Conceptualization of the Сoncepts of “Migration” and “Migration Process” in Legal Science

Goncharov Vitalii Viktorovich PhD in Law Associate Professor, Dean of the Faculty of Higher Education, Polytechnic Institute (branch), Don State Technical University in Taganrog 347900, Russia, Rostov region, Taganrog, Petrovskaya str., 109a niipgergo2009@mail.ru Other publications by this author     Savchenko Andrei Andreevich PhD in Law lawyer 350044, Russia, Krasnodarskii krai, g. Krasnodar, ul. Kalinina, 13 savchenkoa@bk.ru

Savchenko Marina Stanislavovna Doctor of Law Professor, Head of the Department of State and International Law of Kuban State Agrarian University 350007, Russia, Krasnodarskii krai, g. Krasnodar, ul. Kalinina, 13 niipgergo2009@mail.ru Other publications by this author

Migration processes are a consequence of large-scale modernization and globalization of demographic, socio-economic, political, sociocultural processes - they integrally and systematically characterize the dynamics of social life in all its manifestations. Like any complex process, migration in the absence of targeted regulation proceeds spontaneously, which leads to aggravation of its negative consequences and inability to use the positive aspects of population migration in the interests of the state.

As the experts of the International Organization for Migration point out: «As the volume of international migration increases, its economic, social, cultural and political consequences increase simultaneously with its importance for policies in these areas in most countries of the world. As a result, it becomes necessary to react in a new way to this growth in order to ensure and maintain orderly movements of people within the framework of world society with its growing mobility» [World 2003, p. 52].

The need to regulate migration processes is emphasized by domestic authors. Yu. G. Efimov writes that migration, as a consequence of economic and social development, social and political instability, environmental degradation, on the one hand, can improve economic and social conditions, and on the other hand, increase inequality, cause a new round of social and political tension. The predominance of the first or second options may depend on different conditions, the first of which, undoubtedly, is the nature of migration itself, and the second is the activity of the government [Yefimov 2006, p. 18].

To improve the effectiveness of legal regulation, it is especially important to determine the definitions that apply in the field of migration relations. As K. Korsik rightly notes: «the definition of any definition is of great practical importance and performs not only informational, but also legal functions» [Corsic 1999, pp. 17-24].

The theoretical foundation for regulating migration by legal methods should be the data of legal science, and, first of all, the corresponding conceptual apparatus, which plays no less important role than regulatory requirements. In our opinion, the definitions «migration» and «migration process» are most important in this context. These concepts are determinative, since without them the logic of constructing legislative acts in the area under consideration is violated.

Various aspects of migration - the nature, structure, causes that shape migration flows and their consequences - are explored by many social, including legal, sciences. According to G. Vitkovskaya and S. Panarin, migration from the moment of its scientific identification as a special phenomenon has always been considered in some context - economic or social, historical or cultural, demographic or ethnic [Vitkovskaya & Panarin 2000, p. 6].

Currently, researchers are even talking about a special science - migrationology, which studies the migration movement of the population due to socio-economic relations [Denisenko et al. 1989, p. 38].

The basis of the theoretical concepts of population migration was laid in the 19th century by the English scientist E. Ravenstein, who formulated the laws of migration [Ravenstein 1885, pp. 167-227; Ravenstein 1889, pp. 241-305]. According to his theory, international population migration develops according to the same laws as the migration of a single country. Subsequently, these laws were modified, tested on a large empirical material, and were taken as the basis for the creation of migration models. At the same time, the famous migration researcher A. Zolberg argued that the study of external and internal migration requires completely different approaches [Zolberg 1989, p. 405]. The American scientist E. Lee, who developed the concept of migration factors, associated it with selectivity for various population groups [Lee 1969, pp. 282–297].

In Russia, the study of migration as an independent area of science is associated with an increase in the number of immigrants in the 80s of the XIX century from the post-reform village to Siberia, the Far East and other regions.

In the works of I.A. Gurvich [Gurvich 1888], A.A. Kaufman [Kaufman 1905], N.M. Yadrintsev [Yadrintsev 1886, p. 22-42] various aspects of relocation are analyzed from a historical point of view.

