Tim Baster and Isabelle Merminod report on the ongoing nightmare for 81 asylum seekers.
Although the hunger strike of 83 Somalis in detention in Ukraine ended on 17 February, the campaign to fight against the violations of human rights of these detainees, and other asylum seekers, continues. Eighty-one Somalis (two of the original 83 have been released after serving their ‘sentence’), who were on hunger strike from 6 January to 17 February, are still detained within the nightmare of Ukraine’s ‘asylum procedure’.
In theory, they have been detained in order for the Ukrainian State Migration Service to obtain travel documents and deport them to Somalia. But a spokesperson for the Ukrainian State Migration Service has said publicly that no Somalis will be deported to Somalia. (It is impossible to deport anyone to Somalia anyway, due to the continued violence there.) In addition, the European Court of Human Rights has declared that deporting Somalis to Somalia would breach Article 3 (the article against torture) of the European Convention on Human Rights. Yet the Somalis remain in detention. The United Nations High Commissioner for Refugees (UNHCR), Amnesty International and Human Rights Watch all state that their detention is illegal.
At the end of the hunger strike on 17 February, the detainees filled in application forms for ‘humanitarian protection’ at the request of the Ukrainian State Migration Service and the UNHCR. ‘Humanitarian protection’ is the type of residence permit that many Somalis obtain in EU countries. It gives them nearly the same rights as someone with refugee status under the 1951 Refugee Convention.
Ironically, many Somali detainees have now been issued with temporary permits to live freely in Ukraine while the Ukrainian State Migration Service considers their applications. So they are detained despite their brand new temporary residence permits which in theory allow them to live in Ukraine in freedom.
A spokesperson for the Somalis said that last Wednesday the Ukrainian State Migration Service rejected some of the Somalis’ applications on the basis that the applications are ‘manifestly unfounded’. This means that the application will not be properly considered, because the State Migration Service judges that there is no basis for the application. The State Migration Service had previously promised UNHCR that they would not do this. Given that they have already said that no Somali will be deported to Somalia, what do they expect them to do when they are released at the end of their ‘sentences’? As one Somali detainee said of his previous application, ‘They rejected me and said, “You have to leave Ukraine.” But I can’t leave the country; I have no passport and no money.’
At the end of their hunger strike, the Somalis wanted to lodge appeals against their detention. But lodging an appeal with the court is going to be difficult – they were never told that they had only 5 days to do so, and few did so in time. The courts may now refuse to accept any late appeals against detention.
Legal experts in Ukraine say that even if the Somalis appeal against their detention, it may take at least 6 months to get their case to court, and that even then, they are not assured a fair court procedure. The Commissioner for Human Rights for the Council of Europe recently issued a damning report on the Ukrainian justice system. He noted that it lacks transparency and funding, lawyers suffer harassment, and judges are appointed through an inadequate procedure and are subject to political pressure.
Meanwhile, the EU is negotiating with Ukraine to create a new Ukraine EU Association Agreement, as a step towards eventual Ukrainian membership of the EU. The joint statements coming from the EU and Ukraine have many phrases about the requirement for a ‘clear and effective commitment to the core values of democracy, human rights and the rule of law’.
But for the detained Somalis, there is little sight of these values in Ukraine.
Tim Baster and Isabelle Merminod