ID-card or booklet passport: court's position on replacement of passport in case of need to insert photo

 

With the introduction of ID-cards at the state level, not all Ukrainian citizens have started replacing their booklet passports with plastic cards. And over time, a process of misunderstandings between the Migration Service and Ukrainian citizens regarding the insertion of photos began. Quite often, the Migration Service refuses to insert a photo and offers to replace the old passport with a new passport, arguing that there is currently a resolution of the Cabinet of Ministers of Ukraine on the replacement of all booklet passports with new ID cards. But is this really the case and what is the court's position if this case is considered in court?

VIOLATION OF THE LAW BY THE MIGRATION SERVICE?

Kyiv District Administrative Court, in the framework of case No. 320/3939/23, considered a claim from a citizen of Ukraine to the Central Interregional Department of the State Migration Service in Kyiv and Kyiv region represented by the Sviatoshynskyi Department of the Central Interregional Department of the State Migration Service of Ukraine in Kyiv and Kyiv region regarding the recognition of actions as unlawful and the obligation to take certain actions. The matter is that a citizen of Ukraine applied to the Migration Service for pasting a photo in his passport in connection with reaching the age of 45, in accordance with the Regulations on the passport of a citizen of Ukraine, approved by the Verkhovna Rada of Ukraine of 26.06.1992 № 2503-XII. However, the Migration Service, by its letter dated 18 January 2023 No. K-2558/6/8010-22/8010.5/194-23, informed the plaintiff that there were no legal grounds for pasting a photograph into the passport of a citizen of Ukraine in the form of a booklet. The plaintiff did not agree with this, so he went to court.

COURT PROCEEDINGS

In considering any claim, the court is guided by the rule of law, and thus the Constitution of Ukraine has the highest legal force. Article 5 of the Law of Ukraine No. 2235-III dated 18 January 2001 "On Citizenship of Ukraine" stipulates that the document confirming the citizenship of Ukraine is, in particular, the passport of a citizen of Ukraine.

The Law of Ukraine No. 5492-VI of 20 November 2012 "On the Unified State Demographic Register and Documents Confirming Ukrainian Citizenship, Identity or Special Status" defines the legal and organisational basis for the establishment and functioning of the Unified State Demographic Register and the issuance of identity documents confirming Ukrainian citizenship or special status. Article 13(1) of the same law stipulates that the documents to be issued by this law with the use of this Register are divided into identity documents and documents confirming Ukrainian citizenship, which include the passport of a citizen of Ukraine. Article 14 of the same law establishes the form of each document, which includes the passport of a citizen of Ukraine, and defines them in the form of a booklet or card, except for the certificate of return to Ukraine, which is made in the form of a booklet. At the same time, part 4 of Article 13 of this Law states that persons are guaranteed the right to refuse to enter digitised fingerprints into a contactless electronic medium contained in the passport of a citizen of Ukraine. This right is exercised by submitting an application to the relevant authorised entity on entering or refusing to enter digitised fingerprints of a person into a contactless electronic medium.

The Cabinet of Ministers of Ukraine adopted Resolution No. 302 dated 25.03.2015, by which it approved the Procedure for registration, issuance, exchange, transfer, withdrawal, return to the state, invalidation and destruction of the passport of a citizen of Ukraine (hereinafter - Procedure No. 302). Paragraph 2 of Procedure No. 302 of 25.03.2015 "On Approval of the Sample Form, Technical Description and Procedure for Issuance, Issuance, Exchange, Transfer, Withdrawal, Return to the State, Invalidation and Destruction of the Passport of a Citizen of Ukraine" provided for the introduction of the Unified State Demographic Register:

  • starting from 01.01.2016 - preparation and issuance of a passport of a citizen of Ukraine with a contactless electronic medium and a passport of a citizen of Ukraine that does not contain a contactless electronic medium, the samples of which are approved by this Resolution, to citizens of Ukraine who are applying for a passport of a citizen of Ukraine for the first time, taking into account the requirements of paragraph 2 of the Regulation on the Passport of a Citizen of Ukraine, approved by the Resolution of the Verkhovna Rada of Ukraine No. 2503-XII dated 16.06.1992;
  • from 01.11.2016 - issuance (including replacement of a lost or stolen passport), exchange of a passport of a citizen of Ukraine with a contactless electronic medium, the sample form of which is approved by this Resolution, to citizens of Ukraine in accordance with the Procedure for issuance, issuance, exchange, forwarding, withdrawal, return to the state, invalidation and destruction of a passport of a citizen of Ukraine approved by this Resolution.