In the 1920s, the study of migration issues was continued in the USSR, but since the beginning of the 1930s, the concept of «population migration» for political reasons has practically disappeared from Soviet scientific literature for several decades. The resumption of migration studies has been going on since the late 1950s, but migration was considered only as the movement or resettlement of certain population groups within the country: from densely populated to newly developed areas [Great 1955, p. 455]. Such an understanding of migration defines only one of its types.

The first serious publications devoted to the problems of inter-district migration, population migration to large cities, pendulum migration, survival of the population and other modern problems of the migration process appeared in the early 70s of the last century. The mentioned types of migration quite justifiably associated with economic, social, demographic, ethnographic and other problems that were characteristic of our country.

In modern scientific literature, the term «population migration» is used in different meanings. The global nature of this phenomenon, its significance, as well as the study of migration by representatives of various sciences have led to the fact that up to now there is not only a generally accepted definition of migration, but even approaches to its study differ.

According to L.L. Rybakovsky, there are four main approaches: firstly, by migration is understood all types of population movements that have social significance; secondly, the spatial movement of the population, regardless of its nature and goals; thirdly, spatial movements occurring between settlements, which lead to a permanent or temporary change of place of residence, as well as regular movement between places of residence and places of work or study; and, finally, fourthly, the spatial movement of the population is attributed to migration, which, ultimately, leads to its territorial redistribution [Rybakovsky 1987, p. 21-22].

However, most researchers consider such a division as overly detailed and distinguish two approaches to the study of migration: from a wide and narrow point of view. In particular, V.I. Perevedentsev in the broad sense understands migration as a set of any movements of people in space, in a narrow sense — a set of migrations of people associated with the change of their place of residence for a relatively long period [Perevedentsev 1975, p. 9].

The most common definition of migration in the broad sense is L. L. Rybakovsky, who proposes to call migration «any territorial movement between different settlements, one or more administrative-territorial units, regardless of the duration, regularity and target orientation» [Rybakovsky 2003, p. 46].

In a narrow sense, the concept of migration, scientists are trying to concretize, taking into account the differences in territorial movements according to the following criteria: according to the status of those objects between which migrants move; by the dates for which they are moved; for goals that are pursuing.

For example, Moiseenko V. M. gives the following definition: «migration of population in the narrow sense of the word is «actually» migration, and it coincides with a permanent, «irrevocable» migration» [Moiseenko 1985a, p. 250]. So that the transfer process was recognized by the migration, it needs to be permanent or at least relatively long period of time. In this case, migration is limited by time frames. On the other hand, territorial restrictions also make sense, when migration is understood as the resettlement of people only between settlements, while «intra-settlement movements are not considered as migration of the population» [Moiseenko 1985b, p. 64]. They do not refer to migration movements, because only «inter-settlement movements change the picture of population placement in the country (region)...» [Denisenko et al. 1989, p. 5]. Not less important and constraints on the target. So, V. V. Polisensky notes the need to «resolutely exclude from the phenomena of migration of the so-called commuting to work, for cultural and household needs, etc...» [Poshishevsky 1973, p. 14].

Under the migration he understands «any movement associated with the change of residence (change of state, region or locality in which lives a person, family, or other broader community of people)» [Poshishevsky 1978, p. 27].

Often, migration is determined based on the motives of the migrating population. So, Yu. I. Vyunov considers migration as a set of migrations, which are the result of the desire of immigrants to improve their living conditions [Vyunov 2001, p. 18].

Speaking about the definition of migration, E.A. Nazarov proposed to call migration «any territorial movement of the population associated with the intersection of both external and internal borders of administrative-territorial entities in order to change their permanent place of residence or temporary stay in the territory for study or work, etc. no matter under what factors it occurs» [Nazarov 2000, p. 107].

Having considered various points of view on the definition of the term «population migration», it can be concluded that most researchers of migration consider its main distinguishing features: the crossing of the boundaries of territorial entities by the migrating population; the time period for which migration subjects are resettled; the presence of goals and reasons for relocation. The identification of several identification criteria in the definition of migration is necessary for the study of its various types, while the use of only single criteria will not make it possible to see the relationship between the various components of this phenomenon. Therefore, in our opinion, an understanding of migration in a narrow sense is more preferable.

