The refugee as an object of public administration in Russia: problems of administrative and legal regulation

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, g. Saint Petersburg, liniya 15-Ya vasil'evskogo ostrova, 32, kv. 69 maria-petrovskaya@mail.ru Other publications by this author

The current geopolitical situation has posed quite difficult challenges to the migration system of Russia. In 2023, the number of refugees in the Russian Federation amounted to an unprecedented number - 5 million people [*]. It should be noted that at present there are a number of unresolved problems related to the bureaucratization of administrative procedures, the inefficiency of the refugee institution, which creates obstacles to the realization of the rights of forced migrants ^{[1, pp. 69-72]}. It is no coincidence that the most popular legal status among forced migrants, according to statistics, remains the status of temporary asylum[†]. Attention is also drawn to the fragmentation of public administration in the field of forced migration in terms of the separation of various migration categories (for example, forced migration, labor migration, etc.). This creates additional difficulties in public administration ^{[2, pp. 44-53]}. These problems require a thorough resolution and bringing the current legislation in line with the current public-legal realities.

The purpose of this article is to develop proposals for optimizing and modernizing the legal regulation of the refugee institution in the Russian Federation.

The concept of the concept of "refugee" as an administrative and legal institution, which is a set of administrative and legal norms regulating public relations that develop regarding the granting of refugee status and its implementation, originates in international law, its basic norms and principles.

Describing the administrative and legal origins of the refugee institution, it is necessary to note the following international legal acts regulating homogeneous social relations related to the granting of refugee status and its implementation:

1) The 1951 Convention on the Status of Refugees, which regulates the fundamental issues of granting refugee status, establishes the basic criteria for recognition as a refugee that have passed international testing, and formulates the basic rights and guarantees provided to refugees around the world. The Convention was adopted by the UN General Assembly and became, in fact, a kind of minimum standard for the maintenance of refugee status in any democratic state ^{[3, pp. 52-53]}.

2) 2016 was the year of the adoption of the New York Declaration "On Refugees and Migrants", which, in fact, summarized all the accumulated international legal and domestic experience in regulating the processes of forced migration. This declaration formulated such areas of international activity as assistance to forced migrants affected by natural disasters and catastrophes. The said Declaration formulated quite understandable and commendable criteria for forced migration and granting refugee status, in particular, the terrorist threat and activities of terrorist groups in the migrant's State of residence, extremist activities and persecution based on race, gender, religion, political, social and other beliefs, and citizenship. These criteria by their legal nature are the realization of freedom of speech and freedom of expression. Manifestations such as xenophobia and discrimination on various grounds are condemned and recognized as sufficient grounds for migration.

A curious innovation of this declaration is the provision enshrined in paragraph 73, which establishes restrictions on the organization of refugee camps.

3) Separately, it makes sense to highlight the Global Treaty on Safe, Orderly and Legal Migration of 2018 (hereinafter referred to as the Treaty), to which Russia has officially joined.

It sets qualitatively new vectors for the development of refugee legislation and lays down the principles and humanitarian grounds for recognition as a refugee. Such vectors include man-made disasters and other disasters that pose a threat to life and health ^[4].

Also an important element of this Global Treaty are the humanitarian activities of the participating States, including measures aimed at the social and economic adaptation and integration of migrants, which is due to the democratization, humanization and globalization of universal values.

Among the significant aspects related to the status of migrants in this Agreement are the issues of ensuring equal conditions for the admission and employment of migrants, the exclusion of possible elements of discrimination and other abuses of the right by employers and government agencies.

An important aspect is the provision of legislative opportunities to legalize the status of migrants instead of their deportation, who are in the territory of the state illegally, but who want to legalize their status and live in accordance with the legislation of the state of arrival. The exception to this recommendation, of course, should be persons who have extremist and terrorist goals and use existing migration opportunities for criminal activity on the territory of other states ^{[5, pp. 74-78]}.

The Russian Federation has signed the above-mentioned Agreement with a condition or reservation, "if it does not contradict national interests"[‡].

This is probably due to the fact that the Russian Federation, recognizing a certain humanitarian value of the provisions of the Treaty and the need to respect and respect the rights and legitimate interests of migrants, sees quite a lot of legal uncertainties in the stated formulations. In addition, excessive humanization and liberalization of administrative procedures in the field of migration will inevitably affect national security, which in conditions of increased terrorist and extremist threat can lead to very negative consequences that will override all the positive aspects associated with the humanization and liberalization of migration legislation ^{[6, 167-171]}.