Instead, a passport of a citizen of Ukraine that does not contain a contactless electronic medium, issued on the basis of documents submitted before 01.11.2016, is valid for the period for which it was issued. The withdrawal, return to the state, invalidation and destruction of the passport of a citizen of Ukraine of the 1994 model is carried out in accordance with the Procedure for the execution, issuance, exchange, transfer, withdrawal, return to the state, invalidation and destruction of the passport of a citizen of Ukraine approved by this Resolution.

Paragraph 8 of Regulation No. 2503 provides that the validity of a passport issued in the form of a passport book is not limited. At the same time, when a citizen reaches the age of 25 and 45, new photographs corresponding to his or her age are pasted into the passport book. A passport that does not have such photographs pasted in when its holder reaches the specified age is considered invalid. Pursuant to clause 15 of Regulation No. 2503, a passport and two photographs of the specified size are submitted for pasting new photographs into a passport upon reaching the age of 25 and 45.

At the same time, the court notes that a passport that does not have photographs pasted in when its holder reaches the specified age is considered invalid for the purpose of identifying the relevant person, but the recognition of a passport as invalid does not result in its withdrawal. In addition, Regulation No. 2503 and Procedure No. 302 do not prohibit the insertion of a new photo into a person's passport after the expiry of the specified thirty-day period.

Therefore, the court concluded that the plaintiff's failure to meet the deadline for applying to the defendant with an application for pasting a new photo into the passport of a citizen of Ukraine in the form of a booklet, due to reaching the age of 45, was a violation of the requirements of paragraphs 8 and 15 of Regulation No. 2503 and subpara. 6 of clause 6 of Order No. 302. The plaintiff may be held administratively liable for this violation, but this cannot be interpreted in such a way that a person should be deprived of the right to insert a new photo into the passport and, as a result, deprived of the right to use a passport in the form of a booklet. The plaintiff's lack of a valid passport significantly restricts the exercise of his rights guaranteed by the Constitution and laws of Ukraine, in particular the right to freedom of movement and free choice of residence, the right to health care and social protection, to conclude civil law contracts, to conduct banking transactions, to issue powers of attorney (orders) to other persons for the representation of interests, etc.

COURT DECISION

In its decision, the court satisfied the claims:

  • declared unlawful the refusal of the Central Interregional Department of the SMS of Ukraine in Kyiv and Kyiv region to paste a photograph in the plaintiff's passport in connection with the achievement of the age of 45, in accordance with the Regulations on the Passport of a Citizen of Ukraine, approved by the Resolution of the Verkhovna Rada of Ukraine dated 26.06.1992 No. 2503-XII.
  • The court ordered the Central Interregional Department of the SMS in Kyiv and Kyiv Oblast, represented by the Sviatoshynskyi Department of the Central Interregional Department of the SMS of Ukraine in Kyiv and Kyiv Oblast, to paste the plaintiff's photo into his passport in connection with his reaching the age of 45.
  • To recover in favour of the plaintiff at the expense of the budgetary allocations of the Central Interregional Department of the State Migration Service of Ukraine in Kyiv and Kyiv Region a court fee in the amount of UAH 1,073.60.

COMMENT

In this case, we see that the Obligor, the Central Interregional Department of the SMS in Kyiv and Kyiv Region, represented by the Sviatoshyno Department of the Central Interregional Department of the SMS of Ukraine in Kyiv and Kyiv Region, really violated the plaintiff's rights as a citizen of Ukraine.

Understanding that the decision to refuse to paste a photo in his passport due to reaching the age of 45 was illegal and unlawful, the plaintiff wasted no time in going to court to seek justice.

The court, having considered all the materials and taking into account the legal analysis of the situation and the decision, concluded that the decision to refuse was indeed unlawful.

Therefore, if you believe that your rights and freedoms have been violated by the Migration Service or any other government agency, do not lose faith. It is worth contacting EVROVECTOR Law Firm for advice on how to establish legal justice and violation of your legal rights.