However, for legislative requirements it is unacceptable to rely solely on a geographical or sociological understanding of migration. However, the legal approach to the study of the migration sphere is currently not complex, it is essentially devoid of clearly defined basic concepts and is focused on determining the legal status of different categories of migrants. Having a clearly applied focus on the development of legal norms governing the fundamental rights of various categories of migrants, the legislator limited himself to defining such concepts as: «refugee», «internally displaced person», «asylum seeker», «foreign worker», «foreign citizen, registered as an individual entrepreneur» and others.

Many scientists consider this insufficient. According to the authors, the statement of L.V. Andrichenko, L.N. Vasilyeva, who note that: «a definition of the concepts of «migration», «migrant» at the legislative level is necessary, since this, on the one hand, clearly defines the subject of regulation of migration legislation and the circle of subjects of migration relations, on the other hand, eliminates contradictions and problems in the application of both international and national legal acts and legal norms in which such concepts are used» [Andrichenko 2006, p. 6-18].

Legal acts do not explain these terms, perhaps considering them to be obvious, or, conversely, overly ambiguous. In the legislation of the Russian Federation, the definition of the term «migration» appeared for the first time in the Federal Migration Program for 1998-2000, in which migration was understood as moving for various reasons people across the borders of certain territorial entities in order to permanently or temporarily change their place of residence [About the 1997].

This definition is not perfect, since migrations are voluntary, forced and even forced. Consequently, migrants have different goals. And, as rightly noted A.V. Dmitriev, «all this is due to the variety of definitions of population migration» [Dmitriev 2006, p. 21].

It can be assumed that the search for the legal definition of migration in the state legislation is irrelevant, because from the point of view of legal regulation important object is international migration, as it relates to inter-state processes. Therefore, this concept should be defined, first of all, by international legal acts. However, it is not possible to find the corresponding definition. The concept of "migration" is not even mentioned in the UN Charter nor in the universal Declaration of human rights of 1948, despite the fact that the latter, as in the national constitutions of most States, as one of the basic human rights enshrined a «right to move freely and change the place of residence» [Universal 1995].

Exploring the concept of migration in the international legal sphere, A.V. Pokhlebova notes: «There is a tendency for international lawyers (G. Pambu-Chivundа, G. Goodwin-Gill, R. Appleyard, R. Perruchoud) to avoid a clear definition of the concept of migration, although each of them uses the term «migration» [Pokhlebaeva 2005, p. 23-27].

The situation in the sphere of international legal regulation of the CIS is similar. A typical example: a dictionary-reference book «Migration in the concepts and definitions of model legislation and international law» [Apt et al. 2007, p. 35]. The subtitle of this work reads: «Migration (conceptual composition) », however, in the document containing about 300 concepts, there is no definition of migration.

The International Organization for Migration also developed the concept of migration, which defined migration as «part of the process of development of states: those from which people leave, and those who are trying to get into, as well as states that belong to both categories, regardless of the reasons for the displacement» [Continued 1989, p. 12-14].

As follows from this definition, migration is considered in it in the most general sense, without specifying time or reasons. The specified definition fixes attention only on the fact of crossing the border, ignoring other important aspects.

In some cases, the legislator formulates the concept of migration as widely as possible. For example, the CIS Economic Court, considering the interpretation of the term «migrant», very close, actually arising from the definition of «migration», gave the following definition: «In accordance with the general meaning of the concept of «migrant», it means persons performing spatial movements, regardless from their duration and spatial boundaries» [Interpretation 2019].

The approaches to understanding migration are not mutually exclusive. According to the authors, they only emphasize different aspects of this complex and ambivalent phenomenon. However, the diversity of approaches and a large number of definitions from different points of view, complicates the understanding of the term «migration» in the legal aspect. However, the analysis of the above definitions allows to identify General trends in international and national legislation and on the basis of the essential features of migration to formulate the following definition: migration is a territorial relocation of people associated with a permanent or temporary change in their place of residence with the purpose of realization of personal or state interests, usually entailing a change of their legal status.

In accordance with this understanding of migration, it can be argued that a migrant is a person who crosses the boundaries of certain territorial entities with a change of residence permanently or for a more or less long term, in order to realize personal or state interests.

With the concept of migration is inextricably linked the concept of «migration». There is no doubt that migration process is a complex phenomenon, which is common to all social processes characteristics. In the scientific literature, a social process is defined as «the set of statistically steady acts of human interaction that expresses the tendency of a change of position or lifestyle of large groups of people, the conditions of reproduction and development of each person as a person» [Plotinsky 1998, p. 37].

