HOW TO APPEAL UA VISA REJECTION
WHY VISAS ARE REJECTED?
Ukrainian visa legislation provides for 10 reasons when a visa is rejected:
threat to national security or protection of public order;
threat to health care, protection of the rights and legitimate interests of citizens of Ukraine and other persons residing in Ukraine;
the presence of information about a foreigner or a stateless person in the database of persons who, in accordance with the law, are not allowed to enter Ukraine or temporarily restricted the right to leave Ukraine;
establishment that the submitted passport document of a foreigner or a stateless person is forged, spoiled or does not correspond to the established sample or belongs to another person;
submission of knowingly false information or forged other documents;
the foreigner or stateless person does not have a valid health insurance policy, provided that it is possible to obtain it on the territory of the state in which the relevant visa application is submitted;
the foreigner or stateless person does not have sufficient financial security for the period of the planned stay and to return to the country of origin or transit to a third country or the opportunity to obtain sufficient financial security in a lawful manner on the territory of Ukraine;
lack of evidence confirming the purpose of the planned stay of a foreigner or stateless person in Ukraine;
the absence of documents that make it possible to establish the intention of a foreigner or stateless person to leave the territory of Ukraine before the expiration of the visa;
the applicant's request to terminate the consideration of the visa application.
I would dwell on number 8 – a fail to prove the real reason of visit. It is the most difficult one to deal with because it is very subjective and is used even when your documents are in perfect order, everything is neat but you seem suspicious to a consular and based on this he can deny you a visa. Thus, a foreigner must be very well prepared to minimize the chance of being rejected a visa.
HOW TO GET PREPARED FOR THE INTERVIEW
First of all, there are many reasons for visiting Ukraine. E.g. it could be a tourist purpose, business purpose, private purpose, etc. So, each particular case is different.
But let’s consider a tourist purpose, for instance. There is no some standard list of questions. Just try to look at yourself with the consular’s eyes. You are getting into a trouble usually when you can’t explain why:
you have never travelled to another country before;
you want to visit Ukraine instead of Paris (for example), what other possible tourist destinations you considered;
you want to come to Ukraine now. This is a very good question during the global lockdown time;
you can’t explain what exactly you want to visit in Ukraine and you can’t clearly describe your itinerary;
Let’s consider another case when a foreigner is applying for a D-04 visa (working visa) to come to Ukraine to become the director of his own Ukrainian company. In this case you are getting into a trouble usually when:
you never did any business and all of a sudden you decided to open one in Ukraine;
neither your education nor past work experience has anything in common to the business you are going to run in Ukraine;
you are not sure about your company’s name, its share capital, how it is formed, why the share capital was made in this amount, where the company’s office is located, why you chose this Ukrainian city for your business instead of another one;
you can’t explain how you found the first company’s director, his name, his background, his payment terms;
you don’t know the registration process at least in general details like who registered the company for you;
If you can’t answer all such questions then all seems like your real purpose is illegal immigration and, in this case, the consular is not going to give you a visa.
WHAT IF A VISA IS DENIED
The Ukrainian law is very clear about your options when a visa is denied and actually these options are mentioned in the visa rejection notice you receive. All what can be done here is:
to reapply; or
to appeal the rejection.
However, lawyers know that there is one more option – to file a lawsuit. Even though this option is not envisaged by the visa regulation the right to protect yourself in court is the Constitutional right and you do can go to court in this case as well.
Now let’s consider each of these options.
Often agents and other people say that to reapply is always better than to appeal. The reasoning is rather strange – next time you might have more luck.
We cannot agree with such an approach as it is generic and doesn’t take into account the real circumstances of every particular case.
Yes, sometimes a foreigner does not get a visa the first time and after he reapplies the visa is granted. But this has very little with luck.
Reapplying is simply submitting the documents all over again from the scratch, including paying the consular fee again. It is a whole new process.
If you don’t understand the reason of visa rejection, then reapplying becomes a lottery because when you reapply your visa application is considered by the same consular who has already reviewed the same documents and already denied you a visa.
Reapplying is a proper option when you know why you were denied a visa, you fixed the problem and submit the documents again. In this case your chances to get a visa are high.
