a decision of 25.04.2017, established the fact of the birth of the applicant's mother in the village. Temerivtsi of Stanislavskaya region on July 25, 1917, which since August 24, 1991 is the territory of Ukraine. Establishing this fact was necessary for obtaining a permanent residence permit. The applicant could not exercise her right to immigration, since she did not have a document confirming the birth of her mother on the territory of Ukraine. She also could not get it due to the lack of birth certificates of the mother and the corresponding registers in the state archives, which is confirmed by the letters provided from the state archives of the Lviv region and the department of state registration of acts of civil status in the Lviv region. The fact of birth on the territory of Ukraine was confirmed by the applicant's explanations, testimonies of witnesses, and indirect documents, namely a marriage certificate, which indicated the place of birth.

The Malinovskiy District Court of Odessa, in a decision of 24.10.2016, also established the fact of the birth of the applicant's mother on the territory of Ukraine. Thus, the applicant intended to obtain Ukrainian citizenship by territorial origin, namely by the fact of the birth of her mother on the territory of Ukraine. Confirm the fact of her birth on 07/29/1939 in the village. Pervomaika, Novoazovsky district, Donetsk region, she could not due to the loss of her birth certificate. The applicant was not able to obtain a duplicate of this birth certificate due to the location of the archive in the temporarily occupied territory in accordance with the Law of Ukraine "On a special procedure for local self-government in certain areas of Donetsk and Luhansk regions" dated September 16, 2014 No. 1680-VII and Resolution of the Verkhovna Rada of Ukraine "On the recognition of certain regions, cities, towns and villages of Donetsk and Lugansk regions as temporarily occupied territories" dated March 17, 2015 No.

The court decision states that the fact of the birth of the applicant's mother on the territory of Ukraine is confirmed by a marriage certificate No. 1667 dated June 16, 2016, which indicates the place of birth of the wife of Pervomayk, Budenovskiy district, Stalin region; a certificate of marriage dated June 17, 2016, where the wife's place of birth is indicated in Pervomaika, Novo-Azov district, Donetsk region; mother's death certificate, series I-MU No. 788345 dated 02/10/2001, with the entry “place of birth of Pervomayka, Novoazovskiy district, Donetsk region”. After evaluating all the evidence in the case in their totality, the court came to the conclusion that the application was justified and has grounds for satisfying the requirements, since the applicant does not have a certificate and the original birth certificate, for objective reasons there is no possibility of registering the fact of the applicant's birth by the state registration of civil acts state, the fact of the birth of the applicant's mother in s. Pervomaika, Novoazovsky district, Donetsk region, which was part of the Ukrainian SSR, is confirmed by the investigated written evidence and has legal significance for the applicant.

Due to the recent

Among the events in our country, the issue of confirming the fact of the birth on the territory of Ukraine of children who were born on the temporarily occupied territory of Ukraine * became acute, because, as mentioned above, children born on the territory of Ukraine are citizens of Ukraine. Accordingly, in order to obtain a certificate of registration of a person as a citizen of Ukraine, it is necessary to submit a certificate of registration of the birth of a child.

State registration of the birth of a child in accordance with the Law of Ukraine "On State Registration of Civil Status Acts" is carried out upon written or oral application of the parents or one of them by the Department of State Registration of Civil Status Acts at the place of his birth or at the place of residence of the parents.

But the Order of the Ministry of Justice of Ukraine dated June 17, 2014 No. 953/5 "On urgent measures to protect the rights of citizens in the territory of the anti-terrorist operation" temporarily suspended the state registration of acts of civil status, amending civil status records, their restoration and cancellation , re-issuance of certificates of state registration of acts of civil status and the issuance of extracts from the State register of acts of civil status of citizens by departments of state registration of acts of civil status, in settlements on the territory of which government bodies temporarily do not exercise their powers. The list of these settlements is established by the order of the Cabinet of Ministers of Ukraine dated 07.11.2014 No. 1085-r "On approval of the list of settlements on the territory of which government bodies temporarily do not exercise their powers, and the list of settlements located on the contact line." Nevertheless, this same Order established that these actions are carried out by any department of state registration of acts of civil status, which is located outside the specified territory.

The basis for the state registration of the birth of a child is the documents established by the Ministry of Health of Ukraine confirming the fact of birth. That is, medical birth certificates and birth certificates themselves issued in the occupied territory have no legal force for the departments of state registration of acts of civil status, which entails a refusal to register the birth of a child.

Thus, in this case, it is also necessary to use the judicial procedure for establishing the fact of birth in a special procedure, and then the basis for registering the birth of a person will be a court decision on establishing the fact of birth in a territory that is temporarily occupied.

The peculiarities of proceedings on cases of establishing the fact of the birth of a person in the temporarily occupied territory of Ukraine are established in the Civil Procedure Code of Ukraine (Code of Civil Procedure of Ukraine). An application for establishing the fact of a person's birth in the temporarily occupied territory of Ukraine may be submitted by parents, relatives, their representatives or other legal representatives of the child to any court outside this territory of Ukraine, regardless of the applicant's place of residence. In the decision to establish the fact of the birth of a person in the temporarily occupied territory of Ukraine, in particular, the data established by the court on the date and place of birth of the person, on his parents must be indicated. The decision taken by the court is subject to immediate execution. A copy of the court decision is issued to the participants in the case immediately after the announcement of such a decision or is immediately sent by the court to the state registration authority at the place where the decision was made for state registration of the birth or death of a person.

Regarding what documents can serve as proof of birth in the occupied territory of Ukraine. A court decision in this category of cases should be based on compliance with the requirements of the Code of Civil Procedure of Ukraine regarding a complete and comprehensive clarification of the circumstances of the case on the basis of all the evidence presented by the persons participating in the case in aggregate. At the same time, despite the fact that documents issued by bodies and institutions located in the occupied territory are not considered documents issued in the manner prescribed by the legislation of Ukraine, they must be taken into account by the court and evaluated together with other evidence in their totality and interconnection when considering cases on establishing the fact of birth. This practice is consistent with the practice of decisions of the European Court of Human Rights regarding admissibility as evidence of birth documents issued by illegal authorities in view of the need to protect human rights.

  • The temporarily occupied territory of Ukraine is determined by the Law of Ukraine "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine" and the Order of the Cabinet of Ministers of Ukraine dated 07.11.2014 "On approval

the list of settlements on the territory of which the state authorities temporarily do not exercise their powers, and the list of settlements located on the line of contact. "

Lawyer
LLC "STATUS CO"
Yakubova Sevinj

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