It is also quite clear that migrants who are state or social dependents can be quite a serious burden on the budget, which may eventually lead to a lack of funding in other areas ^{[7, pp. 64-68]}.

Thus, the issue of the execution of the Treaty and the interpretation of its provisions should not be divorced from the level of socio-economic development of Russia, social obligations, national security and national interests. Any use of legal migration channels for illegal activities on the territory of Russia should be strictly suppressed by law enforcement agencies.

At the same time, for example, such grounds as man-made disasters and other circumstances that make it impossible for a person to live with dignity on the territory of the State may well be considered sufficient for forced migration and recognition of a person as a refugee if the State of residence of the forced migrant itself is unable to provide security and a sufficient amount of rights and socio-economic guarantees.

These may be cases of global floods, hurricanes, volcanic eruptions and other natural disasters that destroy not only a person's place of residence (for example, a dwelling that can be restored or replaced without migration to another state), but also the entire socio-economic infrastructure of the state, or man-made disasters (for example, global accidents at nuclear power facilities), forming unsuitable living conditions. Such disasters can affect the territory of entire small States, and the consequences of destruction can be eliminated for years and decades.

It is advisable to consider these circumstances as possible additions to the existing Federal Law “On Refugees”, which will allow humanizing the current Russian migration legislation without prejudice to national interests and national security.

Considering the problems of administrative and legal regulation of the institution of refugees in modern Russia, it is also necessary to touch upon the issue of terminology.

In general, the term “refugee” regularly raises questions and difficulties in the Russian Federation, since its use is too vague and can characterize almost all categories of migrants.

Thus, any migrants (foreign citizens or stateless persons) who do not have refugee status and who arrived on the territory of the state spontaneously can be called refugees. Refugees may be called internally displaced persons who move within the territory of one State as a result of natural or man-made disasters that pose significant threats to the life, health and normal social and economic activity of citizens [§].

Even migrant workers who carry out migration movement in search of better working conditions and improving their personal quality of life can be called refugees.

Finally, migrants who have official refugee status in a given State can be called refugees. This category of refugees, according to the author, represents "real refugees" who have really confirmed that their situation meets the criteria for granting refugee status, have passed the appropriate procedure in the authorized bodies and received a document confirming their official refugee status on the territory of the state to which they migrated ^{[8, pp. 34-41]}.

According to the author, the category of forced migration can combine both migrants who have received refugee status, political or temporary asylum and who need measures for social and economic adaptation and integration, that is, migrants who have been checked for terrorism, extremism and other social destructive activities, and migrants who are only applying for of these statuses, but positioning themselves as persons who have grounds for recognition as a refugee or granting temporary asylum status.

The introduction into circulation of the terms "forced migration" and "forced migrant", which, although used everywhere, do not have legal definitions in regulatory legal acts, will allow differentiating, at least, the categories of labor migration and categories of forced migration, fundamentally different in their goals and features of legal regulation. It is advisable to call refugees persons to whom Russia has officially granted refugee status.

Separately, we can consider the administrative procedure for granting refugee status and its main problems.

The administrative procedure for granting refugee status has a two-stage structure, which is reflected in the Federal Law on Refugees [**]. Thus, there is a stage of preliminary consideration of the application for recognition as a refugee (Article 4 of the said federal law), which is carried out on formal grounds and, if the collected materials and documents are insufficient, the employees of the Ministry of Internal Affairs of Russia decide to refuse to consider the application (Article 5 of the said federal law). At this stage, the forced migrant has no opportunity to explain the documents provided and the situation that served as the basis for forced migration. Thus, even the first stage creates significant difficulties for the forced migrant.

If the first stage of consideration has been successfully completed, then the stage of face-to-face consideration or consideration of the petition on the merits follows, within the framework of which the circumstances and information of the forced displacement of a person to the territory of Russia are investigated. The term for consideration of the petition on the merits is 3 months and can also be extended for another 3 months (Article 7 of the said federal law).

According to statistics, refugee status is becoming less and less in demand among forced migrants every year, in contrast to the status of temporary asylum [††]. This is due, among other things, to a significant period of consideration of the application, which can be up to 6 months, during which the forced migrant is in the accommodation center and is actually limited in his rights and opportunities.

