Marriage duration as condition for immigration permits in Ukraine: anti-fraud logic, wartime exceptions, and proportionality under article 8 ECHR

Abstract

This article presents a doctrinal and comparative analysis of Article 4(3)(1) of the Law of Ukraine "On Immigration" No. 2491-III of June 7, 2001, which conditions the right of the foreign spouse of a Ukrainian citizen to an immigration permit outside the quota upon a marriage exceeding two years. The legislative logic and anti-fraud rationale of this provision are examined, together with the eight circumstances under which the fact of being in a marriage is not recognised as a ground for granting a permit, codified in Article 4-1, introduced by Law No. 3180-IX of June 29, 2023, in force from October 20, 2023. The central scholarly finding is an internal legislative conflict within the two-year rule: Law No. 3897-IX of August 20, 2024 introduced an exception whereby a permit is granted to the spouse of a deceased Ukrainian citizen who was a servicemember of the Armed Forces, the Security Service, the National Guard, the State Border Guard Service, the Administration of State Guard, the State Service of Special Communications, the State Special Transport Service, specialised law enforcement agencies, or intelligence agencies of Ukraine, regardless of the duration of the marriage, provided the application is filed during martial law or within six months of its termination. Law No. 4502-IX of June 18, 2025 extended this exception to the spouses of deceased foreign nationals and stateless persons who served in the Armed Forces of Ukraine under contract or provided combat assistance to Ukrainian units in areas of active hostilities. A comparative analysis against Council Directive 2003/86/EC and the legislation of Germany, Poland, and France shows that Ukraine is the only jurisdiction examined that ties spousal permit eligibility to the duration of the marriage, whereas the Directive and those member states apply the duration of the sponsor's lawful residence as the basis for the waiting period. The article concludes that the existing regulation is inconsistent with the proportionality requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and proposes four legislative amendments to address the identified structural deficiencies.