At the same time, the social process is characterized by the continuity of interrelated stages, mass character, focus on achieving a certain result. The above features of the fully characteristic of the migration process. However, it is necessary to add that the migration process, on the one hand, is a process of interaction between people caused by social problems and directed to solve them, and the other is a series of events, forming in their totality an organic whole.

For the first time in domestic science, the migration process as a set of stages was considered by L.L. Rybakovsky, who created the theory that this process includes three interrelated stages: the formation of migration factors; the actual process of moving migrants; adaptation in a new place of residence [Rybakovsky 2000, p. 10-13]. According to this theory, the first or preparatory stage is the process of forming the territorial mobility of the population, the second stage is the actual process of population relocation, and, finally, the third stage acts as the survival of migrants in a new place. S.A. Prudnikova defines the migration process as «a complex of stages, providing for the selection of the area by various social groups, their resettlement and residence, given the economic, political and social conditions» [Prudnikova 2003, p. 14].

In numerous studies of the migration process, its concept is not defined as legal. To consider the migration process from a legal point of view, it is necessary to determine whether all its stages are subject to legal regulation. The formation of migration factors depends on certain conditions and circumstances that affect the territorial mobility of the population. At this stage, the defining circumstance is the mismatch of the individual needs of the individual and the possibilities of satisfying them, which leads to the orientation of their consciousness to the satisfaction of personal needs and interests through a radical change in life circumstances. It follows that this stage of the migration process cannot be regulated by the rule of law, as it depends on the internal experiences of each individual potential migrant. The very process of moving migrants and their adaptation to a new place of residence is subject to legal regulation. This regulation is carried out in order to protect the rights and legitimate interests of both migrants and representatives of the host community. The basis of such regulation is the generally recognized principles and norms of international law and national legislation. We consider the migration process, on the one hand, as a process of social interaction of people, and on the other hand, as a series of events that together form a single whole. Thus, the migration process has a two-pronged character: 1) in the social aspect, the migration process is a territorial movement of people, carried out at certain stages; 2) in the legal aspect, the migration process is a legally significant process of implementing regulatory requirements, the result of which is the acquisition by a migrant of a new legal status.

Based on the characteristics of the social process and taking into account the legal nature of the migration process, the following definition can be proposed: the migration process is a system of social interactions that occurs during the territorial movement of people, due to state regulation, and, as a rule, entailing the acquisition of a new legal status by migrants.

The existence of different approaches to the definition of migration is largely inhibits the development of a rigorous classification. The views of researchers on the types of migration vary considerably. To present a unified classification of migration has not been developed. In science there are different classifications based generally on the spatio-temporal components, in which the main criterion can be considered as a change of residence taking into account time deadlines. So, T. I. Zaslavskaya distinguishes inter-migration migration, external and internal [Zaslavskaya 1973, p. 16]. L. Rybakovsky exclude from the migration inside settlements move and allocates a cameo, swing, seasonal and irrevocable migration [Rybakovsky 2002, p. 6]. V. I. Vidyapin, M. V. Stepanov, Z. M. Polyakov distinguish internal and external migration, permanent and temporary [Vidyapin & Stepanova 2002, p. 60-61]. G. N. Boyarkin and A. E. Mrachkovsky propose to classify migration, adding types: voluntary and involuntary [Boyarkin 1999, p. 19] Voluntary migration includes displacement of people voluntarily leaving the state of his permanent residence and moving to a new residence in the territory of another state. Forced migration is the movement of people in search of asylum. Practical needs led to the allocation of scientists in recent years, new types of migrations as objects of study, for example, frontier (cross-border) migration [Frontier 2002, p. 40-41].

Describing the quantitative parameters of migration by type, it should be noted that in Russia it is predominantly voluntary, largely illegal (according to the Federal State Statistics Service, the number of illegal migrants by 2020 will be from 11 to 13 million people) [ Statistical 2019, p. 191] and irrevocable.

Summarizing the positions of various authors regarding the types of migration, we will try to identify the main classification criteria.

