Obtaining a temporary residence permit in case of violation of the established period of stay by foreigners
In accordance with the Law of Ukraine "On the Legal Status of Foreigners and Stateless Persons" (hereinafter - the Law "On Foreigners"), the legality of the stay or residence of a foreigner or stateless person (hereinafter - a foreigner) on the territory of Ukraine for more than 90 days within 180 days is confirmed by the types for temporary or permanent residence, which are formalized in accordance with the grounds determined by legislation.
One of the mandatory documents for obtaining a temporary residence permit is a passport document of a foreigner with a corresponding long-term visa and a copy of the page of the passport document with such a visa, unless the person is not obliged to obtain such a visa in accordance with current legislation or international treaties of Ukraine (p. . 2 part 17 of article 5 of the Law of Ukraine "On foreigners"). According to the "Rules for issuing visas for entering Ukraine and transit through its territory", approved by the Resolution of the Cabinet of Ministers of Ukraine dated March 1, 2017 No. 118 (hereinafter - Resolution No. 118), a long-term visa (denoted by the letter D) is issued to foreigners to enter Ukraine for the purpose of registration of residence permits.
A D visa is issued if there are grounds specified in the Law of Ukraine "On Foreigners" and in Resolution No. 118.
But you should pay attention to a certain circumstance: as noted above, in cases stipulated by laws or international treaties, a person is not required to obtain a long-term visa. In particular, there are a number of states with which international treaties have been concluded that cancel the need for a D visa for citizens of these states to apply for the issuance of residence permits in Ukraine. Thus, citizens of Russia, Moldova, Belarus, Azerbaijan, Georgia, Armenia, Uzbekistan are not required to apply for a D visa: it is enough for them to leave Ukraine and re-enter Ukraine after proper registration of the grounds for obtaining a residence permit.
In this context, for these citizens, a problem arises when the period of stay on the territory of Ukraine is exceeded, that is, stay on the territory of Ukraine for more than 90 days within 180 days. What is the problem. A citizen of the aforementioned states who has exceeded the period of stay on the territory of Ukraine and has grounds for obtaining a residence permit, when passing through a checkpoint across the state border of Ukraine, in most cases is denied entry to the territory of Ukraine due to exceeding the period of stay within the last 180 days. In some cases, the border service grants permission to enter Ukraine for these citizens. That is, at present, there is an unequal application of the rules of law in terms of changing the legal status of a foreigner.
Another problem is that even if these persons are granted an entry permit, they cannot obtain a residence permit, because the VHI authorities refuse to issue it due to the exceeding of the period of stay on the territory of Ukraine during the previous stay in Ukraine over the last 180 days. …
At the same time, a different situation arises with citizens of states that do not have agreements with Ukraine, canceling the need for a visa D. For example, a Turkish citizen who, during his stay in Ukraine, received a work permit, which gives him the right to obtain temporary residence, and at the same time exceeded the period of stay on the territory of Ukraine for the last 180 days, can apply for a visa D, then enter the territory of Ukraine and issue a residence permit. That is, the period of stay on the territory of Ukraine over the past 180 days is not taken into account.
In this context, the logic of law enforcement agencies is not clear: the abolition of the D visa for a number of countries was supposed to simplify the procedure for obtaining a residence permit, but nevertheless it causes a lot of trouble and loss of time.
Taking into account the above, we made relevant inquiries to the state bodies with a request to explain why in the identical cases considered above (the only difference is the presence / absence of a D visa), the bodies of the State Border Service of Ukraine, the bodies of the State Migration Service of Ukraine make different decisions and which of decisions to be considered correct. Unfortunately, we did not receive any intelligible answer.
The State Migration Service wrote that it is guided by the conditions of crossing the state border in accordance with the Law of Ukraine "On Border Control", the Procedure for calculating the period of temporary stay in Ukraine of foreigners who are citizens of states with a visa-free entry procedure "approved by order of the Ministry of Internal Affairs dated 20.07.2015 No. 884 (Order No. 884). Officials of the State Border Service during border control of persons grant permission to enter Ukraine only if all the conditions for crossing the border are met. These conditions are
Xia: he has a valid passport document; the lack of a decision on it to prohibit entry into Ukraine; whether he has an entry visa, unless otherwise provided by the legislation of Ukraine; confirmation of the purpose of the planned stay; the availability of sufficient financial support for the period of the planned stay and for returning to the state of origin or transit to a third state, or the possibility for him to obtain sufficient financial support in a legal way on the territory of Ukraine. If there are grounds of a humanitarian nature, to ensure the protection of national interests or in connection with the fulfillment of international obligations, a foreigner does not meet one or more conditions for crossing the state border to enter Ukraine, the Head of the State Border Service of Ukraine or the person performing his duties may allow him to cross the state border. Also, border guards calculate the period of stay of foreigners by deducting 180 days ago from the date of control (the day on which it is necessary to determine the legality of the stay of a foreigner on the territory of Ukraine). A foreigner did not violate the specified period if, within this 180-day period, he was on the territory of Ukraine for no more than 90 days. With regard to obtaining a residence permit by persons who have exceeded the period of stay during previous entries, but have grounds for obtaining a residence permit, the State Border Service noted that this is the competence of the State Migration Service. The State Border Service did not mention the issue of the fact that in some cases the border service still grants permission to enter Ukraine to these citizens. For example, border guards can grant an entry permit to a person who is married to a Ukrainian citizen in connection with family reunification.
In turn, the State Migration Service did not answer this controversial issue either. She referred to the fact that foreigners who are legally on the territory of Ukraine can apply to apply for a residence permit. They determine the legality of their stay in accordance with the Procedure for Extending the Period of Stay and Extending or Reducing the Period of Temporary Stay of Foreigners and Stateless Persons on the Territory of Ukraine, approved by the Resolution of the Cabinet of Ministers of Ukraine dated 15.02.2012 No. 150. Thus, foreigners who are citizens of states with a visa-free entry procedure who legally arrived in Ukraine may temporarily stay on its territory for no more than 90 days within 180 days. This period is calculated in accordance with Order No. 884. And the issues of entry of foreigners into the territory of Ukraine are not within the competence of the SMS authorities. Therefore, even if a foreigner who has exceeded the period of stay on the territory of Ukraine during a previous stay in Ukraine in the last 180 days was granted an entry permit by the border guards, the SMS authorities refuse to issue him a residence permit: they argue that he is here illegal. This is the dilemma.
LLC "STATUS CO"