Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 14/09/2011 Aceptado el 28/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 39, Nº 71 (2021), 472-491
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal regulation of combating illegal
migration in Ukraine and the EU
DOI: https://doi.org/10.46398/cuestpol.3971.26
Yurii Kuryliuk *
Mariia Slyvka **
Yaroslav Kushnir ***
Abstract
Through a methodology of legal interpretation and analyze the
stages of formation of migration policy and legislation in Ukraine
since its independence. It was determined that in the initial stage
the main elements of the legal regulation of migration processes
in Ukraine were the development of the legal framework on
migration, the initiation of international cooperation and the
creation of organizational structures that address migration
issues. The article also analyzes the extensive system of normative
acts developed in Ukraine today, aimed at the legal regulation of
migration processes and the ght against illegal migration. In this context,
the details of the ght against illegal immigration in EU countries are
described. Finally, the guidelines for EU migration policy in the eld of
combating illegal immigration are studied. It is concluded that, unlike
Ukraine, where the ght against illegal immigration is mainly limited to the
establishment of prohibitions and nes for illegal immigrants, the EU has
developed a system of incentives and measures aimed at supporting third
countries, among other aspects.
Keywords: illegal migration; migration processes; immigration
legislation; immigration in Europe; refugees and asylum.
* Head of Department of Administrative Jurisdiction of Administration of the State Border Guard Service of
Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-4035-4431
** Аssistant of Department of Administrative and Information Law of the Educational-Scientic Institute of Law,
Psychology and Innovative Education of Lviv Polytechnic National University, Lviv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-2679-1632
*** Senior Instructor of Administrative Activity Department of National Academy of State Border Guard Service of
Ukraine named after Bogdan Khmelnitskiy, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-8519-5331
473
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 472-491
Regulación legal de la lucha contra la inmigración
ilegal en Ucrania y la Union Europea
Resumen
Mediante una metodología de interpretación jurídica se analizan
las etapas de formación de la política y la legislación migratoria en
Ucrania desde su independencia. Se determinó que en la etapa inicial los
principales elementos de la regulación legal de los procesos migratorios
en Ucrania fueron el desarrollo del marco legal sobre migración, el inicio
de la cooperación internacional y la creación de estructuras organizativas
que atiendan los temas migratorios. El artículo además analiza el extenso
sistema de actos normativos desarrollado en Ucrania hoy, destinado a la
regulación legal de los procesos migratorios y la lucha contra la migración
ilegal. En este contexto, se describen los detalles de la lucha contra la
inmigración ilegal en los países de la UE. Por último, se estudian las
orientaciones de la política de migración de la UE en el ámbito de la lucha
contra la inmigración ilegal. Se concluye que, a diferencia de Ucrania,
donde la lucha contra la inmigración ilegal se limita principalmente al
establecimiento de prohibiciones y multas para los inmigrantes ilegales, la
UE ha desarrollado un sistema de incentivos y medidas destinadas a apoyar
a terceros países, entre otros aspectos.
Palabras clave: migración ilegal; procesos migratorios; legislación
migratoria; inmigración en Europa; refugiados y asilo.
Introduction
At the present stage of Ukraine’s development, changes and processes
are taking place, which primarily cover the political sphere, and therefore
require a deeper scientic understanding. Migration policy is no exception,
which, depending on internal and external circumstances, must be formed
in accordance with the requirements of the time, considering primarily
the interests of society and the state. In terms of economic and political
crisis, the imperfection of legal regulation of migration processes is rather
important.
A serious issue that Ukraine has faced in recent years is the growth
of illegal migration. Socio-economic instability in the world has made
Ukraine attractive not only to refugees forced to ee persecution, but also
to immigrants from many Asian and African countries suering from
poverty, hunger, unemployment, and power struggles. In various, often
illegal ways, they are trying to reach Ukraine in order to cross the West.
However, in recent years there has been an obvious tendency to transform
474
Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
Ukraine from a transit country to a destination country for migrants. Due
to the aggravation of entry procedures in Central and Western Europe, a
signicant number of illegal migrants remain in Ukraine.