In addition, at each stage of consideration, there is a risk of being refused refugee status, which poses a threat to the legal stay of an involuntary migrant in Russia and opens up potential opportunities for deportation. The advantages and social rights that refugee status confers in comparison with the status of temporary asylum are insignificant.

Thus, paradoxically, the Federal Law on Refugees has not shown its effectiveness in terms of granting refugee status.  Thus, according to statistics, the most popular status for forced migrants is the status of temporary asylum (2018 – 125 thousand people), and refugee status is in fact exclusive and unclaimed (2018 – 592 people).

Curiously, the number of refugees has continued to decline since 2015. In 2015, refugee status was granted respectively to 790 forced migrants[‡‡] from various states, including persons permanently residing in the territories of Azerbaijan, Armenia, Afghanistan, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, the Republic of Moldova, Syria, Tajikistan, Uzbekistan, Ukraine ^{[9, p. 17-20]}.

In 2016, the number of these persons has already become 770, in 2017 – 598, in 2018 - 592, in 2019-572, in 2020-487, in 2021-455, in 2022-331 [§§].

The main contingent of refugees in these years are refugees from Afghanistan. For any of these years, the number of refugees from Afghanistan significantly exceeds, for example, the number of refugees from Ukraine, and even in 2016, which became the peak in the number of refugees and persons who received temporary asylum from the territory of Ukraine (273 refugees from Ukraine and 352 refugees from Afghanistan). It is quite problematic to explain this phenomenon – perhaps this is due to the fact that the situation in Afghanistan with political repression is much worse ^{[10, pp. 115-118]} than in Ukraine, or Ukrainian refugees (more precisely, forced migrants) prefer to use other statuses, for example, the status of temporary asylum due to greater accessibility and transparency of obtaining.

Let us note a general observation: even despite the social conflicts, unrest and armed clashes of an international nature that have occurred in these years, the number of refugees who have received refugee status as a whole is decreasing in Russia.

Remarkable statistics are obtained for persons who have received temporary asylum. In 2015 – 237780, in 2016 – 313707, in 2017 – 228392, in 2018 – 125442, in 2019-76825, in 2020 - 41946, in 2021 – 19817, in 2022 -10581.

At the same time, in 2022, the number of forced migrants from Ukraine to Russia, according to various estimates, amounted to about 2.9 million people [***], which is a record since the beginning of the conflict. 

Thus, the number of refugees and people who have received temporary asylum should grow, but we see a completely different trend.

The explanation for this could lie in the plane of granting a record number of the status of a citizen of the Russian Federation to refugees from Ukraine, however, according to the Ministry of Internal Affairs of Russia in 2021, the number of persons in respect of whom a decision was made to acquire citizenship of the Russian Federation amounted to 667,939 people, and in 2022 - 637,923.

The situation is not quite certain. Perhaps this is due to the granting of citizenship to residents of territories that became part of Russia, who were not included in these statistics, but this is only a research hypothesis [†††].

Based on the data available in open sources, it is unclear how the refugees were counted and in which category the residents of the territories that became part of Russia were included or not included.  This statistical ambiguity may indicate that statistical data are out of sync with various government agencies and structures.

1) Summing up, we note that in 2015 there were peak indicators for the number of persons who received refugee status, and in 2016, respectively, there were peak indicators for the number of persons who received temporary asylum status in Russia. After that, the number of refugees and persons who received temporary asylum decreased significantly, even despite the objective increase in the number of forced migrants.

In general, this demonstrates both certain problems of statistical accounting and the general legal unsettled issues of state management of forced migration. It is fundamentally unclear how the state management of forced migration in Russia is carried out in the conditions of emergency forced admission of migrants, which persons belong to which categories and what social support measures they receive. There are separate Government Resolutions on these issues, but their analysis does not clarify the situation[‡‡‡].

2) The statistics on granting refugee status and temporary asylum also look extremely contradictory, because in the conditions of growing migration flows there are no objective grounds for reducing the number of persons receiving temporary asylum and refugee status.

It turns out that either the statistics available in open sources are biased, or the Ministry of Internal Affairs uses other mechanisms to regulate migration flows in the conditions of one of the most massive refugee flows in the history of modern Russia.

