Legal insistute of residence registration: in search of an effective policy
The reputation of the legal institute of residence registration in Ukraine needs rehabilitating after its Soviet discrediting. Many Ukrainians deem propyska a pointless relic of the past, reminding them of the ruthless and arbitrary bureaucrats of the former regime. Despite this fact, there is little discussion anywhere of creating better policies.
Written by Nadiya Dobryanska, Graham Taylor
The reputation of the legal institute of residence registration in Ukraine needs rehabilitating after its Soviet discrediting. Many Ukrainians deem propyska a pointless relic of the past, reminding them of the ruthless and arbitrary bureaucrats of the former regime. Despite this fact, there is little discussion anywhere of creating better policies. It seems that experts, and citizens alike, have accepted the fact that there is no alternative to the current system of residence registration despite its obvious inconvenience. With this article we want to cast a new, more optimistic view on residence registration by analyzing the legal aspects of the policy on residence registration with the hope of starting a discussion on this important topic.
Purpose of residence registration
Firstly, we would like to emphasize on the purpose of residence registration. Only when the question on the purpose of residence registration is answered can the current policy on residence registration be evaluated and need for reform be identified, without getting rid of the system entirely.
Residence registration is important as it is one of the intersections between the efficiency of the modern state, securing fulfillment of citizens’ obligations towards the state and human rights of citizens – particularly the right to privacy and freedom of movement.
Many countries, like Ukraine, have, for efficiency reasons, tied certain public services (medical care, education, social care, etc.) to the citizen's place of residence. Valid information about the number of residents in a given area gives public authorities a better chance of distributing resources more fairly and efficiently. This need of a singular residence address has drawbacks for people that frequently move their homes. Without an appropriate inbuilt flexibility, this policy may lead to an unfair deprivation of public services for non-registered residence, disproportionately affecting those elements of society perhaps in most need of help (the homeless, for example). However, provided that the majority of population does not move homes frequently, this is a valid system from the standpoint of managing tax-financed services.
A good example of legislation that takes into account the ideas of securing societal functions is the Finnish legislation in this area. Article 5 in Finnish law on a Population Data System states: “The goal of the population data system is to make possible, implement and assure societal functions and information needs and to assure the possibility for members of society to assert their rights and to perform their duties…“ The Article asserts that legally required registration should primarily assure societal functions and to assert the rights of the individual. Registration of residence is also tightly connected to the individuals’ obligations to the state (to pay taxes, stand before the court, be conscripted, etc.)
Registration and human rights
The need of efficient resource allocation by the state needs to be tempered by considerations for human rights. This is, on one hand, a question of the right to privacy. It is potentially disproportionate to require a citizen to register her address, when services can be provided without a legally required registration. There is a considerable risk in states that lack sufficient respect for the rule of law and human rights guarantees that private information provided to the state might be misused. If the right to privacy is sufficiently respected by a state, then inappropriate use of private information of a person does not happen without a cause. There has to be a public need in order for persons to reveal their private matters.
The matter of privacy is particularly apparent when states have strict document requirements in order to fulfill legal registration. Does the state need to know what you pay in rent or the size of your mortgage? Can those documents become public under discretionary legislation or through corrupt administrators? As with other administrative services, there should be a fair balance between what kind of information and documents are sufficient to provide a service to a person and a need for the state to protect itself from misallocation of funds.
Registration of residence is also connected to the freedom of movement. The right to choose where you reside is a right that is generally accepted in all democratic states. If a residence address registry is necessary in order to simplify the relationship between citizen and state, then it must take into account this right of free movement. Use of disproportionate requirements for registration is a hinder to the possibility of true application of the right of movement.
Under the Soviet system, registration could be denied a citizen due to lack of employment in the area in which she requested to be registered. Members of unfavored ethnic groups would not be allowed to be registered in strategic cities due to their ethnic origin. In this way the government used the residence registration system to control the migration of peasants from kolkhozy to cities and kept strategic cities clear from unwanted 'elements'. Nowadays such restrictions are considered unfair and unacceptable in a democratic society. This comes back to respect for privacy. The state may not control the composition of a local community. One should not need to prove good standing in order for the state to accept that one lives where one wants.
This risk that the state attempts to control domestic migration through registration of residence address system by imposing burdensome requirements for registering a place of residence is real in countries that lack rule of law , countries like Ukraine. Applicants that do not fulfill such requirements will be denied registration and have their use of local public facilities limited. The state does not have power to force such people to move to their past place of residence, so it restricts their enjoyment of what the state offers to registered residence: possibility to attend local schools, local hospitals, to receive services from the local tax and social security authorities, for entrepreneurs – to receive services of the local state registrar, to vote at local elections, to apply for permits and certificates with the local public authorities In case of communication with local state and municipal authorities, including local voting, unregistered residents are completely deprived of the rights available to registered ones. As to attending local schools and receiving free health care at local hospitals, such public services are available, provided unregistered residents are ready to pay bribes for that.
