Stay or go? How should foreigners in Ukraine to avoid problems with law

Penalties, deportation and entry ban for the overstay caused by the COVID-19 quarantine measures shall not apply ONLY for CERTAIN foreigners who stayed in Ukraine legally from 12 March 2020 till the official end of quarantine plus 30 days, - for now the quarantine is set till 31.12.2021.

Bureaucratic terror and uncertainty amid the coronavirus outbreak in Ukraine made many foreign citizens and stateless persons stuck without either a possibility to leave the country nor to manage paperwork for legal stay to avoid overstay. Despite that on 17.03.2020 the Government of Ukraine issued a resolution that prescribes that foreigners who could not leave the country or to apply for residence permit shall not be penalized for illegal stay in Ukraine till the quarantine will end, still there are too many risks to have legal problems in Ukraine and here is why.

The changes made to the legislation are not clearly drafted and allow for ambiguous interpretation and application, which raises many questions and risks. How to extend my legal stay in Ukraine due to the corona virus COVID-19 quarantine measures? Do I have a right to apply for a residence permit or its extension after the quarantine? How would it work out? Would the officials apply the law in the correct way? Would they admit the application for extension of stay? Would they not file a deportation decision with 3 years entry ban? OR the rule means only that I will not be fined for “overstay” however I will still need to leave the country and to apply for a new visa? These and many other questions appear among foreigners in Ukraine due to the coronavirus outbreak and quarantine measures.

For now the COVID-19 quarantine in Ukraine should be lifted on 31.12.2021

The most recent legal practice shows that generally most territorial departments of State migration service of Ukraine fulfil the temporary migration rules, however staying illegally in Ukraine is not a good idea as well as in any country. Illegal stay in Ukraine prevents the foreigner to access many basic administrative services such as registration of marriage, incorporation of business or even access to basic healthcare. Apart from that, knowing the preferred way of “work” of some territorial departments of State migration and border guard services, their harmful practice of violation of foreigners’ rights and freedoms which oftentimes lead not only to 1700-10200 Hryvnas penalties but the worse situations like deportation and 3-years entry ban, – it is highly recommended to get well-prepared in order to extend the legal stay and avoid the mentioned above negative consequences.

The good news is that the most recent Ukrainian legislation allows foreigners to extend their stay in the territory of Ukraine even because of the dangerous pandemic situation that is changing every day in the countries of origin where the above mentioned foreigners are from.

Is it necessary to extend my legal stay in Ukraine during the COVID-19 quarantine and if yes, then how to do it?

First of all, let’s see what is the Law of Ukraine № 3219 «On amendments to some legal acts of Ukraine, aimed to prevent the emerging and spread of the coronavirus infection (COVID-19)». In particular, the Law foresees that due to quarantine, foreigners and stateless persons that have not been able to apply to the territorial Units and Departments of the State Migration Service of Ukraine to prolong the period of their stay in Ukraine AND/OR to exchange their permanent/temporary resident permits, WILL NOT BE PENALIZED for violation of the legislation on the legal status of the foreigners and stateless persons, IF such violations have occurred within the period of the quarantine. It’s important to stress that these rules shall be applied to the foreigners and stateless persons who stayed legally in the territory of Ukraine as of the beginning of quarantine measures.

On 21.07.2021 the Government of Ukraine has restored the administrative responsibility for illegal stay in Ukraine despite the quarantine and amended changes to the Order of the Government No 259 from 18.03.2020 which allowed the foreigners not to be sanctioned for forced overstay in Ukraine due to the pandemic of COVID-19. The new rules came into effect on 07.08.2021.

All foreigners violating the rules of stay in Ukraine after 07.08.2021 are subjects for sanctions

The amendments repeal the norm of the resolution of the Cabinet of Ministers, according to which all foreigners who violated the term of stay on the territory of Ukraine during or as a result of quarantine, were released from administrative liability under article 203 of Code of Ukraine about administrative sanctions.

Unequal law enforcement practices lead to misunderstandings and negative consequences. However, ignorance of the law does not absolve from responsibility and this is the most important thing. After all, in addition to a fine for a foreigner, a decision on deportation may be made and entry into Ukraine from 3 to 5 years may be prohibited. 

However several exceptions are still possible!

At the same time the Law of Ukraine № 3219 “On Amendments to Certain Legislative Acts of Ukraine Aimed at Preventing the Occurrence and Spread of Coronavirus Disease (COVID-19)” is still in effect. In accordance to the provisions of mentioned Law some foreigners are still excepted from the list of those who apply to the new rules and shall not be fined, deported or banned to enter Ukraine:

– foreigners and stateless persons who were unable to leave Ukraine due to the quarantine;

– foreigners and stateless persons who have not been able to apply to territorial bodies / subdivisions of the State migration service of Ukraine with a request to extend their stay on the territory of Ukraine and / or to exchange the residence permit (temporary or permanent) due to the quarantine.

However there are several problems appear.

First of all it will be difficult to prove that the person did not have a possibility to leave the territory of Ukraine in time because in different periods of time the quarantine restrictions in different countries were changing, and it is very possible to assume that the person could have a possibility to travel outside Ukraine at some moment, and not stay in Ukraine illegally from 12.03.2020 till the present time. 

Secondly, the real everyday practice of a lawyer shows that state authorities, in particular the State migration service of Ukraine and State border guard service of Ukraine do not pay much attention to explanations of foreigners while they file a case about overstay. After all, they understand that after filing a case the foreigner will have a limited time to appeal it. 

So, what has to do a foreigner who overstayed in Ukraine during the COVID-19 quarantine?

If you have no grounds for extension of stay in Ukraine and do not have a residence permit which you have to exchange it is recommended to leave the territory of Ukraine. And it is more likely that you will get a penalty amounting from 1700 to 5100 UAH. However at least you can avoid deportation decision and the most worst – the entry ban to Ukraine for years.

If you have no deportation yet then it is recommended to avoid visiting the migration service. Instead it is recommended just to travel outside (airport, drive etc). The advantage is that unlike the migration service the border guard service in most cases files only a penalty, without a deportation and entry ban decisions.

The payment of the penalty should be recorded in the state register appropriately!

To avoid having an entry ban to Ukraine for 3 years it is highly recommended to get a proof that the state authority recorded the penalty payment and has no objections.

You are kindly welcome to contact our immigration lawyer who has wide and positive experience on dealing with state authorities, do not delay with your problem and better contact us as soon as possible in order to protect your rights. Inactivity or contacting persons who do not have a lawyer’s license might cause you irreparable damage, lead to unforeseen negative consequences such as penalties, deportation and 3 – 10 and more years entry ban.

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