How do you challenge a DMS refusal in a Ukrainian court?

When to go to court

Court is the right step when the ДМС (State Migration Service, DMS) refused unlawfully and filing again with the same documents will change nothing. That applies to a refusal to issue, exchange or extend a посвідка (temporary residence permit, TRP) and to other DMS decisions. Sometimes an administrative complaint is worth trying first, and the article on the administrative complaint explains it. If the DMS keeps taking the wrong position, though, a court is more reliable. For the full picture, read the guide to challenging DMS decisions.

Which court

Article 20 of the Code of Administrative Procedure (CAP) divides cases between courts. Local general courts, acting as administrative courts, hear cases about foreigners' stay that concern forced return, expulsion and detention. All other disputes with the DMS, including TRP refusals, go to district administrative courts.

For return and expulsion cases the CAP sets a fast-track procedure. The court hears them within ten days with both parties required to attend, and no court fee is charged. These cases are covered in the article on forced return and expulsion.

Deadlines

The general deadline for going to an administrative court under Article 122(2) of the CAP is six months. It runs from the day the person learned, or should have learned, that their rights were infringed. The Code and other laws may set special deadlines, and for migration decisions they are often shorter. In return and expulsion cases Article 288 of the CAP gives the court ten days to hear the case, and an appeal must be filed within the same period.

If you decide to start with an administrative complaint against a TRP refusal, paragraph 77 of Procedure No. 322 gives you 30 calendar days for it.

So the key rule is this. Do not wait, and do not expect the DMS to change anything on its own. When a refusal arrives, show it to a lawyer straight away and find out which deadline applies to your decision.

What you have to prove

The court checks whether the DMS acted on a legal basis, within its powers and in the way the law prescribes, whether the decision is reasoned and whether it took all circumstances into account. The lawsuit therefore explains which rule was breached and attaches the evidence.

Your strongest evidence is the documents you filed with the DMS that it ignored or misjudged. If the DMS points to a mismatch in your data, show that there is none. If it says a document was missing, show that you filed it. Typical reasons for refusal are listed in the article on TRP refusals.

How to file the lawsuit

The statement of claim is filed in writing, on paper or through the electronic court system. It names the court, the parties (you and the DMS office), what was breached, what you ask the court to do and the list of evidence. Attach a copy of the DMS decision, the documents you filed and proof of payment of the court fee, unless the case is exempt.

You, the foreigner, are the claimant, but it is easier to run the case through a representative. If you are abroad, the power of attorney is signed there and legalised, as the article on apostille and legalisation explains. Every piece of evidence in a foreign language needs a Ukrainian translation.

Appeal

If the first-instance court rules against you, its judgment can be appealed to the court of appeal. For return and expulsion cases the CAP sets ten days for an appeal, while other cases follow the general rules of the Code. The appeal is drafted around the first court's findings, so bring in a lawyer as soon as the judgment is announced.

What the court can decide

The court can declare the DMS decision unlawful and cancel it. In most cases it also orders the DMS to review the application again in line with the court's findings. As a rule the court cannot issue the permit itself, so after a win the case goes back to the DMS. The DMS must comply with a judgment once it becomes final.

Staying in Ukraine during the case

Filing a lawsuit does not in itself extend your permitted stay in Ukraine. If your period of stay is ending, you need a separate ground, such as an extension of stay from the DMS. Exceptions exist for certain decisions. A court challenge to the revocation of an immigration permit, for example, suspends enforcement of a forced return decision. The details are in the article on revocation of an immigration permit.

Lawyer's experience

Lawsuits against the DMS are most often lost not because the position is weak, but because the deadline was missed or the evidence was not there. Someone files documents, gets a refusal and only asks for help several weeks later. That is why I advise acting as soon as the decision arrives.

Expectations are my second point. Even a court win does not mean an instant permit. The court orders the DMS to look at the application again, and we stay with the client at that stage so the second attempt does not end the same way.

If the DMS has refused you, book a migration law consultation and we will assess whether a lawsuit has prospects.

Frequently asked questions