Grounds for citizens of Ukraine to cross the state border under martial law

Ever since the start of the Russian military aggression on Ukrainian territory, one of the most pressing issues for Ukrainian citizens has been the issue of crossing the state border for temporary evacuation.

Since the beginning of the war, crossing the state border has de facto been carried out in accordance with a clarification published on the website of the State Border Guard Service of Ukraine (hereinafter, the “SBGS”), the essence of which was that all women and children (persons under 18) could cross the border without any restrictions (even if they had no Ukrainian passport to travel abroad), while men aged 18-60 were not allowed to cross, except for the express exceptions provided in the above-mentioned clarification.

Since then, the SBGS of Ukraine, through letters and additional clarifications published on its website, has repeatedly adjusted the list of persons entitled to cross the state border during martial law and the documents granting this right, including adding exceptions whereby men aged between 18 and 60 have the right to cross the border.

However, there was no proper regulation of this issue (at the level of regulatory acts) in the early weeks of the war.

Subsequently, during March-April, the Cabinet of Ministers of Ukraine introduced a number of amendments to The Rules of State Border Crossing for Citizens of Ukraine¹ (hereinafter referred to as the Border Crossing Rules), which introduced more or less clear conditions for crossing the state border during martial law. It is these rules that are applied by the SBGS of Ukraine today, subject to some additional clarifications posted on its own website.².

For the purpose of systematization and clarification, we present below our comments on the main rules and conditions for crossing the state border that are valid and applicable today.

First and foremost, it should be noted that the current version of the Border Crossing Rules does not explicitly define an exhaustive list of persons who are entitled to travel abroad under martial law. However, such a list can be conventionally formed based on the content of the Border Crossing Rules, a number of other normative legal acts, as well as official explanations of the State Border Guard Service of Ukraine. These persons can be roughly divided into the following groups:

1. Persons who are not eligible for military service, i.e. not in the reserve to man the Armed Forces of Ukraine and other military formations for a special period, or to perform works to ensure the defense of the state

This category may include all persons under the age of 18 as well as men who have reached the age of 60 (because according to Article 28 of the Law of Ukraine on Military Duty and Military Service, this is the age limit of those subject to military service).

As for women, the issue is not so clear-cut.

Thus, on the one hand, as stipulated by paragraphs 11-12 of Article 1 of the Law of Ukraine “On Military Duty and Military Service”, women with a qualification and/or profession related to the relevant military occupation, defined in the list approved by the Ministry of Defense and fit for military service due to their health and age, are enrolled in the military registration of persons liable for military service. In addition, women who are on the military register may be called up for military service or involved in wartime national defense work.

The original list of military registration specializations, providing for the compulsory military registration of women, was approved by Order of the Ministry of Defense of Ukraine No. 313 of 11.10.2021, which provided for more than 100 varieties of such occupations. In other words, according to the logic of this order, almost every working woman had to register for military service.

However, by Order of the Ministry of Defense of Ukraine No. 35 of 07.02.2022, the above list was amended by reducing it to 21 varieties of occupations that provide for the military registration of women. For example, among others, such occupations as river and sea transport, water engineering, shipbuilding, law and law enforcement, secretaries and many others have been excluded from the list. The occupations such as accounting and taxation, marketing, management, entrepreneurship, economics, finance, banking and insurance, and translators, for example, remain on the list.

It should also be noted that according to the latest Order of the Ministry of Defense of Ukraine No. 35 of 07.02.2022, even those women whose professions are covered by the above list do not have to register for military service immediately, but only starting from 01.10.2022.

At the same time, within the meaning of the Law of Ukraine “On Military Duty and Military Service”, women who are not on the military register, regardless of their profession, are not considered as persons liable for military service.

In this regard, as of today, in fact and in accordance with the position of the State Border Guard Service of Ukraine (as explained on the SBGS hotline), all women are free to cross the state border under martial law.

In view of the above, in the remainder of this consultation, only men aged between 18 and 60 will be considered as persons liable for military service.