There is one more case when reapplying might be used. It is when the visa was rejected not by the consular but by some other authority in Ukraine. In this case, when you reapply, your case might get to another officer in Ukraine and he might not find a reason to reject the visa. But it is still a lottery.
When you appeal you don’t start the whole process from the scratch, you do not pay the consular duty again. You write and submit your written explanation why you believe your visa was rejected without a good reason.
Thus, if a visa was rejected without a valid reason, then an appeal is a better option because when you appeal you are free to substantiate your appeal with any document and as much information as necessary. Clear explanations and extra information substantiated by proper evidence can make the consular look at your case from another angle and persuade him to change his previous decision.
Some are afraid to appeal because they don’t want to get in a dispute with a consular. But this will not happen. The appeal is not a complaint where you claim the consular is wrong, idiot, corrupted or whatever. The appeal is a chance for you to explain your situation in mode details.
The appeal is a very useful option when the circumstances are right.
The weak side of the appeal option is that you appeal to the same consular who has already rejected your visa.
Filing a lawsuit against the consulate or another state authority involved in the visa process is not popular and this is for a reason. The final decision to give a visa or reject it is the prerogative of the relevant authority.
Courts cannot oblige a consular, for instance, to issue a visa if he believes that there is no ground for this. E.g. your documents were in good order but you failed to provide clear answers during the visa interview that made the consular suspicious in your real intentions.
But what courts can do is to ascertain that there was a violation of law during the process and to oblige the relevant authority to reconsider the case. E.g. the consular rejected your visa because he believed your travel insurance was not appropriate while your travel insurance was fine.
HOW TO CHOOSE THE BEST COURSE OF ACTION
The most important task is to find out the real reason of visa rejection. Understanding this will help choose the optimal course of action.
A rejection notice will not provide a detailed explanation, you will get only a general description in the form of a ticked box. But still it will guide you where to dig.
I would say that attracting a lawyer at this stage is even more important than having one when you apply for a visa.
The good news is that there is a free online immigration lawyer iVan and it provides a free of charge possibility to analyze your visa rejection case as well as it provides for advice for further actions.
VISA IS NOT A GUARANTEE
It is also important to stress that even when you get a visa it does not mean that you will be allowed to enter Ukraine in any case. A border guard has full authority to deny you entering Ukraine if he finds you suspicious.
E.g. you got a private visa based on an invitation from some Ukrainian citizen. A border guard may ask you how long you have known each other, where you will stay, etc. and if you answer that you in fact come as a tourist and the invitation was a pure formality then you may be sent back home.
It is very important to understand that a consular is not the only one state officer who considers visa applications.
If you have a look at the relevant visa legislation, i.e. at the Requirements to processing visa applications (https://zakon.rada.gov.ua/laws/show/z1432-17#Text) and in particular at clause 3 section I, then you will read that the following state authorities are involved in the visa process:
1. the Ministry of Foreign Affairs (consulates);
2. the State Border Service (border guards);
3. the State Immigration Service;
4. the State Security Service;
5. the Foreign Intelligence Service.
Often we hear and see about “guarantees” in the visa process offered by agents and even lawyers. The only thing we can comment here is that any guarantee is not possible. It is a marketing hook to win your trust and to stimulate you to buy a service from them.
They may say that by a guarantee they mean that in case of a visa rejection they return their fee. But it is not a guarantee.
Also, some people offer one fee for, let’s call it, a standard process and a higher fee for, let’s call it, a guaranteed process. But it sounds like for $1 we will do a so-so job and for $2 we will try to do our job better.
The guarantee may be only in the case of corruption and in the visa process it must be on a very high level because 5 different state authorities are involved during the process. You would need to bribe all of them.
BRIBES AND MASS REJECTIONS
There are rumors that Ukrainian consulates in some countries are so corrupted that it is impossible to obtain a visa without paying a bribe.
We cannot neither confirm nor disprove these rumors. However, we can look at facts. One of such asserted corrupted consulates is in India. Despite such a notorious reputation 14 854 Indian citizens applied for Ukrainian visas in 2019 and only 794 applications were rejected that is approximately 5% only. Indian citizens are also the largest national expat community in Ukraine.
Everyone is free to make conclusions at his own discretion.
Contact Legal Ideas law firm to get advice on your personal case.