One of the main signs of migration is the crossing of the state or administrative border of the territory. On the basis of geographical movement, external (international) and internal (domestic) migration are distinguished. Regarding external migration, there are two main types - emigration (leaving the country) and immigration (entering the country). Internal migration - the movement of people within the territory of one state between administrative regions in order to permanently or temporarily change their place of residence.

According to structural features, migration is divided into age-sex, ethnic, family, educational types. In this case, migration flows that are united by some attribute (age, gender, nationality, specialty) can be considered as a type of migration. Moreover, the terms «family migration», «migration of the working-age population», «migration of highly qualified specialists», «women migration», «ethnic migration», etc. are acceptable.

At the time of stay of the migrant in a new place it is possible to allocate two main types of migration — permanent (irrevocable) and temporary (the return). Permanent migration can be considered a movement-related change of residence for a period of more than a year. It is necessary that two conditions be met. First, the population moves from some localities to others, and second, the movement is accompanied by change of permanent residence. The first condition excludes from the migration all the possible movements of population within settlements, and the second recurrent or short-term travel to other inhabited places. Permanent migration, in contrast to all other types, is the most important source of formation of the permanent composition of the population in populated areas.

The temporary type of migration is divided into short-term (up to 1 year) and long-term (more than 1 year). Short-term migration may include such types as pendulum, shuttle, rotational, seasonal migrations. Pendulum migrations are daily or weekly trips of the population from the place of residence to the place of work, which are located in various settlements. Seasonal migration is the movement of the working population to places of temporary work and residence. Seasonal migrations increase the living standards of the population and overcome the problem of labor shortages in a particular region.

According to the purposes of migration is divided into several main types, among which - labor, commercial, educational, migration for the purpose of reunification and family formation, migration in connection with leisure and tourism, religious migration (pilgrimage).

According to the degree of legality (from the point of view of compliance with applicable laws) has a legal (legitimate) and illegal (illegal) migration. Legal migration is the movement of citizens by their free will on a legal basis both within the territory of one state and with the crossing of state borders. Under the illegal immigration refers to illegal border crossing and violating the terms of legal stay or if the purpose of stay declared when entering the country. Illegal immigration — the entry into the country, stay in and departure from its territory of citizens, foreign citizens and persons without citizenship in violation of immigration laws regulating the entry, stay, transit and exit of foreign citizens and individuals without citizenship, and any change in their legal status during their stay on the territory of the receiving state [About the 1997].

Recently, the term «traffic» of migrants has also appeared, which has the following meanings in Russia: forced transportation of people or voluntary transportation of people for a fee, when they subsequently become dependent on the organizers of transportation.

By the nature of the influencing factors, migration is divided into three main types - voluntary, involuntary and forced.

Voluntary is associated with the voluntary adoption by an individual or social group of a decision on migration. Voluntary migration - the movement of people who voluntarily leave their place of residence and move to a new place of residence within one state or the territory of another state. Currently, the voluntary resettlement of compatriots living abroad to the Russian Federation is actively carried out as part of the state program [About measures 2006].

Involuntary migration (deportation) can be considered forced displacement of people. Forced migration is the movement of large numbers of people undertaken by the state in relation to their or other citizens by way of coercion [Polyan 2001, p. 328].

Forced migration - the territorial displacement of people who have left their place of residence as a result of violence or harassment committed against them or their family members or a real possibility of being subjected to violence and harassment, as well as extraordinary circumstances of an economic, natural, industrial or other nature.

According to the 1951 UN Convention on the Status of Refugees and the 1967 Protocol, as well as some regional agreements, several categories of forced migrants are distinguished:

Refugees - migrants who are granted refugee status before or after arriving in the country on the basis of the above documents and agreements; a refugee is a person who «for well-founded fear of becoming a victim of persecution on the grounds of race, religion, citizenship, membership of a certain social group or political opinion, is outside the country of his nationality and cannot use the protection of this country or does not want to use such protection due to such fears ... » [UN Convention 2019, p. 511-530; UN Protokol, p. 531-539].

Asylum seekers are migrants who apply for asylum outside their home country. The status of the applicant, according to international documents, is retained by him until their application is reviewed and an appropriate decision is made;

Foreigners who have received temporary protection status. Such migrants are allowed temporary (sometimes for an indefinite period) stay in the abiding state due to the fact that if they return to their country, their life could be in real danger; Persons accepted for other reasons of humanity. The definition includes foreigners who have not received full refugee status, but who nevertheless were allowed into the country for humane reasons, since they were in a situation similar to that of refugees.