2. Persons liable for military service who are not subject to military conscription during mobilization

This category, according to Article 23 of the Law of Ukraine “On Mobilization Preparation and Mobilization”, includes the following persons:

* Reserved from mobilization – employees of enterprises, institutions and organizations, who have received deferment from conscription for military service during mobilization, under the procedure of reservation, provided by the Resolution of the Cabinet of Ministers of Ukraine dated 03.03.2022, № 194 “Some issues of reservation of persons liable for military service under the legal regime of martial law”.

The document which confirms the right of the reserved person to cross the border is the certificate of suspension (excerpt from the reservation order). In addition, the SBGS of Ukraine in some of its letters of explanation³ also refers to the need to provide documents on the business trip of the respective booked person abroad. However, there is no legislative justification for requiring the said travel document.

Drivers engaged in international freight transportation for the needs of the AFU, transportation of medical supplies and humanitarian aid may also be included in this category. Reservations for such drivers may be issued by military administrations or the Ministry of Infrastructure of Ukraine.

* People with disabilities

* Persons declared temporarily unfit for military service on health grounds, according to the conclusion of the Military Medical Commission, for a period of up to six months (followed by another Military Medical Commission check-up);

* Persons with three or more children under 18 years of age in their care;

* Persons raising a child (or children) under 18 years of age on their own;

* people’s deputies of Ukraine;

* Members of the AFU, National Guard, State Bureau of Investigation, SSU, State Executive Service and other law enforcement agencies.

All of the above categories of persons have the right to cross the state border under martial law.

It should also be noted that the legislation in force also provides a list of persons liable for military service, although not subject to mobilization, who are still not entitled to leave the country during martial law. The following persons are included in such a list:

– students, postgraduate students, doctoral students, researchers, academics and educational staff;

– relatives of those killed or missing in action during the ATO.

However, according to the clarifications published on the website of the SBGS, an exception to the above rule is de facto made for applicants for vocational higher and higher education, trainee assistants, postgraduate and doctoral students studying abroad on a full-time or dual mode of study (students, trainees). Such persons are de facto allowed to cross the state border under martial law in order to undergo the said training.

A similar de facto exception is made for Ukrainian citizens with permanent residence rights abroad – such persons are also allowed to cross the state border during martial law, as long as they provide appropriate documentary evidence of their right to permanent residence in a foreign country.

3. Accompanying persons

This category may include military personnel who have the right to cross the border under martial law solely for the purpose of accompanying other persons in their training, care and supervision, among others, for the purpose of guardianship for:

– a child with a disability;

– a child suffering from a specific illness, the list of which is approved by the Cross Border Regulations;

– an orphan child, a child deprived of parental care

– an adult with a group 1 or 2 disability;

– an incapacitated person;

– another person who is in need of constant care due to his or her health condition.

The right to cross the state border for the purpose of escorting the aforementioned persons is granted to persons subject to military service who have such persons (parents, children, spouses, other family members, legal representatives, etc.) in their custody/upbringing/care.

The documentation requirements when crossing the border for these categories include proof of kinship or support or upbringing and medical documents confirming the appropriate status of the person in need of escort.

4. Military victims of Russian military aggression

This category includes persons from the components of the defense and security forces (AFU, etc.) travelling abroad for treatment as casualties (wounded, etc.) in connection with the military aggression of the Russian Federation.

The relevant medical certificate confirming the need to send such a person abroad for treatment as well as a letter from the Ministry of Health on the list of persons from the defense and security forces, agreed with the foreign country, who can be admitted by foreign health institutions for treatment abroad, must be submitted as supporting documents for the exit of this category.

Such persons may leave the country accompanied by one first-degree family member.

It should also be noted that under martial law, the requirements regarding the documents a person must have in order to cross the border have also been simplified, namely:

• as of today, representatives of the State Border Guard Service of Ukraine de facto allow Ukrainian citizens to pass even without an “international passport”, but only on the basis of the national passport of a citizen of Ukraine (although this is not legally allowed);

• under martial law, the notarized consent of the other parent is not required for a child under the age of 16 to travel abroad accompanied by one parent.