The war in Ukraine has been raging for barely half a year, yet EU member states – the Czech Republic among them – have already begun to dial back the generous rules enshrined in Decision (EU) 382/2022, and to impose stricter ones elsewhere.
Act No. 175/2022 Coll., amending so-called lex Ukraine (Act No. 65/2022 Coll.), which has already come into force at the end of June, has tightened the rules in particular for citizens of the Russian Federation and of the Republic of Belarus, by excluding them from the group of persons eligible for a tourist visa. This is a consequence of the sanctions imposed on these two warring countries on the level of their citizenry. It is fair to say that Belarus’s involvement in the war on Ukraine has so far been rather indirect. However, if a country makes available its own territory to armed forces which are preparing, or in the process of conducting, a war of aggression, it must expect to be designated a war party. With that said, a host of exemptions exists from this general denial of the right to apply for visa or residence permits, for instance for the purpose of family reunification (if the Russian or Byelorussian citizen is the member of an EU citizen’s family), or on humanitarian grounds. The Czech government may pass a decree to stipulate such exemptions, and has in fact done sone. However, Czech authorities have been refusing to decide on the applications in question, by rejecting them as “unfit for acceptance” – often without elaborating on the grounds.
The (likewise questionable) “non-acceptance” has also been preserved in the case of applications for temporary protection pursuant to Sec. 5 (1) and (2) of Act No. 65/2022 for Ukrainians and a number of third-country nationals. While Sec. 5 (2) stipulates that Ukrainians and third-country foreigners should be notified of the “grounds for non-acceptance”, our experience has been different: applications are returned to the petitioner without giving reasons. The authorities may do so with impunity, given that recourse to the courts is being denied in the case of such decisions pursuant to Sec. 5 (2) of Act No. 65/2022. We’ve previously discussed (see the articles “The rules for Ukrainian refugees in EU countries” – https://bnt.eu/de/die-regeln-fur-ukrainische-fluchtlinge-in-eu-landern/, and “Selected issues of the institute of temporary protection in EU Council decision 382/2022 in Czech law”, https://bnt.eu/de/ausgewahlte-fragen-der-instituts-des-zeitweiligen-schutzes-im-eu-ratsbeschluss-382/2022-im-tschechischen-recht/) how this exclusion of court reviews is incompatible with the Czech Act on Temporary Protection (Sec. 17 of Act No. 221/2003 Coll.) and with Art. 29 of Directive 2001/55/EC which introduced the institution of temporary protection on the European level way back in 2001. Not to mention that a blanket denial from access to the law is impossible in a country that honors the rule of law, on grounds of being unconstitutional (because of its blatant violation of Article 36 of the Charter of Fundamental Rights and Basic Freedoms, Act No. 2/1993 Coll.); in this sense, the Czech lawmaker has reverted to a state of law(lessness) that predates the introduction of the rule of law. Likewise, the “refusal to accept” petitions is reminiscent of the bureaucratic practices which loom large in Franz Kafka’s novels “The Trial” and “The Castle”, rather than of the kind of procedure one may expect under the rule of law. None the less, the Prague Municipal Court has condoned the current practice in a decision of 20 July 2022 (case number: 14 A 63/2022), refusing to see the contradictions. We have appealed this decision on a point of law with the Highest Administrative Court (NSS) in Brno.
This is not to say that there aren’t problematic classes of cases when it comes to Sec. 5 applications: third-country citizens, i.e., non-Ukrainians, who may or may not be covered by the EU Decision; Ukrainians who left Ukraine shortly before 24 February 2022, as they are not eligible for applications within the meaning of Sec. 5 (here we may mention the example of a Ukrainian family from Kyiv which went on a safari in Tanzania, when Russia started the war, and was unable to return to Ukraine because of the war); or family members whose applications may give rise to doubts but cannot simply be “unfit for acceptance”.
Yet another group which puts us before difficult legal questions are Ukrainians who have already applied for temporary protection in other EU countries because their applications, too, are “unfit for acceptance”. However, what if the other EU country denied them temporary protection status, or that status has since expired? What if the application was filed in Denmark, which lies outside the purview of the EU Decision and the EU Directive? We have been representing Ukrainians who applied in Spain and in Latvia but have since forfeited protection in those countries; none the less, their applications were rejected in the Czech Republic without comment. Disregarding the denial of legal remedies, we sued against the rejection of these applications in the Prague Municipal Court, and sought the issuance of a preliminary injunction – alas, without success.
The biggest problems arise in cases of Ukrainian refugees who want to ‘switch’ EU member states. While Art. 15 of the Directive principally allows for reuniting families, but family reunification makes no appearance in lex Ukraine. Sec. 51 et seq. of the Czech Act on Temporary Protection (Act No. 221/2003 Coll.) does mention the concept, but the Czech authorities simply don’t apply the relevant provisions. Likewise, Czech practice appears unaware of the transferral of refugees, even though Annex I to the Directive and Annex 4 of the law 221/2003 provides a model pass (template laissez-passer pursuant to Art. 26), to be filled in by both involved member states.
The sad fact is that, following the amendment to lex Ukraine, more questions have arisen than answers have been given. In any case, a decision must be made on the European level by March 2023 whether the mechanism which affords protection to refugees from the Ukraine war will be extended or not.
The brutal war of aggression waged by the Russian Federation against its neighboring country has been going on for almost half a year, and there is not much to suggest that the bloodbath will abate any time soon. It would be desirable to see the EU continue to adhere to its principled, unified stance, not to mention that no one will send back Ukrainian refugees to Mariupol, Severodonetsk, or Lysychansk – to mention just three sites where Russian soldiers committed the gravest war crimes – or indeed to any parts of Ukraine currently under Russian occupation.