The data of the Ministry of Internal Affairs of Russia, Rosstat and information from other state bodies in the media is contradictory and inconsistent.

The creation of a unified statistical system of forced migration based on the most objective data available to the Ministry of Internal Affairs of Russia will allow to resolve the existing statistical contradictions. In this regard, it is proposed to create a structural unit within the Ministry of Internal Affairs of Russia authorized to conduct statistical activities in the field of forced migration.

3) It is also advisable to note the absence of legislative regulation of the objectively necessary regime for managing the flows of forced migration in the conditions of mass emergency arrival of migrants on the territory of Russia.  In 2022, the Ministry of Internal Affairs attempted to amend the legislation and replace the objectively outdated Federal Law "On Refugees" with a more universal and elaborated law on asylum, but this attempt did not end with success. The said draft federal law is still in the stage of public examination on the relevant Internet portal[§§§].

4) Currently, it is advisable to conduct a systematic analysis of the positive and negative experience of public administration, including providing objective data on the volume of migration flows and government decisions taken within the framework of the management function. The said draft federal law, taking into account the available new data and experience of receiving forced migrants, is recommended to be supplemented with new administrative procedures, or to improve existing ones and send the revised document again for consideration. In the current realities, there are significant statistical gaps, including in terms of the effectiveness of public administration, as well as a lot of contradictory data in the media, which does not allow the author to objectively assess the current situation.

At the same time, there is an urgent need to adopt a qualitatively new regulatory legal act that establishes administrative procedures adapted to management, including in emergency mode. Such a status may be the status of temporary protection, which will allow unloading the existing administrative and legal model of forced migration, especially in conditions of mass migration, including the status of refugee, temporary asylum, political asylum.

5) The regulation of the institution of refugees in Russia, taking into account the above circumstances, seems very contradictory and inconsistent, and the analysis demonstrates both terminological problems and problems of public administration both in terms of statistics and in terms of planning activities.

The solution of these migration problems is an urgent need in the current tense geopolitical conditions, and the consequences of solving or ignoring existing problems will affect the quality of public administration not only in the short term, but also in the medium and long term.

[*] Russia has accepted five million refugees from Ukraine. Rossiyskaya Gazeta URL: https://rg.ru/2023/06/19/grazhdane-skitalcy.html (date of application: 17.10.2023).

[†] Migration statistics data. Rosstat. / https://rosstat.gov.ru/storage/mediabank/tab_migr4.htm (date of application: 17.10.2023).

[‡] Statement of the Russian Federation to the global treaty on Safe, Orderly and Legal migration URL: https://www.un.org/ru/conf/migration/assets/img/statement_russia_ru.pdf (date of application: 17.10.2023).

[§] In Russia, these issues are regulated by the Law of the Russian Federation "On Internally displaced Persons" of 19.02.1993 N 4530-1

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

[††] Migration statistics data. Rosstat. / https://rosstat.gov.ru/storage/mediabank/tab_migr4.htm (accessed: 12.07.2023).

[‡‡] The concept of forced migrant unites persons who have received the status of refugee, temporary asylum or political asylum. Author's note.

[§§] Migration statistics data. Rosstat. / https://rosstat.gov.ru/storage/mediabank/tab_migr4.htm (accessed: 12.07.2023).

[***] Analytical article "The largest number of Ukrainians have migrated to Russia since the beginning of the conflict" https://ria.ru/20221222/migranty-1840574266.html ?ysclid=ln8ifaarlh277640445 (accessed date: 17.10.2023)

[†††] Analytical article "The number of people who received Russian citizenship decreased in 2022 for the first time in three years" https://www.rbc.ru/society/31/01/2023/63d8ed0b9a7947715f002efa ?ysclid=ln8ipq8a4l249671787 (accessed date: 17.10.2023)

[‡‡‡] See for example: Decree of the Government of the Russian Federation of July 22, 2014 No. 690 as amended on 03/05/2022 "On granting temporary asylum to citizens of Ukraine, Donetsk People's Republic and Luhansk People's Republic on the Territory of the Russian Federation in a simplified manner" // SPS Consultant Plus

[§§§] Draft Federal Law "On Granting Asylum in the Territory of the Russian Federation"/ https://regulation.gov.ru/projects#npa=124403 (date of application: 17.10.2023).