On September 5, 2022, the Dnipro District Court of Kyiv declared unlawful and cancelled a decision of the State Migration Service of Ukraine that ordered a Canadian citizen to leave the country and banned him from entering Ukraine for three years. The client was represented by Attorney Dmytro Chuguienko of Disputes Law Firm.
Introduction
The State Migration Service issued the forced return order and the entry ban because the client's temporary residence permit had expired 14 days before he applied to extend it. Every document in the case was drawn up in Ukrainian, a language the client does not speak, and no interpreter took part in the proceedings.
The court suspended the order eight days after it was challenged, and later cancelled both the order and the administrative fine on which it was based.
Background
The client, a Canadian citizen, came to Ukraine in 2018 at the invitation of a volunteer organization. He lived in Ukraine on a temporary residence permit, returning to Canada only for short periods, and renewed the permit each time it was about to expire.
During those years he met a Ukrainian woman, whom he later fell in love with and intended to marry.
His last permit was valid until December 24, 2021. On November 22, 2021, the client applied to the Dokument passport service to extend it.
On November 30, 2021, the Central Interregional Directorate of the State Migration Service of Ukraine in Kyiv and Kyiv Region refused to issue a new permit. The ground was an unpaid traffic fine of UAH 7,780, which the refusal treated as an unfulfilled obligation to the state under the procedure for issuing temporary residence permits approved by Cabinet of Ministers Resolution No. 322 of April 25, 2018.
The client learned of the refusal on December 6, 2021. He was ready to pay the fine the same day, but obtaining the exact amount and payment details from the enforcement service took almost a week because of quarantine restrictions, and he paid it on December 14, 2021.
On December 24, 2021, his permit expired.
On the advice of the immigration consultants who were then assisting him, the client did not apply before the permit expired. He waited until January 6, 2022, intending to pay the fine for overstaying and resubmit his documents.
The client did not want to leave Ukraine. His partner lived here, and his work had begun to grow.
On January 6, 2022, the same day he submitted his documents, the migration authority drew up an administrative offense report against him under Article 203(1) of the Code of Ukraine on Administrative Offenses for residing on an expired document and imposed a fine of UAH 3,400.
On the same day, it issued a decision on his forced return to his country of origin or a third country. The decision required him to leave Ukraine by January 27, 2022, and banned him from entering Ukraine for three years, until January 6, 2025. The client was not informed of this decision.
On January 11, 2022, the migration authority called the client in to collect his documents and pay the fine. The report and the resolution were in Ukrainian, and an officer had placed check marks where the client was to sign.
The client spoke to the officer in English and asked for the documents to be translated or for an interpreter to be called. The officer did not speak English and simply pointed to the check marks again.
The client then asked for an interpreter and a lawyer. The request was ignored, and he signed the documents without understanding them, including a line requesting that the case be heard in his absence and a line confirming that his rights had been explained to him. The field for the interpreter's signature remained blank.
On January 13, 2022, the client tried to apply again for an extension of his permit. He was refused because a forced return decision had already been made against him, yet he was still not given a copy of that decision.
He received an uncertified copy only on January 19, 2022, thirteen days after the decision was made. The Instruction on Forced Return and Forced Expulsion of Foreigners and Stateless Persons requires such a decision to be announced to the foreigner within 72 hours, in the presence of an interpreter.
Having realized his situation, the client immediately turned to Disputes Law Firm. He did not want to leave his fiancée or Ukraine for the next three years.
Legal Position and Actions
Challenging the order and suspending it
Only eight days remained before the deadline for leaving Ukraine. Attorney Dmytro Chuguienko prepared an administrative claim to the Dnipro District Court of Kyiv, which was filed on January 21, 2022.
The claim sought two things. First, it asked the court to declare unlawful and cancel the resolution imposing the fine under Article 203(1) of the Code on Administrative Offenses. Second, it asked the court to declare unlawful and cancel the forced return decision together with the entry ban.
