A Bangladeshi Citizen Was Denied a Visa Due to Unconfirmed Purpose of Visit: Why the Employer Lost the Lawsuit Against the Ministry of Foreign Affairs

The Kyiv District Administrative Court considered a case filed by a limited liability company (LLC) against the Ministry of Foreign Affairs of Ukraine challenging the decision of the Embassy of Ukraine in the Republic of India to refuse the issuance of a long-term visa category D04 to a citizen of the People's Republic of Bangladesh, whom the company planned to employ in Ukraine.

The plaintiff requested to recognize the visa refusal decision as unlawful and to cancel it, as well as to oblige the Ministry of Foreign Affairs through the Embassy of Ukraine in the Republic of India to reconsider the visa application.

Case Circumstances

The LLC stated that it acted as the employer of the citizen of the People's Republic of Bangladesh, for whose employment the necessary documents were prepared, including obtaining a permit for the employment of a foreigner, preparing an employment contract, issuing an insurance policy, as well as providing guarantee and sponsorship letters and a job invitation. The company also undertook financial responsibility for the foreigner's stay in Ukraine.

On December 20, 2024, the foreigner applied to the Embassy of Ukraine in the Republic of India for a long-term visa type D04 for employment purposes. After submitting the necessary documents, his application was registered in the visa information and telecommunication system.

During a personal interview, consular officers concluded that the applicant failed to confirm the purpose of the planned stay in Ukraine. In particular, he did not provide explanations regarding the employment contract, could not provide information about the employer company, his place of stay in Ukraine, or the duration of the intended stay.

Based on the interview results, the consular officer decided to refuse the issuance of a long-term visa under subparagraph 8 of paragraph 28 of the Rules for issuing visas for entry into Ukraine and transit through its territory, approved by the Cabinet of Ministers of Ukraine Resolution No. 118 dated March 1, 2017, specifically due to the lack of evidence confirming the purpose of the planned stay in Ukraine.

Disagreeing with this decision, the LLC filed a lawsuit, considering the refusal unfounded and contrary to the law. The plaintiff emphasized that all necessary documents were submitted in full and referred to a letter from the Security Service of Ukraine stating there was no decision prohibiting the applicant from entering Ukraine.

The Ministry of Foreign Affairs of Ukraine opposed the claim, stating that submitting a complete set of documents does not in itself create an obligation to issue a visa. The defendant insisted that the decisive factor was the interview results, during which the applicant failed to confirm the purpose of his trip to Ukraine.

Court's Position and Conclusions

The court noted that the right to apply to an administrative court presupposes the existence of a specific violation of rights, freedoms, or lawful interests of the person filing the claim.

The subject of the dispute in this case was the visa refusal decision made regarding the citizen of the People's Republic of Bangladesh. This person was the applicant in the visa procedure, submitted documents, attended the interview, and was a direct participant in the relevant administrative legal relations.

The court emphasized that an individual act of a public authority produces legal consequences for the person to whom it is addressed or whose legal status it directly concerns. In this case, the visa refusal decision concerned exclusively the foreign citizen, not the LLC.

According to the court, the permit for employing a foreigner, the employment contract, guarantee letter, sponsorship letter, and other documents submitted within the visa procedure do not grant the employer an independent subjective right to demand the issuance of a visa to the foreigner and do not create the right to challenge the decision made based on the consideration of an individual visa application of another person.

The court stressed that the employer's interest in the arrival of the employee to Ukraine is not equivalent to a violation of its rights. Only a directly violated right or legally protected interest is subject to protection in administrative proceedings, not the economic or organizational expectations of a person regarding the outcome of an administrative procedure in which they are not a participant.

Separately, in case No. 320/30515/25, the court noted that the right to apply for a visa, as well as the right to appeal a refusal decision, is a personal right of the applicant. A legal entity's appeal to the court demanding the cancellation of a decision made regarding another person would effectively substitute that person's will and interfere with their personal rights.

The court pointed out that even the existence of contractual relations between the employer and the foreigner does not grant the employer the authority to act on behalf of that person in matters concerning their right to enter Ukraine and obtain a visa.

Referring to the practice of the European Court of Human Rights, particularly decisions in the cases "Burden v. the United Kingdom," "Norris v. Ireland," and "Klass and Others v. Germany," the court emphasized that a person may challenge a decision only if they are directly affected by the measure. Abstract or indirect interest is not sufficient grounds for court appeal.

In conclusion, the court found that the LLC did not prove the existence of its own violated right or lawful interest that would require protection by canceling the visa refusal decision made against another person. The citizen of the People's Republic of Bangladesh, as the addressee of the individual act, is the proper person to challenge such a decision.

Due to the absence of proper procedural status to challenge the visa refusal decision, the court did not assess the parties' arguments regarding the sufficiency of submitted documents, interview results, the significance of the Security Service of Ukraine's letter, Bangladesh's status as a migration risk country, or compliance with the visa decision appeal procedure.

The Kyiv District Administrative Court concluded that the challenged decision is an individual act made regarding the citizen of the People's Republic of Bangladesh, not the LLC, and therefore there are no grounds to satisfy the claim.

The claim of the LLC against the Ministry of Foreign Affairs of Ukraine to recognize the visa refusal decision unlawful and to cancel it was fully denied.

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