After the accession of Ukraine’s western neighbors to the European
Union, the attractiveness of the route through the territory of Ukraine for
illegal migrants has increased sharply, at the same time the question of the
need to regulate this phenomenon has become acute for society. That is
why migration problems in Ukraine become especially politically acute and
relevant and need political, regulatory, organizational systematization.
Illegal migration has a pronounced transit character - illegal migrants
try to enter Ukraine from Russia, Belarus, by air or sea, and then illegally
leave for Slovakia, Hungary, or Poland and then to other Western European
countries. Illegal migrants enter Ukraine using legal means of entry (under
the guise of tourism, visiting relatives, in private) or illegal (crossing the
border outside checkpoints or through checkpoints with forged documents),
mostly from Russia.
The important point is that for some migrants Ukraine becomes not only
a transit territory, but also a place of long-term stay, sometimes consciously
chosen country of residence. As a result, illegal migrants are accumulating
in the country. Due to the unsettled status of their stay in Ukraine, these
people often nd themselves in rather dicult circumstances. At the same
time, the uncertainty of their situation is a factor in creating additional
tensions in the socio-economic and interethnic spheres, the deterioration
of the criminogenic situation. A signicant number of illegal migrants are
concentrated in the city of Kyiv and border regions. This is where they try
to get to Western Europe. The growth of illegal migration to Ukraine poses
a real threat to the public security of our country. Persons from among
foreigners commit various crimes on the territory of our country, including
serious criminal ones.
It is worth noting that the European Union itself suers from the problems
of illegal migration. After 2014, the refugee crisis in the EU intensied,
because of which the EU was forced to adopt a number of regulations and
legal measures aimed at stopping the growth of illegal migrants.
These issues highlight the need to study the problems of legal regulation
of migration processes, as well as the specics of combating illegal migration
in Ukraine and the European Union.
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1. Formation of bases of legal regulation of migration policy in
Ukraine.
The beginning of the legal regulation of migration processes in
independent Ukraine can be considered the Declaration of State Sovereignty,
which was adopted in 1990. Here it was rst stated that Ukraine “regulates
immigration processes” (USSR, 1990). At the same time, the Law of Ukraine
“On Rehabilitation of Victims of Political Repression in Ukraine”, which
guaranteed the repressed, deported and their descendants (along with the
restoration of other violated rights) the opportunity to return to their places
of residence, was adopted in 1991(Verkhovna Rada of Ukraine, 1991). The
Law of Ukraine “On Citizenship of Ukraine” dened the right to citizenship
of immigrants from Ukraine who returned to its territory (Verkhovna Rada
of Ukraine, 2001).
As the share of forced displacements in the mass inux of population to
Ukraine in the early 1990s was signicant, the state paid special attention
to this problem. The concept of refugee status was rst introduced in the
summer of 1992, when Ukraine accepted more than 60,000 refugees from
the Transnistrian military conict zone. To resolve their legal status, the
Cabinet of Ministers of Ukraine approved the Provisional Regulation on
the Procedure for Determining the Status of Refugees from the Republic of
Moldova and Providing Assistance to Them (Verkhovna Rada of Ukraine,
1992).
This was the rst legislative document directly aimed at resolving the
migration problem. The experience of its implementation and the scale of
forced migration proved the need to develop a special law in this area, so
the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Refugees
and Persons in Need of Additional or Temporary Protection” (Verkhovna
Rada of Ukraine, 2011). To implement it, local bodies of the migration
service were created, which were to consider applications for refugee
status in Ukraine, make decisions on them, organize assistance to refugees
(Dergach, 2013).
Considerable attention in the eld of legal regulation of migration
processes in Ukraine was paid to ensuring the right of their own citizens to
freedom of movement leaving the country and returning home. This provided
for the abandonment of Soviet permitting procedures for emigration, total
control over travel abroad. As early as January 1993, in accordance with the
Resolution of the Cabinet of Ministers, the procedure according to which
a citizen had to obtain a permit from the competent authorities for each
border crossing was abolished. The Parliament adopted the Law of Ukraine
“On the Procedure for Leaving Ukraine and Entering Ukraine by Citizens of
Ukraine”, which guaranteed the right to freely exercise the relevant rights
(Verkhovna Rada of Ukraine, 1994). With its adoption, the provisions of
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Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
the Law of Ukraine “On Employment” came into force, which allowed labor
or entrepreneurial activity of citizens during a temporary stay abroad, i.e.,
labor migration (Verkhovna Rada of Ukraine, 2012).
