A student has the right to a deferment even if studying abroad: the appellate court recognized the Cabinet of Ministers' restrictions as problematic

The Sixth Administrative Court of Appeal partially satisfied the appeal in case No. 320/42222/24 concerning the appeal against the Cabinet of Ministers Resolution No. 560 on the procedure for arranging deferment from mobilization. Although the court upheld the requirements regarding the certificate from the Unified State Electronic Database on Education (USEDE) and denied the cancellation of the resolution, it made an important procedural conclusion: a person is not obliged to first apply to the territorial recruitment center and receive a refusal in order to challenge a normative legal act.

Essence of the dispute

A master's program student of a Polish university challenged the provisions of Cabinet Resolution No. 560, which require submitting a certificate about the student generated in the Unified State Electronic Database on Education (USEDE) to arrange a deferment. In his opinion, such a requirement effectively deprives students of foreign higher education institutions of the opportunity to exercise the right to deferment, since foreign universities do not have access to USEDE.

"The plaintiff's arguments and grounds for the claim, as well as the circumstances examined by the court, actually concern the problem of the unregulated status of students of foreign higher education institutions, for whom the defendant did not provide a verification mechanism for foreign universities, which is not discrimination by definition and essence, but, in the opinion of the panel of judges, constitutes a legal gap. However, on the other hand, the resolution of this gap should be through amendments to the Resolution, which is within the competence of the Cabinet of Ministers of Ukraine, and not by canceling an existing and effective instrument for Ukrainian students. Completely canceling the contested provision, which regulates legal relations for students of higher education institutions in Ukraine, the court exceeds its authority, since instead of protecting the plaintiff's rights, it effectively violates the rights and legitimate expectations of other persons who use this mechanism," the court noted.

Case progress

The Kyiv District Administrative Court noted that the plaintiff: did not prove that he is subject to military service, did not apply to the Territorial Recruitment Center (TRC) with a request for deferment, and did not receive a refusal. According to the first instance court, without this, his rights had not yet been violated.

The appellate court disagreed specifically with these conclusions. The panel of judges emphasized that part two of Article 264 of the Code of Administrative Procedure of Ukraine allows challenging normative legal acts not only by persons to whom they have already been applied but also by those to whom they will be applied. Therefore, a person should not first receive a formal refusal from the TRC just to gain the right to appeal to the administrative court.

The court also noted that the plaintiff is not obliged to separately prove the fact of being registered for military service if he is a subject of legal relations to which the disputed resolution applies.

The plaintiff, initiating the dispute, believed that the contested provision prevents him from arranging a deferment because he must submit to the Commission a certificate from USEDE, which can only be generated by a Ukrainian educational institution, while a foreign educational institution does not have the technical capability to do so. Consequently, the plaintiff, who studies at a foreign higher education institution, effectively cannot obtain such a certificate and therefore cannot arrange a deferment. Thus, the panel of judges concluded that the plaintiff is not obliged to prove the fact of applying for a deferment and receiving a refusal.

Why the court still denied the claim

Despite changing the reasoning part of the decision, the appellate court agreed with the final conclusion to deny the claim. The court stated that the Cabinet of Ministers acted within its powers, the requirement for a certificate from USEDE is a valid mechanism to confirm the right to deferment, and its cancellation would affect the rights of other students studying at Ukrainian educational institutions.

The panel of judges concluded that the first instance court correctly resolved the dispute on the merits. At the same time, there are grounds to change the reasoning part of the decision, particularly regarding the justification for denying the claim. The appellate court excluded from the reasoning part conclusions about the absence of evidence in the case materials confirming the plaintiff's status as a person liable for military service or reservist, as well as the absence of evidence of applying for a deferment and receiving a refusal.

The panel of judges also noted that according to part two of Article 264 of the Code of Administrative Procedure of Ukraine, the right to challenge a normative legal act belongs not only to persons to whom it has already been applied but also to those who are subjects of legal relations to which this act is to be applied.

Although Cabinet Resolution No. 560 remains in force, the appellate court's decision has important practical significance. The court formulated a number of fundamental legal positions regarding the application of legislation on mobilization and deferment from conscription.

In particular, the right to deferment according to paragraph 1 of part 3 of Article 23 of the Law of Ukraine belongs to students who study full-time or dual forms and obtain a higher education level. This decision is one of the first judicial acts that explicitly outlines the issues of exercising the right to deferment for students of foreign higher education institutions under mobilization conditions.

The decision may serve as a guideline for further judicial practice formation and potentially influence legislative and subordinate regulation of the relevant issue or stimulate new lawsuits.

The court emphasized that the Cabinet of Ministers of Ukraine is not empowered to establish additional conditions that effectively narrow the scope of rights defined by law.

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