We do not deny that it is acceptable in a democratic society that the state sometimes controls the internal movement of citizens. States prohibit citizens from living in areas that may pose threats for life or health of people. For example, it is acceptable in the area around the nuclear disasters in Fukushima in Japan or Chernobyl in Ukraine to secure health of residents. Also, it is possible to prohibit citizens from living in areas important for public security. For example, the United States prohibits convicted pedophiles from living close to schools. But such limitation is subject to a public interest control test. Every time a person is denied a right to live and be registered in an area, there should be a clear interest weighing between the rights of the individual and the rights of the greater public. This leads us to the point, what kind of a residence address registration policy is preferable with regard to balancing both public and private interests?
In an international perspective, the application of a legally required residence address registration is common. It is, on the other hand, not universal. A number of legal systems do not have such a requirement, many stemming from the Anglo-American legal tradition. Such states include the United States, the United Kingdom, Canada, Ireland and Australia.
In countries like these, citizens are required to notify only the individual public authorities about a change of address. They do not have a separate service registering addresses, which is independent of basic services like ID-issuing, tax registration, social security registration, etc. This is not to say that this system is perfect, nor ideal. Not surprisingly, many people who might be assisted in making better use of government services fall outside the vision of government authorities because the government does not know where they are. But the same can happen in countries that require registration. So there is a question whether the requirement to register means that there are fewer individuals that fall outside the system.
In states where the requirement to register exists, registration can be conducted based either on permission or on notification. A number of countries of Northern Europe, for example Swedenand Finland, do not require any proof of the right of residency. The individual must register when they move, but need only fill in the appropriate form. It is not an application, but rather a notification.
Unified system of residence registration
Some countries with a notification system have a convenient practice also to have a unified registration within the state administration. That means once you have notified the responsible office – public registration office (Finland) or tax authorities (Sweden, Norway), such authorities make such information available to all state bodies concerned. Compare this with the Ukrainian system, where the individual must contact every state body separately if they want the information to be up to date.
The second system of registering address of residence could be called a permission system. Such systems are found in a post-Soviet , like Ukraine, Poland, Czech Republic, Russia. In all of these countries the individual is required to prove a legal confirmation of a place of residence (ownership, family relationship with the owner, lease) in order to be allowed to be registered there.
There is an interesting case with Germany. Since 2002 it moved to the notification system, no longer requiring proof of the right to reside in the house. However, in 2014 it is returning to the permission system.
From the practical point of view, such a system not only serves the purpose of securing the goal of efficient resource allocation. It also performs the function of control over the legality of a citizen's residence. If the person is lawfully residing at a given address, she will be registered. If the person cannot prove a legal right to a given residence then she will not be registered. There is a tendency that in complicated registrations people simply move about as they are entitled to, but do not bother to make changes in the register. In practice this fosters corruption in registration of residence authorities and distorts the real picture about people’s residence within the country. This problem is exasperated in countries lacking sufficient rule of law, like Ukraine and Russia. There is no official data on how many people in Ukraine are not registered with their actual home. But according to the research of the NGO “Territory of success” in 2011, one third of residents of cities – regional centers are registered at other addresses, than their actual homes.
Residence registration and ownership
We should also mention the link between residence registration and ownership of the home. The permit system of residence registration usually connects the right to register a place of residence to right to reside in it. A person may be registered only if he or she owns it, has socially accepted relationship with the owner (family, kinship) or has a formal lease to live there. Effectively, registration of a place of residence confirms right to use of residential real estate. Depending on the legislation, there may or may not arise competition between the legal ownership of a home and right to use it based on registration of residence.
If legislation provides for priority of registered place of residence before the legal ownership of home, there is a risk that registered tenants will cause difficulty for the landlord in disposal of the residential premises. Ukraine has such a priority with regards to children – in order to unregister their place of residence, their custodians must obtain permission from the state custodian council. However, this is a socially-oriented rule that does not correspond with the needs of the real estate market. In practice landlords and mortgage banks unofficially demand that tenants not register children at privately owned apartments or homes in order to avoid attention of the state custodian councils. Even banks can put unofficial pressure on those applying for loans to not register children to make it easier for banks to repossess. Therefore, the efficiency of such a rule in securing rights of children is undermined.
After examining different aspects of the purpose of residence address registration, and testing this against other types of systems, we have concluded that the continuing existence of a residence address registration in Ukraine as such is compatible with requirements for state efficiency and securing fulfillment of citizens’ duties. However, there needs to be an improvement in correspondence with rights to privacy and freedom of movement. Introducing the notification system for registering a place of residence, when people will people will not be required to prove lawfulness of their living in a home, may empower a higher number of persons to register their place of residence. This will be a step to better efficiency of public funds and better servicing of citizens.