This law also contained provisions according to which bureaus,
agencies, and other organizations, i.e., labor migration infrastructure,
could be established for the employment of citizens of Ukraine during their
temporary stay abroad. To carry out business activities, these structures
had to obtain licenses from the state employment service (Malinovskaya,
2010).
Nevertheless, after the collapse of the Soviet Union, due to the lack
of legally bound borders, Ukraine found itself at the center of migration
ows, which led to the uncontrolled movement of foreigners. This situation
required legal regulation of immigration into the country and determination
of the legal status of foreigners. As a result, the Law of Ukraine “On the
Legal Status of Foreigners and Stateless Persons” was adopted, according
to which foreigners permanently residing in Ukraine received rights (other
than the right to elect and be elected to hold public oce) and had to
perform their duties (except for military service).
The law established the rules of stay of foreign citizens, their departure
and entry, provided for liability for violation of the relevant rules (reduction
of the period of stay, the order of expulsion). It enshrined the possibility
of immigration to Ukraine, asylum, refugee status, citizenship. These
issues were to be regulated by special laws the immigration law, which was
planned to be adopted (Kushnir et al., 2021).
In order to prevent illegal migration, the rst State Program to Combat
Illegal Migration was approved in 1996. This program provided for
organizational and practical measures, which included the creation of special
units within the structure of the Ministry of Internal Aairs; prevention of
oenses related to illegal migration; international cooperation in the ght
against illegal migration by signing bilateral agreements on mutual legal
assistance; improving the legal framework for immigration. The practice of
developing such programs continued in the future (Cabinet of Ministers of
Ukraine, 1996).
The adoption of the Constitution of Ukraine on June 26, 1996, was
of great importance for the further development of legal regulation of
migration processes (Verkhovna Rada of Ukraine, 1996). It is expedient
to identify three areas of development of migration legislation: bringing
current regulations in line with the Constitution of Ukraine; adoption of
new laws that do not contradict the Constitution and harmonization of
Ukrainian legislation with international law.
Considering these areas, it should rst be noted that the Constitution
of Ukraine is the basic law on which the legal system of the country should
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be based. The Constitution contains provisions that stipulate the need to
adopt specic laws on the implementation of migration policy: Laws of
Ukraine: “On Citizenship of Ukraine” (Verkhovna Rada of Ukraine, 2001),
“On Immigration” (Verkhovna Rada of Ukraine, 2001), “On the legal status
of foreigners and stateless persons” (Verkhovna Rada of Ukraine, 2011).
The Constitution enshrines the basics of legal regulation of migration
processes in Ukraine regarding the movement of people, namely: everyone
who is legally on the territory of Ukraine is guaranteed freedom of
movement, free choice of residence, the right to leave Ukraine, except for
restrictions established by law (Art. 33).
The Constitution provides for the possibility of establishing restrictions
on freedom of movement on the territory of Ukraine and the choice of
place of residence in a state of war and emergency (Article 64). This applies
equally to citizens of Ukraine, foreigners, stateless persons. Restrictions
should be temporary, pending the imposition of such a state of war, natural
disasters, accidents or catastrophes, epidemics, epizootics, and other force
majeure.
Thus, the Constitution of Ukraine reects various aspects of migration
processes, establishes the basics of regulation of these processes, the right
to freedom of movement and free choice of residence. It the basis for further
legislative and rule-making activities in the eld of migration, its rules have
a special priority in the regulatory system of Ukraine.
Thus, by the beginning of the twentieth century the main elements of the
legal regulation of migration processes in Ukraine were formed: the legal
framework on migration issues was developed, international cooperation
was initiated, and organizational structures dealing with migration issues
were established.
