The main problems of state management of forced migration in Russia: administrative and legal aspect

Petrovskaya Miroslava Ivanovna Senior Lecturer, Department of Legal Science, North-West Institute of Management of the Russian Presidential Academy of National Economy and Public Administration 199178, Russia, Saint Petersburg, line 15 of Vasilievsky Island, 32, sq. 69 maria-petrovskaya@mail.ru Other publications by this author

Forced migration is a significant area of public administration in modern Russia ^{[1, p. 132-133]}.

Even before the events in Ukraine in 2022-2023, there was a rather difficult situation associated with the reception of refugees from other states, including Syria, Afghanistan ^{[2, pp. 115-118]}, CIS member states ^{[3, pp. 17-20]}. The problems were caused both by the lack of high-quality legal regulation and by the fundamental uncertainty of the mechanism of separation of powers between public authorities involved in the state management of forced migration.

The scientific literature has repeatedly expressed doubts about the effectiveness of the mechanism for granting refugee status ^{[4; 5; 6]}. 

First of all, this is due to the small number of people who are potentially granted refugee status, which is reflected in the statistical data^[1], which show an annual decrease, starting from 2016 to the present, in the number of citizens who have received refugee status, as well as the complex administrative procedure for obtaining it.

So, in order to become a refugee and acquire the appropriate status, it is necessary, according to Article 3 of the Federal Law “On Refugees”^[2], to apply with an appropriate application, which contains a request for recognition as a refugee. The first stage at which a refusal can be received is the preliminary review stage. The stage is of a formal nature, but the consideration is fraught with the risk of a subjective attitude towards the forced migrant on the part of employees of authorized bodies or an insufficiently defined situation that caused the forced migration.

If the preliminary stage has been passed, then the application is considered on its merits at the second stage.

In certain cases, there may be a situation of different interpretation of certain circumstances and facts, when the formal and material parts of the petition are evaluated differently. However, if the formal stage has not been successfully passed, then consideration on the merits is not possible.

Thus, the refugee recognition procedure has two stages and refusal is possible at each of them, and consideration of the application takes a long time, which together creates significant difficulties in obtaining this status ^{[7, pp. 74-78]}.

Thus, at various stages and stages of verifying the validity of granting refugee status to a particular person, there are two possible refusals - at the stage of preliminary examination and at the stage of consideration of the application on the merits.

Cases are not excluded when persons applying for refugee status cannot provide objective evidence of the fact of persecution for political or other reasons, or threats, since such cases of persecution are carried out mainly informally and behind the scenes, unless this is a well-known course of state policy (as an example, the current situation in Afghanistan, refugees from which make up the main number of refugees in Russia, according to statistics)^[3].

Among the criteria on the basis of which a person is recognized as a refugee in Russia, the following can be distinguished:

1) lack of Russian citizenship;

2) having grounds for fear of persecution in a state where a person permanently resides and lives in normal conditions (that is, before the occurrence of persecution or the threat of persecution), on various grounds that relate to the expression of freedom of speech and freedom of opinion, including in the religious aspect (religion), social affiliation or upholding political beliefs, as well as objective signs that do not depend on the will of a person and characterize him by the fact of birth (race and nationality) or political and civil choice (citizenship);

3) a foreign citizen or a stateless person cannot use the protection mechanisms of the State where he permanently resides and lives in normal conditions (that is, before the occurrence of persecution or the threat of persecution) or does not intend to use such mechanisms due to reasonable fears of persecution by the state or individual state officials. In this regard, domestic remedies and institutions may not only be ineffective, but also be used as an instrument of such persecution.

Another option is also possible here – the person is stateless (has no citizenship) and is located on the territory of a state other than the state of his usual stay and residence, and, realizing the objective threat of persecution, does not want to return to this state.

Thus, the criteria for recognition as a refugee are rather vague, it is not always possible to prove the fact of persecution ^{[8, pp. 74-78]}, especially given the extraordinary circumstances of forced migration, when, for the sake of preserving life and health at the time of political persecution or its threat, often involving a threat to life or health to oneself or relatives, a person there is no time to collect the necessary objective data about the persecution.