In Russia, three large groups can be distinguished among forced migrants. The first group is internally displaced persons - citizens of the Russian Federation who have received the status of an internally displaced person on the basis of the law of the Russian Federation «On Forced Migrants». In accordance with the law, an internally displaced person is a citizen of the Russian Federation who has left his place of residence due to violence or other forms of harassment committed against him or his family members or because of a real danger of being persecuted on the basis of racial or national origin, religion, language, as well as on the basis of belonging to a particular social group or political beliefs that have led to hostile campaigns against a particular person or groups persons, mass violations of public order [On 2019, p. 61-77].

It should be noted that in international law there is no concept of «internally displaced person». This concept, according to G.S. Vitkovskaya is a normative definition of Russian legislation that has not received international recognition, including in the CIS countries [Vitkovskaya 1998, p. 249]

Introducing this concept, the Russian legislator obviously believed that in this way it would be possible to distinguish between migrants coming from the former Soviet republics, who could easily obtain Russian citizenship and become internally displaced from migrants coming from far abroad countries.

The second group is asylum seekers across Russia, which can also be divided into several subgroups:

1) refugees are persons who are not Russian citizens, recognized as refugees on the basis of the RF law «On Refugees»; Refugee – a person who is not a citizen of the Russian Federation and which owing well-founded fear of being persecuted for reasons of race, religion, citizenship, nationality, membership of a particular social group or political opinion is outside the country of his nationality and cannot enjoy the protection of this country or unwilling to use such protection owing to such fears; or, not having a nationality and being outside the country of their former usual residence as a result of such events, is unable or unwilling to return to it owing to such fears [On refugees 2019, p. 40-47].

2) persons who have received temporary asylum on the basis of the law of the Russian Federation «On Refugees»;

3) persons who have received political asylum in the Russian Federation;

4) persons who have applied for the acquisition of the status of one of the above categories.

The third group - persons forced to leave their previous place of residence due to extraordinary circumstances of a natural, technogenic, economic and other nature.

The identification of types of migration can help determine the ways of legal regulation of social relations in the field of migration. The determination of legal approaches depending on the types of migration will create an effective system for managing migration processes, more clearly establish the competence of the relevant government bodies and local governments in the field of migration.

Thus, the study of the concept of migration and the migration process gives reason to conclude that their content is ambiguous, which is the reason for the existence of a number of alternative definitions of these complex and multifaceted phenomena developed in the framework of sociological, demographic, political, and economic approaches. At the same time, it is now important not only to state the identified approaches to understanding this phenomenon, but also to attempt to create an effective theory of regulation of migration processes. Despite numerous attempts to formulate the concept of migration and the migration process, legal science has not yet developed a clear and uniform definition of these phenomena.

Having considered various points of view on the definition of the term «population migration», it can be concluded that most researchers of migration consider its main distinguishing features: the crossing of the boundaries of territorial entities by the migrating population; the time period for which migration subjects are resettled; the presence of goals and reasons for relocation. The identification of several identification criteria in the definition of migration is necessary for the study of its various types, while the use of only single criteria does not make it possible to see the relationship between the various components of this phenomenon.

Analyzing the essential features of migration, we propose the following definition of this concept: migration is the territorial movement of people associated with a permanent or temporary change of place of residence in order to realize personal or state interests and, as a rule, entails a change in their legal status.

The concept of the migration process needs to be specified on the basis of the general characteristics of the social process and taking into account the characteristics of population migration, presented as a process. According to the authors, under the migration process it is necessary to understand the system of social interactions that occurs during the territorial displacement of people, due to state regulation and, as a rule, entailing the acquisition by migrants of a new legal status.

The identification of types of migration can help determine the ways of legal regulation of social relations in the field of migration. The determination of legal approaches depending on the types of migration will create an effective system for managing migration processes, more clearly establish the competence of the relevant state authorities and local governments in the field of migration.

The definition of the concepts of «migration», «migration process» is currently relevant at the legislative level, since this, on the one hand, will clearly define the subject of regulation of migration legislation and the range of subjects of migration relations, on the other hand, eliminate the problems in the application of legal acts in which these concepts are used.