2. Basic principles of legal regulation of migration processes
and counteraction to illegal migration in Ukraine
During the harmonization of the legal framework with the international
one, many shortcomings were revealed. From the assessment of the
eectiveness of legal norms followed the task of improving them. The
adoption of the Constitution and Ukraine’s accession to the most important
international legal agreements in the eld of human rights, in particular, to
the European Convention on Human Rights and Fundamental Freedoms,
required the migration legislation to be brought into line with these
documents. Thus, in order to protect the interests of migrant workers, the
Law of Ukraine “On Licensing of Certain Types of Economic Activity” was
adopted.
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Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
During 2001, several basic legislative acts on migration regulation
were adopted, in particular, new versions of the laws “On Citizenship of
Ukraine”, “On Refugees” (repealed), as well as laws “On Immigration”, “On
Amendments to Certain Legislative Acts of Ukraine on Combating Illegal
Migration” (Verkhovna Rada of Ukraine, 2001).
In December 2003, the Parliament adopted the Law of Ukraine
“On Freedom of Movement and Free Choice of Residence in Ukraine”
(Verkhovna Rada of Ukraine, 2003), which applied to both citizens of
Ukraine and foreigners who were legally in the country.
In 2004, the Law of Ukraine “On Ukrainians Abroad” was approved,
which, among other things, xed the right of this category of foreign citizens
to immigrate to Ukraine outside the established quotas (Verkhovna Rada of
Ukraine, 2004).
Increased attention to labor migration of Ukrainians abroad was
associated with a special report of the Verkhovna Rada of Ukraine
Commissioner for Human Rights (April 2003), the subject of which was a
violation of human rights in connection with labor migration. Responding
to the ombudsman’s report, the Parliament held special hearings on the
legal and social status of modern Ukrainian labor migration, Ukraine
acceded to the European Convention for the Protection of the Rights of
Migrant Workers (Libanova, 2010).
The Government has developed a Program for Ensuring the Rights and
Interests of Citizens Going Abroad for Employment and Children Adopted
by Foreigners. Special units began to operate to combat this phenomenon.
Some norms of the laws “On the Legal Status of Foreigners and Stateless
Persons”, “On the Procedure for Leaving Ukraine and Entering Ukraine
by Citizens of Ukraine”, “On Citizenship of Ukraine” were systematically
improved by amending them. The development of legal regulators was
aimed at more complete protection of human rights, improvement of
mechanisms for regulating migration ows (Bil, 2017).
Thus, nowadays the legislation of Ukraine on migration is represented
by the system of current laws of Ukraine: “On the procedure for leaving
Ukraine and entering Ukraine for citizens of Ukraine”, “On the legal status
of foreigners and stateless persons”, “On Immigration”, “On Refugees and
Persons in Need of Additional or Temporary Protection”, “On Citizenship
of Ukraine”, “On Freedom of Movement and Free Choice of Residence in
Ukraine”.
The Law of Ukraine “On Citizenship of Ukraine” is based on the
requirements of international legal acts. The Law takes into account the
living conditions and interests not only of immigrants, but also of persons
who do not have the status of immigrants in Ukraine.
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The connection between the implementation of the provisions of the
Law of Ukraine “On Citizenship of Ukraine” and migration can be traced
through such an important aspect as the acquisition of Ukrainian citizenship
abroad by territorial origin, i.e., immigrants from Ukraine, including
persons previously deported outside Ukraine and their descendants who
permanently reside in other states. With the acquisition of Ukrainian
citizenship, the Law of Ukraine “On the Procedure for Leaving Ukraine
and Entering Ukraine by Citizens of Ukraine” applies to them. A citizen of
Ukraine is free to enter Ukraine with a national passport.
The connection of the institute of citizenship of Ukraine with migration
processes is reected in the principle of preservation of the citizenship of
Ukraine established by the Law regardless of the place of residence of the
citizen of Ukraine.
The Law of Ukraine “On Freedom of Movement and Free Choice of
Residence in Ukraine” applies to all categories of individuals who are legally
on the territory of Ukraine. The law clearly states the grounds determined
by law for stay on the territory of Ukraine, the conditions of registration of
residence, place of stay, deregistration of residence. The law establishes the
grounds (for the territory and for certain categories of persons) that restrict
freedom of movement. The adoption of this law is timely and important in
resolving migration issues in Ukraine.