Unlike labor migration, which is planned and conscious, forced migration is characterized by a forced nature, when a person, due to external circumstances caused by the threat of persecution for various subjective beliefs of the persecuted person objectionable to the state or the ruling elite, which by their political and legal nature are and should be the choice of a free person in a democratic state, leaves not voluntarily, but forcibly, because he wants to preserve freedom, life and health, as well as the right to have and defend his beliefs ^{[9, pp. 44-53]}.

The Ministry of Internal Affairs of Russia (hereinafter – the Ministry of Internal Affairs of Russia), obviously, also understands the existing problems and the need to solve them. On January 25, 2022, there was an objectively belated initiative from the Ministry of Internal Affairs of Russia regarding the development and adoption of the Federal Law “On Granting Asylum in the Territory of the Russian Federation”^[4]. On the Internet portal for discussing draft regulations, this project has been under consideration for a long time, and therefore it could not have a positive impact on state policy in the field of forced migration and change the quality of public administration in the face of an unprecedented increase in the number of forced migrants from Ukraine in 2022-2023^[5].

As already noted, the Ministry of Internal Affairs of Russia has developed a draft federal law "On granting asylum in the territory of the Russian Federation".

The draft law proposes a number of innovative legal structures, such as the institute of temporary protection to promptly resolve the issue of providing a minimum amount of social guarantees and rights to forced migrants in conditions of their emergency admission, as well as various other optimization schemes for granting refugee status and temporary asylum.

Considerable attention in matters of State policy is paid to the fight against illegal migration and crime among migrants. Russian President Vladimir Putin has repeatedly stated in his speeches about the need for high-quality and systematic counteraction to illegal migration, penetration through migration channels of persons pursuing terrorist and extremist goals^[6].

It should be noted that crime among migrants, excluding organized crime and crimes of terrorist and extremist orientation, is actually more a consequence of gaps in the state migration policy in terms of social adaptation and integration of forced migrants, rather than an independent phenomenon independent of the quality of public administration ^{[10, pp. 162-163]}.

Of course, the counteraction and active fight against organized crime in the field of migration should be carried out constantly. Persons who deliberately move to the territory of Russia through forced migration channels to carry out criminal activities are a separate object of state administration and the most important activity of the Ministry of Internal Affairs of the Russian Federation. In this context, it is not even necessary to talk about the effectiveness of adaptation and integration measures.

On the other hand, the majority of forced migrants are potentially respectable citizens, and the reasons that influenced their decision to migrate are objective in nature, and are essentially related to saving life and health, protecting their violated rights, in particular the right to freedom of opinion and freedom of speech, which for political reasons are not recognized in the state stay of a citizen.

In this sense, such a category of forced migration needs the use of special mechanisms of public administration related not to punitive instruments aimed at punishing persons guilty of committing crimes and offenses, but with instruments of social adaptation and integration aimed at preventing the commission of crimes and offenses. 

An involuntary migrant needs, first of all, paid work and social infrastructure, which will ensure a decent quality of life. If the quality of life of a forced migrant is low, then in order to increase this level, due to the lack of an alternative solution, he will be forced to improve the quality of life by committing crimes and offenses. The forced migrant will be forced to follow the easiest and, as it seems at first glance, "affordable and profitable way".

This path first leads to the marginalization, and then to criminalization of the forced migrant, which will inevitably lead to his persecution by employees of the Ministry of Internal Affairs of Russia and other law enforcement authorities. Therefore, in order to prevent the commission of offenses, it is necessary to implement a set of measures for social adaptation and integration ^{[11, p. 167-171]}.

If we analyze scientific opinions, we can conclude that the Ministry of Internal Affairs of Russia is not a state body capable of effective social adaptation and integration of forced migrants, since the scope of its powers and the specifics of its activities form a general punitive bias. The analysis of the regulations of the Ministry of Internal Affairs of Russia also demonstrates that the Ministry of Internal Affairs actually has no powers for social adaptation and integration^[7].

