Court refuses forced removal of our client – an Iranian national – from Ukraine

The team of LESHCHENKO & PARTNERS, represented by Managing Partner Oleksandr Leshchenko and Attorney Artur Tryholov, secured a victory in a case concerning the protection of a foreign national against forced removal from Ukraine.

The court of first instance fully dismissed the claim of the Migration Service seeking the detention of a citizen of the Islamic Republic of Iran for the purpose of placing her in a temporary holding facility and subsequently enforcing her removal from Ukraine.

By its ruling, the Sixth Administrative Court of Appeal upheld the decision and dismissed the appeal filed by the Migration Service (case No. 750/193/26).

Background of the case

The claim of the Migration Service was based solely on the formal ground of the expiration of the client’s lawful period of stay in Ukraine.

At the same time, the authority failed to properly consider circumstances preventing her forced return to the country of origin — in particular, the existence of a real risk to her life and liberty on the grounds of race, religion, nationality, citizenship, membership of a particular social group, or political opinion.

The client converted to Christianity (Orthodox faith) and renounced Islam (apostasy). For this reason, she did not leave Ukraine, reasonably fearing persecution in the event of her return.

Legal position of the defence

The team of LESHCHENKO & PARTNERS demonstrated that:

• the client had neither direct nor indirect intent to deliberately violate Ukrainian migration law;

• she consistently informed the authorities of the real threat to her life and health in the event of return;

• the migration authorities failed to properly examine circumstances preventing forced removal;

• the refusal to grant refugee status or subsidiary protection was issued in violation of applicable legislation.

Furthermore, during the court proceedings, the defence drew the court’s attention to well-known facts that do not require proof: in the Islamic Republic of Iran, individuals who renounce Islam and change their religion may face persecution and punishment both by state authorities and by non-state actors. Such circumstances create a real danger for persons professing another faith.

The court took these circumstances into account when assessing the existence of a real risk to the client’s life and liberty in the event of her return to the country of origin.

The defence strategy was developed taking into account the current case law of the Supreme Court and international human rights standards, in particular the principle of non-refoulement.

Significance of the decision

This ruling is of practical importance for disputes concerning the detention of foreign nationals and their forced removal.

The court confirmed that a purely formal approach to migration procedures cannot prevail over the State’s obligation to assess real risks to a person’s life and liberty.