The next law in the eld of migration is the Law of Ukraine “On the
Legal Status of Foreigners and Stateless Persons”. It determines the legal
status of foreign citizens and stateless persons in Ukraine, establishes the
basic rights, freedoms and responsibilities of foreign citizens and stateless
persons residing or temporarily staying in Ukraine, as well as the procedure
for resolving issues related to them.
As the analysis of the legislation shows, the rights of foreigners and
stateless persons who are legally on the territory of Ukraine comply with
international law, their legal status is determined by the Constitution of
Ukraine, the Law of Ukraine “On Legal Status of Foreigners and Stateless
Persons” and other laws of Ukraine as well as international agreements. In
the case of establishing by an international agreement other rule than those
provided by law, the rules provided by such an international agreement of
Ukraine shall apply (Dergach, 2015).
Immigration to Ukraine is carried out both out of quota and in accordance
with quotas. The Cabinet of Ministers of Ukraine for each calendar year
sets the maximum number of persons in the categories dened by the Law
“On Immigration” who can immigrate to Ukraine. The law also provides for
the issuance of immigration permits outside quotas for certain categories
of foreigners, especially those from Ukraine, regulates the departure and
expulsion of persons from Ukraine in connection with the revocation of
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Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
immigration permits, appeals against immigration decisions, actions, or
inaction of public authorities.
The Law of Ukraine “On Refugees and Persons in Need of Additional
or Temporary Protection” regulated the issue of one of the categories of
foreigners and stateless persons. It established the procedure for granting
and revoking refugee status, appealing against decisions on refugees,
the rights and obligations of refugees and persons in need of additional
protection, the powers of executive bodies to decide on persons seeking
recognition as a refugee or a person in need of additional protection. The law
denes the terms “refugee” and “person in need of subsidiary protection”,
which clearly corresponds to the denition provided by the UN Convention
relating to the Status of Refugees, adopted on 28 July 1951 (United Nations,
1951).
Migration issues are also regulated by a number of resolutions of the
Verkhovna Rada of Ukraine. Among them the resolution of June 17, 1999
“On the Principles of the State Policy of Ukraine in the Field of Human
Rights” is important. In this document, the main directions of state policy
in the eld of human rights migration include:
• strengthening the reality of the right to freedom of movement
and free choice of place of residence in Ukraine (by abolishing the
institution of residence).
• humanization and eective implementation of legislation on
refugees and internally displaced persons.
• promoting the development of a system of non-judicial protection
of human rights and freedoms, providing support to public
organizations in the eld of human rights protection (Verkhovna
Rada of Ukraine, 1999).
Obvious progress in the eld of legal regulation of migration processes
was ensured due to a number of important decisions taken in Ukraine during
2011-2015, in particular, approval of the Concept of State Migration Policy
(President of Ukraine, 2011), establishment of the State Migration Service
(President of Ukraine, 2014) and its territorial subdivisions (Cabinet of
Ministers of Ukraine, 2011).
In order to improve the legislation aimed at combating illegal migration
across the state border of Ukraine, it was decided to amend the Criminal
Code of Ukraine (Verkhovna Rada of Ukraine, 2001), Criminal Procedure
Code of Ukraine (Verkhovna Rada of Ukraine, 2012) and the Code of
Administrative Oenses of Ukraine (Verkhovna Rada of Ukraine, 1984) in
terms of strengthening liability for illegal crossing of the state border of
Ukraine, violations by foreigners and individuals without citizenship rules
of stay in Ukraine and transit through the territory of Ukraine, violation of
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Vol. 39 Nº 71 (2021): 472-491
employment, housing, registration, or discharge of foreigners and stateless
persons and registration of documents for them, deportation outside
Ukraine. The functions of combating illegal migration were entrusted to
the intelligence agencies of Ukraine, which, in addition, participated in
the ght against international organized crime, including terrorism, drug
tracking, illicit arms tracking and its technology, as well as specially
authorized body of executive power for the protection of the state border
of Ukraine - to ensure the interests of the state in the areas of border and
immigration policy, as well as in other areas related to the protection of the
state border of Ukraine and its sovereign rights in the exclusive (maritime)
economic zone and continental shelf (Dergach, 2016).
