Rudi Friedrich (Connection e.V.) — on August 14, 2024
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A few days ago, it was reported in the press that Ukrainian men of military service age will not be issued travel documents for foreigners. Connection e.V. and PRO ASYL had called for this in May 2024. The Hessian Ministry of Social Affairs and Integration refused to issue travel documents, stating that it was reasonable to expect those affected to travel to Ukraine to obtain a passport and fulfill their military service obligations. How should this be assessed?
According to estimates, there are around 100,000 Ukrainian men liable for military service in Germany who have been granted residence under the so-called Temporary Protection Directive, regulated in §24 AufenthG. There are also thousands more who have been able to establish residence in Germany with a work visa. For some months now, Connection e.V. has also been receiving inquiries from Ukrainian soldiers or their relatives who are on family leave or in Germany for military training as to what residence options they have when they leave the military.
The current discussion mainly concerns those whose Ukrainian passports are no longer valid. The principle according to §5 AufenthG states that a valid passport must be available for a stay. However, there are exceptions to this. Here is an overview.
RESIDENCE ACCORDING TO §24 AufenthG
The residence and residence permits according to §24 for Ukrainians liable for military service are not in question. There is already an agreement at European Union level that this residence permit will be extended until March 2026. This residence permit remains valid even if a valid passport is no longer available. §5 (3) AufenthG clearly stipulates that if a residence permit is issued in accordance with §24, the passport requirement is waived.
However, the Hessian Ministry of the Interior, for Security and Homeland Security refuses to issue them with passports for foreigners. Instead, “the persons concerned then receive the residence permit as a substitute for an ID card and thus fulfill the passport requirement in Germany”, according to the Department for Immigration and Integration City and District of Kassel when asked. The consequence is that they can stay in Germany and identify themselves, but are unable to travel abroad.
RESIDENCE WITH A WORK VISA
The situation is different here and in fact residence with a work visa is linked to a valid travel document. This is regulated in accordance with §5 (1) AufenthG. For this group of Ukrainian men liable for military service, the situation is very precarious if the passport loses its validity. It must be considered on a case-by-case basis whether a stay can be justified for other reasons. Possibilities such as naturalization after a longer stay in Germany, residence according to §24 AufenthG or others are conceivable.
FLEEING FROM THE UKRAINIAN ARMY ABROAD
Anyone who absents themselves from the military during active military service, e.g. during home or family leave or during military training, is considered to have deserted. In Ukraine, prosecution for unauthorized absence or desertion could follow.
In principle, Ukrainian soldiers who are in Germany have the option of applying for a residence permit in accordance with §24 AufenthG. However, we have received reports that German authorities have sometimes informed the Bundeswehr or the US Army of requests from this group of people.
RIGHT TO CONSCIENTIOUS OBJECTION IS SUSPENDED
If conscientious objectors oppose their recruitment, the military initiates criminal prosecution. The penalty for this is one to five years’ imprisonment. The sentences handed down so far have been one to four years (sometimes suspended). Soldiers who refuse military service must expect to be harassed or that their applications will not be accepted. The army also prevented soldiers from attending court hearings on their conscientious objection. There are lawsuits before the Supreme Court of Ukraine against the suspension of the possibility of submitting an application, against sentences of imprisonment and against conscientious objectors not being released from the army.
Further information on this can be found in the 2023/24 annual report of the European Bureau for Conscientious Objection (EBCO).
HOW TO APPLY FOR A NEW UKRAINIAN PASSPORT?
New passports will only be issued by Ukraine if those affected report to Ukraine, are re-registered in the military there and are mustered. If they return to Ukraine, they are threatened with conscription into the war in any case. And due to Ukraine’s ban on leaving the country, which has been in place since the start of the war, they can no longer leave.
LAST CHANCE ASYLUM?
Due to the difficult situation, there is always the consideration of applying for asylum. This is possible in principle. An application for asylum also means that deportation is ruled out for the duration of the asylum procedure due to the protection afforded by the Geneva Refugee Convention. However, the question arises as to whether an asylum application really has a chance of being recognized. And here we have to conclude that the chances are extremely slim. As a rule, persecution for desertion or conscientious objection is not considered grounds for asylum.
The fact that Ukraine has suspended the (limited) right to conscientious objection to military service since the beginning of the war, thus violating the decisions of the European Court of Human Rights (ECtHR), will not be accepted as a reason for obtaining refugee protection. In the case of convinced conscientious objectors, the most that could be considered is protection against deportation if they have already tried in vain to submit an application for conscientious objection to the Ukrainian authorities.
IS DEPORTATION POSSIBLE?
Extradition at the request of Ukrainian authorities on the grounds of military offenses is not possible under the European Convention on Extradition.
DISINFORMATION AS A POLITICAL TOOL OF UNCERTAINTY
In the current debate, it is interesting to note that the Hessian Ministry of Social Affairs and Integration declared that it would not issue travel documents for foreigners, stating that it would be reasonable to expect those affected to travel to Ukraine to obtain a passport and to comply with compulsory military service. If we look at the actual regulation, this is contradictory. In this respect, this is another attempt to unsettle the Ukrainian refugees and call their stay into question, although clear limits are set by law. Something similar has happened again and again in recent months. For example, the Ukrainian government announced its intention to submit extradition requests. However, these are not permitted for military offenses. So it was not legally tenable, but it caused unrest in the community.
Here in Germany, in the face of these disinformation campaigns, the aim is to provide accurate information in different languages and to inform people about it in the advisory service.
Anyone who has contact with those affected will experience their worries and needs first-hand. If it is uncertain or unclear for those affected, we are happy to help. For us, everyone has the right to refuse military service, even in a defensive war.
European Bureau for Conscientious Objection
Hessian Ministry of Social Affairs and Integration
Hessian Ministry of the Interior, for Security and Homeland Security
Department for Immigration and Integration City and District of Kassel
European Court of Human Rights
§24 Granting residence for temporary protection
§5 General preconditions for the granting of a residence title
European Convention on Extradition — Council of Europe
Photo: Wikimedia, Antiterrorist Operation