What are the deadlines for challenging DMS decisions in court in Ukraine?

The general deadline

Article 122 of the Code of Administrative Procedure (CAP) sets a general deadline of six months for a lawsuit brought by an individual. It runs from the day you learned, or should have learned, that your rights were infringed. Most decisions of the ДМС (State Migration Service, DMS), such as a refusal to issue a residence permit or its revocation, fall under this deadline unless the law sets a different one. For the wider picture of disputes with the migration service, see the guide to challenging DMS decisions.

The words "should have learned" matter. If the decision was sent by registered post to your address and you never collected the letter, the court may find that you should have learned of the decision earlier. Keep an eye on the post at the address you gave in your application to the DMS.

The deadline after an administrative complaint

Part four of Article 122 of the code has a separate rule for people who first used the pre-trial route. If you filed an administrative complaint, the deadline for a lawsuit is three months from the day the decision on the complaint was served on you. If the decision on the complaint was not made or not served within the period set by law, the deadline is six months from the day you filed the complaint.

A complaint therefore does not take away your chance to go to court. The deadline for the complaint itself, however, is short. Under the Law "On Administrative Procedure" a complaint is filed within thirty calendar days, and special rules set their own deadlines for certain decisions. How to file one is explained in the article on the administrative complaint.

Special deadlines

For some migration decisions the law sets deadlines of their own. The main ones are these:

A special deadline takes priority over the general one. If a decision concerns your situation, check whether a separate rule covers it before you rely on the general deadline.

• a refusal of an immigration permit can be challenged administratively within two months of the day it was made;
• a decision refusing entry at the border is challenged within one month;
• a refusal to extend the period of stay is challenged within 10 working days;
• a refusal to recognise a person as stateless is challenged in an administrative court within 20 working days of receiving the notice.

Return and expulsion

Decisions on forced return and forced expulsion are challenged under the special rules of Article 288 of the code. The claim goes to a local general court acting as an administrative court. The court hears the case, with both parties required to take part, within ten days of the day the claim is filed.

An appeal in such cases is likewise filed within ten days of the day the judgment is announced. No court fee is charged for claims or appeals in these cases. The return procedure itself is covered in the article on forced return, and detention in the article on detention of foreigners.

Appeal

If the first-instance court rules against you, its decision can be appealed. Under Article 295 of the code an appeal against a court decision is filed within thirty days, and against a ruling within fifteen days of the day it is announced. If only the introductory and operative parts were announced, or the case was heard in writing, the deadline runs from the day the full decision was drawn up.

A party who was not handed the full decision on the day it was announced can have the deadline restored. To do so, the appeal must be filed within the same period counted from the day the full decision was served. The court may also restore the deadline for other valid reasons.

If the deadline has passed

Missing the deadline does not always close the way to court. Article 123 of the code provides that a claim filed late without an application to restore the deadline is left without progress. After that you have ten days from the day the ruling is served to apply for the deadline to be restored or to point to other grounds.

Courts accept as valid reasons circumstances that objectively prevented you from applying in time. Examples are illness, being abroad without access to your documents, or not receiving the decision through the authority's fault. Each reason must be backed by documents. General references to being busy or not knowing the law are usually not accepted.

How to count

A deadline set in months ends on the corresponding date of the last month. A deadline set in days starts on the day after the event. If the last day falls on a day off, the deadline ends on the first working day after it. The deadline is not missed if the claim was handed to the post office or filed through the electronic court system before it expired.

Write down the date the decision was served as soon as you receive it, and keep the proof. That can be an envelope with a postmark, a receipt or a screenshot of the DMS letter. This is the date from which the court will count.

Every deadline mentioned in this article is collected in the table.

Lawyer's experience

Foreigners most often lose the right to go to court not because their position is weak, but because of the deadline. Someone receives a refusal, spends several weeks trying to settle the matter verbally at the DMS, and then finds out the special deadline has already expired. So I advise counting the deadline on the very day you receive the decision.

My second piece of advice concerns expulsion. The deadlines there are the shortest, and the case may be over within a few weeks. If you have received a forced return decision, contact a lawyer straight away.

If you have a DMS decision and want to challenge it in court, book a migration law consultation and I will calculate the deadline and assess your chances. How to draft the claim is explained in the article on challenging DMS decisions in court.

Frequently asked questions