Illegal migration is identied among the main real and potential threats
to Ukraine’s national security and stability in society. In this regard, it is
decided that the main directions of state policy in the ght against illegal
migration will be addressed through the participation of the state in
international cooperation (Mikolaichuk, 2010). The decision on freedom
of movement and free choice of residence was made in accordance with the
Constitution of Ukraine and aimed to regulate relations related to freedom
of movement and free choice of residence in Ukraine, guaranteed by the
Constitution of Ukraine (Freika et al., 1999).
Thus, in Ukraine the main areas of legal regulation to combat illegal
migration are: implementation of international migration law in domestic
law; denition of the basic rules of behavior of the migrant in laws;
identication of correlation between state border legislation and migration
legislation; emergence of separate legislation regulating entry into and exit
from the temporarily occupied territory of Ukraine; openness of the legal
system of Ukraine to the application of new sources of law, in particular
decisions of international and national courts.
3. Legal regulation of combating illegal migration in the EU
countries
After the consolidation of legislative powers in the eld of regulation
of migration processes for the EU institutions, a number of normative
legal acts were adopted aimed at introducing uniform rules in relation
to illegal immigrants in the EU countries. On May 28, 2001, the Council
adopted Directive 2001/40/EC on the mutual recognition of decisions on
the expulsion of third-country nationals (Council of the European Union,
2001). The document states that a decision to expel an illegally staying alien
made by one of the member states is subject to execution by other member
states, on whose territory the person may later be.
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Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
In order to simplify the procedure for the expulsion of illegal immigrants
from the EU Member States, Directive 2003/110 / EC of November 25, 2003,
“On assistance in cases of transit for the purposes of removal by air” (Council
of the European Union, 2003) was adopted. The beginning of the unication
of criminal legislation in the eld of combating illegal immigration in the
EU is the adoption of EU Council Directive No. 2002/90 / EC of November
28, 2002 “On the denition of facilitation of unauthorised entry, transit
and residence” (Council of the European Union, 2002). Directive 2002/90
/ EC contains denitional norms and establishes general signs of criminal
acts, consisting in facilitating the illegal entry of foreigners into the territory
of the Member States.
Since 2014, the European Union has been actively ghting the refugee
crisis, which turned out to be the biggest humanitarian problem for the
EU in its entire history (Butorina and Kaveshnikova, 2016). In 2015, the
number of illegal migrants to the European Union from third countries has
exceeded 1 million, it was a record year for the intensity of migration ows
to the EU. Frontex recorded 1.8 million cases of illegal migration in 2015,
including 1.04 million of them in Greece and Italy. However, both countries
are only “trans-shipment points”, since most illegal migrants strive further,
to more developed EU countries, in particular to Germany, Great Britain,
France and the Scandinavian countries (Bolshova, 2016).
On May 13, 2015, the European Commission published a message “The
European Agenda for Migration”, in which it outlined a plan for short-term
and long-term EU actions to overcome the migration crisis (European
Commission, 2015). An important part of the agenda was the development
of an action plan to combat the smuggling of migrants (Chacon Hernandez,
2021). Two weeks later (on May 27, 2015), the European Commission
prepared a communication “EU Action Plan on Combating Migrant
Smuggling (2015–2020)”, which identied four priority areas of EU policy
in this area:
• strengthening of joint actions within the framework of police and
judicial cooperation between the EUs countries.
• improvement of the mechanism for data collection and information
exchange; stepping up joint action to prevent the smuggling of
migrants and provide assistance to the most vulnerable categories
of migrants.
• strengthening cooperation with third countries in the eld of
combating illegal migration (European Commission, 2015).
The document also emphasized that the implementation of the Plan
should be considered in the broader context of EU policy in such areas as
combating the causes of irregular migration, creating safe legal channels for
migration to the EU, general EU policy in the eld of security and defense
(CSDP), as well as the EU return policy.