The Federal Agency for Nationalities Affairs (hereinafter referred to as FADN), authorized to carry out the functions of adaptation and integration ^[8], also does not cope with this array of activities, since the activities carried out are mainly aimed at cultural integration, but do not provide the necessary level of knowledge for living and self-realization in Russia. There is also no special law regulating the issues of social and economic integration and adaptation of forced migrants, as well as coordination of activities between the Ministry of Internal Affairs of the Russian Federation and the Federal Migration Service. This can be traced both in the practical activities of the FADN and in the regulations of the FADN, which does not contain these provisions^[9].

Thus, the above-mentioned problems create significant problems for the implementation of public administration in the field of forced migration, built on the principles of efficiency and consistency. The general vector of Russia's migration policy currently has a punitive bias, which means that the whole struggle is being waged with consequences, not with causes.

At the same time, there is no really constructive activity aimed at including forced migrants in the social and economic environment of Russia, strengthening economic growth in individual subjects through their efforts. As a result, forced migrants are a burden rather than an economic resource for the State.

Thus, the world experience of regulation of forced migration ^{[12; 13; 14; 15; 16; 17; 18]} and the experience of a number of European Union countries ^{[19, pp. 52-53]}, as well as the experience of Germany in particular, shows that forced migrants can be a driver of economic development in subjects in need of labor resources. At the same time, the creation of social and economic infrastructure is an important incentive to attract forced migrants not only by coercion, but voluntarily by increasing their economic motivation ^{[20, pp. 7-70]}.

First of all, for positive changes in public administration in the field of forced migration in Russia, it is advisable to adopt a basic federal law on social and economic adaptation and integration of forced migrants, create an independent structure for the implementation of this function and establish coordinated interaction between all state bodies involved in the implementation of state policy in this area.

The second direction of the reform in the sphere of state management of forced migration may be the simplification and optimization of administrative procedures, in particular, the procedure for obtaining refugee status and temporary asylum ^{[4, pp. 64-68]}, as well as the creation of a special legal status in cases of emergency mass arrival of forced migrants on the territory of Russia.

Also, an important aspect of improving the public administration system in the field of forced migration may be improving the function of long-term planning of activities, as well as working out scenarios and work schemes, including in terms of restructuring and mobilizing the public administration system of forced migration in difficult conditions (emergency mass influx of migrants). This will make it possible to identify existing shortcomings and make rational management decisions to eliminate them.

^[1] Migration statistics data. Federal State Statistics Service URL: https://rosstat.gov.ru/storage/mediabank/tab_migr4.htm (accessed: 04.10.2023)

^[2] Federal Law of 19.02.1993 N 4528-1 (ed. of 13.06.2023) "On refugees" // SPS "Consultant plus".

^[3] Migration statistics data. Federal State Statistics Service URL: https://rosstat.gov.ru/storage/mediabank/tab_migr4.htm (accessed: 04.10.2023)

^[4] The Ministry of Internal Affairs of Russia has developed a draft federal law "On granting asylum in the territory of the Russian Federation" URL: https://ìâä.ðô/mvd/structure1/Glavnie_upravlenija/guvm/news/item/28166807 /?ysclid=ln8l93psmh184203510 (accessed 04.10.2023).

^[5] Draft Federal Law "On Granting Asylum in the Territory of the Russian Federation"/ https://regulation.gov.ru/projects#npa=124403 (accessed: 04.10.2023).

^[6] Speech of the President of Russia at the Enlarged meeting of the Board of the Ministry of Internal Affairs of Russia on February 17, 2022 // President of Russia: official website. URL: http://kremlin.ru/events/president/news/67795 (accessed: 04.10.2023).

^[7] Decree of the President of the Russian Federation dated December 21, 2016 No. 699 as amended on 03/17/2023 "On approval of the Regulations on the Ministry of Internal Affairs of the Russian Federation and the Model Regulations on the Territorial Body of the Ministry of Internal Affairs of the Russian Federation for the subject of the Russian Federation" // SPS "Consultant plus".

^[8] Federal Agency for Nationalities of Russia / https://fadn.gov.ru / (accessed: 04.10.2023).

^[9] Order of the FADN of Russia dated 14.12.2015 N 98 (as amended on 27.12.2021) "On approval of the Regulations of the Federal Agency for Nationalities Affairs" // SPS "Consultant plus".