Article 268 of the Code on Administrative Offenses gives a person facing administrative liability the right to legal assistance, to speak in their native language, and to use an interpreter if they do not speak the language of the proceedings. Neither the report nor the resolution contained an interpreter's signature. Thus, the client was deprived of every procedural right that article guarantees.
The forced return decision was derived from the fine. If the resolution imposing the fine fell, the ground for the forced return fell with it.
Under Article 288(2) of the Code of Administrative Procedure of Ukraine, a foreigner's claim against a forced return decision must be heard within ten days. A claim alone, however, does not let the foreigner remain in Ukraine while the case is pending, so the attorney filed a motion for interim relief together with it.
On January 28, 2022, the court opened proceedings and granted the motion under Articles 150 and 151 of the Code of Administrative Procedure. The ruling suspended the forced return decision and the obligation to leave Ukraine by January 27, 2022, until the judgment in the case became final.
Lifting the ban at the border
The case was scheduled for a hearing, but on February 24, 2022, Russia launched its full-scale war against Ukraine and changed everyone's plans. The client left for Poland in early March.
For the first two months of the war, the courts almost stopped administering justice. Ukrainians did not give up, and everyone worked to restore the economy and the normal functioning of the country. From May, the courts gradually resumed their work.
Even after the full-scale invasion, the client wanted to return to Ukraine.
On April 26, 2022, he was refused entry at the border. The entry ban was still recorded in the State Border Guard Service database.
Neither the original court ruling suspending the decision nor the attorney's reference to the Constitution and the binding force of a court ruling had any effect.
The same day, the attorney sent a request to the Administration of the State Border Guard Service of Ukraine. On May 4, 2022, it replied that the State Migration Service had not withdrawn the entry ban.
The attorney then sent a request to the State Migration Service. On May 11, 2022, the Service wrote to the Border Guard Service about the execution of the court ruling.
To confirm that the Border Guard Service had received and acted on that letter, the attorney sent another request. On May 16, 2022, the Border Guard Service replied that it had received no letters from the State Migration Service.
After several days of waiting, the attorney sent new requests to both agencies regarding the client's entry. On May 24, 2022, the State Border Guard Service confirmed that the client was allowed to enter Ukraine.
The road back to Ukraine was open. The client returned in mid-June 2022.
Result
The court repeatedly rescheduled the hearings because the State Migration Service did not provide an interpreter. The attorney and the client agreed on an interpreter themselves, and the hearing went ahead.
At the hearing, the judge asked why the client wanted to stay in Ukraine so much, given the war and the difficult economic situation. The client answered that he intended to continue volunteering, marry his fiancée, and start a business in Ukraine.
On September 5, 2022, the Dnipro District Court of Kyiv granted the claim in full. It declared unlawful and cancelled the resolution imposing the fine and closed the administrative offense case. It also declared unlawful and cancelled the forced return decision and the three-year entry ban.
The court found that the client had entered Ukraine lawfully and applied to extend his documents only 14 days late, counting weekends. The case file contained no evidence of any of the grounds for refusing entry listed in Article 13 of the Law of Ukraine "On the Legal Status of Foreigners and Stateless Persons."
The court also took into account that the client does not speak Ukrainian and was not provided with an interpreter. It disregarded his signature under the statement that he understood Ukrainian, because the explanations in the report contradicted the case file, and the State Migration Service offered no evidence of his command of the language.
Conclusion
Thus, a forced return order and an entry ban cannot rest on proceedings that a foreigner was unable to understand. When a person who does not speak Ukrainian signs documents without an interpreter, the migration authority must prove that he understood them, and in this case it could not.
A court ruling suspending a removal order does not reach the border database by itself. In this case, it took four weeks and five attorney's requests to two agencies before the client could re-enter Ukraine, and the order itself was cancelled seven months after it was challenged.
Disputes Law Firm represents foreigners in disputes with the State Migration Service, including challenges to forced return orders, entry bans, and refusals to issue or extend residence permits. More about this practice is available on the immigration matters service page, and a related case is described in the article on a work permit and a two-year residence permit obtained for a client from India.