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Refugee Crisis 2014–2015 contributed to the strengthening of the
external dimension of the EU migration policy. In the period 2014-2016,
the EU has intensied its interaction with third countries - sources and
transit countries of migrants at dierent levels: within the framework of
the Migration Dialogues at the highest level, the EU summits with Turkey,
African and Western Balkan states (Sadykova, 2016), the dialogue on
mobility and migration between the EU and Africa, the Budapest and
Prague processes, the European neighborhood policy (Potemkina, 2015).
The outcome of the EU meetings with third countries on migration issues
during this period was the project “New Framework Partnership with Third
Countries in the Field of Migration”, approved by the EU Council in June
2016. In accordance with this document, partnerships pursue short-term
and long-term goals.
The short-term goals are: saving lives in the Mediterranean, increasing
the share of illegal migrants returning home, helping migrants and refugees
in their places of residence in order to reduce new attempts of illegal
migration. In the long term, partnerships are aimed at eliminating negative
political, economic, social, climatic, and other factors that are the main
causes (root causes) of illegal migration and forced resettlement. The project
denes a methodology for the implementation of framework partnerships
on migration, which includes ve key elements (areas of activity):
1. Increasing the eectiveness of the policy of return, readmission, and
reintegration of migrants. These policies are aimed at destroying the
business of smugglers and human trackers working on the principle
of “small risks, big prots.” A signicant increase in the percentage
of illegal migrants returning home should signicantly weaken the
motivation of people to pay money to smugglers to organize their
illegal transportation to Europe. To achieve the long-term eect of
the return process (prevention of repeated illegal migration), the EU
(in cooperation with the International Organization for Migration)
promises its partner states active support in the voluntary return and
reintegration of returned migrants (Molinari, 2019).
2. Greater coherence and better coordination between the EU and
Member States is seen as essential to the success of partnerships
with third countries. Some European states (former colonial powers)
have closer bilateral relations with specic third countries due to
longstanding historical and cultural ties. The EU calls on states with
such potential to join forces for the good of a common cause and to
make more active use of their inuence on third countries in order to
facilitate more eective implementation of mutual agreements and
obligations within partnerships (in particular, under readmission
agreements). At the same time, the document emphasizes the
importance of joint work of EU institutions and member states in
tandem with each other.
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Legal regulation of combating illegal migration in Ukraine and the EU
3. Reorientation of EU policies (methods of their use) to address the
problem of illegal migration. Following the meetings in the framework
of the High-level Migration Dialogues, the EU prepared proposals for
the rst packages for concluding contracts (compacts) with 16 third
countries (Ethiopia, Eritrea, Mali, Niger, Nigeria, Senegal, Somalia,
Sudan, Ghana, Cote d’Ivoire, Algeria, Morocco, Tunisia, Afghanistan,
Bangladesh, and Pakistan). Discussions with Member States in
June 2016 identied ve priority African countries (Ethiopia,
Niger, Nigeria, Senegal, and Mali). An individual interaction plan
was developed for each country. Individual agreements (compacts)
represent a new format of partnerships with third countries, in which
the EU has combined its external and sectoral policies (European
Neighborhood Policy, Development Assistance Policy, Foreign
Trade Policy, Energy Policy, Security Policy, Digital Policy, etc.)
into a single system focused on a common goal - to reduce illegal
migration. Migration policy is an important component of the
Compact (Devisscher, 2011).
The EU plans to strengthen the instruments of this policy in cooperation
with third countries:
• introduce a new “structured resettlement system” based on the
general approach of providing safe and legal entry into the EU for
persons in need of international protection.
• expand channels and opportunities for legal migration to the EU
using visa policy instruments.
• develop training programs for migrants, focused on the needs of
labor markets in the EU; facilitate remittances of migrants to their
home countries.
• to create a single platform for registration of displaced persons
in order to accelerate the delivery of necessary assistance to third
countries and the implementation of resettlement of refugees to the
EU or other countries, etc.
4. Eective multilateralism. The need to develop this area is due to
the fact that migration is a global challenge and therefore requires
a coordinated international approach. In the past few years, the
EU has strengthened cooperation in the eld of asylum policy and
combating illegal migration with international organizations (UN
High Commissioner for Refugees, UN International Organization
for Migration), partner countries within the G-7, G-20 groups. In
particular, the EU actively cooperates with UN structures in the
framework of such programs as the global plan for sharing the
burden of responsibility for the resettlement of Syrian refugees, the
program of assistance in the voluntary return and reintegration of
returned migrants (Provine, 2009).
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5. Consolidation and targeting of EU nancial instruments. The EU
stresses the important role of the partnership nancing mechanism.
The choice of these or those nancial instruments should be
determined by the specic goals of the partnerships. For short-
term purposes of partnerships (assistance to refugees and their host
communities), nancial instruments are provided such as the Fund for
Refugees in Turkey, the EU Regional Investment Fund in connection
with the crisis in Syria (Madad Fund), the Trust Emergency Fund for
African Countries. For long-term goals (combating the root causes
of illegal migration), the EU is betting on stimulating private sector
investment in Africa as part of the European External Investment
Plan.
In September 2016, the European Commission published an ambitious
European External Investment Plan for emerging economies, in particular
for Africa and the European Neighborhood. The priority goal of the plan
is to promote the social and economic development of third countries by
attracting investments. The European Commission has contributed 3.35
billion euros to the External Investment Fund by 2020 and plans to attract
another 62 billion euros from other sources - public and private funds, as well
as from the budgets of the member states. This fund will provide guarantees
to government organizations and the private sector when investing in
countries where there are political risks. Any interested company will be able
to receive a guarantee for investing in a project that meets certain criteria.
In particular, the project should contribute to sustainable development, job
creation in third countries and the elimination of the root causes of illegal
migration (Blasi Casagran, 2021).
Thus, counteraction to illegal migration in the EU is unfolding in two
directions. On the one hand, the EU has developed a system of regulations
aimed at introducing uniform rules for illegal immigrants in the EU
countries and criminalizing illegal border crossing. On the other hand, the
EU implements a system of incentive measures aimed at supporting third
countries and facilitating the legalization of migrant ows.
Conclusions
The analysis of the migration legislation makes it possible to distinguish
three types of documents according to their content, related to combating
illegal migration in Ukraine: regulatory legal acts determine the model of
legal entry of a migrant and stay in the country; law enforcement norms
establish responsibility and regulate the application of other coercive
measures in case of violation of migration norms; organizational documents
determine the competence of the authorities involved in the process of
combating illegal migration.
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Yurii Kuryliuk, Mariia Slyvka y Yaroslav Kushnir
Legal regulation of combating illegal migration in Ukraine and the EU
According to the content of international legal regulations, migration
oenses are naturally recognized as illegal. Indication of any other
characteristic of migration in violation of the established rules, apart from
illegality, pursues a purpose other than that required to establish a certain
prohibition.
In Ukraine, the main areas of legal regulation to combat illegal migration
have been: implementation of international migration law in domestic law;
denition of the basic rules of behavior of the migrant in laws; identication
of coercive measures that can be applied to individuals and legal entities
involved in migration processes; the correlation between state border
legislation and migration legislation; emergence of separate legislation
regulating entry into and exit from the temporarily occupied territory of
Ukraine; openness of the legal system of Ukraine to the application of new
sources of law, in particular decisions of international and national courts.
The protection of the external border and the ght against illegal entry
into the territory of the EU is entrusted to national border formations,
mainly of the police type, the interaction and coordination of which is
provided by a special European agency. EU standards for combating illegal
migration in the protection of state codons should be dened as enshrined
in EU law principles, assets (values), norms, criteria, forms, and methods of
law enforcement, used on the basis of combining humanity and eciency to
regulate the activities of border control authorities.
In contrast to Ukraine, where combating illegal migration is mainly
limited to the establishment of bans and nes for illegal migrants, the
EU has developed a system of incentives and support measures aimed at
supporting third countries. The main areas of combating illegal migration in
the EU are: increasing the eectiveness of the policy of return, readmission
and reintegration of migrants; greater coherence and better coordination
between the EU and Member States, which is seen as essential to the
success of partnerships with third countries; reorientation of EU policies
(methods of their use) to address the problem of illegal migration; eective
multilateralism; consolidation and targeting of EU nancial instruments.
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