Establishment of the administrative expulsion as an element of the State's migration policy

Shumskii Viktor Vasilyevich Senior lecturer of the Management and Administrative Activities Department, Putilin Belgorod Law Institute of Ministry of the Interior of Russia 308024, Russia, Belgorod region, Belgorod, Gorky str., 71 viktor.shumskiy.68@mail.ru Tkachenko Vladimir Vasilyevich PhD in Economics Associate professor of the Management and Administrative Activities Department, Putilin Belgorod Law Institute of Ministry of the Interior of Russia 71 Gorky Street, Belgorod, Belgorod region, 308024, Russia tkachenkovlad@yandex.ru Other publications by this author

Kolenichenko Vasilii Vasilyevich Senior lecturer of the Management and Administrative Activities Department, Putilin Belgorod Law Institute of Ministry of the Interior of Russia 308024, Russia, Belgorod region, Belgorod, Gorky str., 71 koleni4enko77@mail.ru

One of the effective means of regulating migration relations in the Russian Federation is the use of administrative coercion measures – forced expulsion from the Russian Federation, deportation or readmission with detention in a special institution. These measures are imposed on immigrants, including those who have committed violations of the requirements of legal norms, expressed in non-compliance with the established rules of entry into the Russian Federation, the rules of stay or residence on the territory of the Russian Federation, determining the procedure for registration and movement on the territory of Russia, the choice of place of residence, the procedure for leaving the Russian Federation after a certain period of stay.

The application of these administrative measures is conditioned by the need to prevent and suppress threats to the socio-economic stability and national security of the Russian state, to protect the rule of law and order in the country, to protect the rights and legitimate interests of Russian citizens.

The implementation of a security measure – detention in a special institution, in this context, is a key stage ensuring compliance with law and order on the territory of the Russian Federation, by maintaining a balance of interests of participants in administrative and legal relations.

At the end of the 19th century, administrative punishment in the form of administrative expulsion was applied in the Russian Empire, however, until 1917, instead of the term defining "expulsion" in modern Russia, the term "administrative expulsion" was used. An analysis of the scientific literature and legislation of the 19th century shows that there was no practice of keeping persons subject to administrative expulsion in institutions specially created for these purposes.

Administrative expulsion was not defined in the legislation as a measure of punishment and was a preventive measure. It was a measure of prevention and suppression for those alleged crimes that were not committed by certain persons, but which could be committed in the near future ^[9] This measure was applied on the basis of the "Regulation on Measures to Protect Public Order and Public Peace of 1881" (hereinafter – the Regulation on Protection), approved on August 14, 1881 G. By the Committee of Ministers, according to which the authorities of territorial entities declared specially protected were given the right to expel undesirable persons by transmitting to the Minister of Internal Affairs a reasoned idea of the need to expel a person.

The decision on administrative expulsion in the form of a resolution was taken by a Special meeting formed under the Minister of Internal Affairs. Such a meeting consisted of five people: a chairman appointed from among the Deputy Ministers and four members – two from the Ministry of Internal Affairs and two from the Ministry of Justice. The decision of the Special Meeting was approved by the Minister of Internal Affairs. The period of expulsion was usually three years. However, the note to Article 33 indicated that persons subject to administrative expulsion could be under preliminary arrest "... until the issue of their expulsion is resolved." This made it possible to keep these persons in prison for a long time.

The Regulation on protection supplemented the "Regulation on Police Supervision established by Order of the Administrative Authorities" adopted on March 12, 1882 (hereinafter referred to as the Regulation on Police Supervision), which defined the rights and duties of administrative exiles. Such persons did not lose their rights, but were under constant control of the police ^[11]. In accordance with Article 18 of the Regulation on Police Supervision, police officers could visit the apartments of persons under supervision at any time. The State did not guarantee the expellees any rights. The laws binding on them were the prescriptions of local and central authorities.

In the Russian Empire, any person was subject to administrative expulsion by decision of the authorized body without establishing his guilt. The legal status of such persons has not been determined, including the State has not guaranteed the exercise of any of their rights. Prior to the immediate expulsion, a person could be detained indefinitely together with persons who had committed criminally punishable acts. The content regime was the same for everyone. The authorized bodies monitored the execution of punishment throughout the entire period of administrative expulsion ^[3]. Based on this, it is possible to draw a parallel between the regime of detention of persons subject to administrative expulsion in the Russian Empire and persons subject to a forced form of administrative expulsion in modern Russia. In both cases, the regime of detention of administratively expelled persons is similar to the regime of detention of persons who have committed criminally punishable acts, which in our opinion is categorically unacceptable, but currently it will not work otherwise.

The above allows us to conclude that the peculiarity of the legal regulation of the relations in question in the Russian Empire was the presence of a single type of punishment we are investigating – the use of a forced form of administrative expulsion with temporary detention in prisons (if additional time was required to carry out the expulsion). At the same time, all categories of persons, including immigrants, were subject to expulsion, if there were assumptions about the possible commission of offenses by these persons in the future. These circumstances indicate the preferential application by authorized entities of administrative discretion in making power decisions, which is a condition of "law enforcement arbitrariness".

Considering the specifics of the legal regulation of the application of expulsion in Soviet Russia, it should be pointed out that on August 10, 1922, the Decree of the Central Executive Committee "On Administrative Expulsion" was adopted, according to which "in order to isolate persons for a period of more than two months involved in counterrevolutionary actions, if it is possible not to resort to arrest," expulsion abroad was established in administrative procedure, as well as expulsion to certain areas of the RSFSR. At the same time, escape from the place of expulsion or from the route to it was punishable by court according to Article 95 of the Criminal Code – imprisonment for a period of at least one year.

In 1939, the People's Commissar of Internal Affairs of the USSR issued Order No. 0143 dated June 1, 1939 "On administrative exile and expulsion". The instruction "On the procedure for the execution of decisions of the special meeting of the NKVD of the USSR and the implementation of public supervision of exiles and exiles" was attached to this order. According to this instruction, administrative expulsion was carried out, as a rule, in a single order. In case of evasion from voluntarily following to the place of residence, the person, with the approval of the prosecutor, was subject to arrest and followed to the place of residence by a stage, that is, in custody. Special certificates were handed over to stateless persons.

Thus, in Soviet and modern Russia, unlike the Russian Empire, administrative expulsion was carried out in two forms: independently and forcibly. Currently, the measure of enforcement of the decision on punishment in the form of forced expulsion from the country (in case of evasion from self-departure) is detention in a special institution. In Soviet Russia, this measure was arrest, with detention in permanent and temporarily established prisons. Temporary prisons were created, as a rule, in connection with the overcrowding of permanent ones due to the large number of persons subject to expulsion. This was one of the prerequisites for the formation of separate institutions for the detention of expelled persons.

Due to the collapse of the Soviet Union, the former republics of the USSR became independent states. Citizens of the former Soviet republics received the status of "immigrant". Due to the numerous facts of violations of the legislation of the Russian Federation by immigrants, special institutions have been established in Russia for immigrant offenders who are subject to expulsion (expulsion from the country and deportation).

The first special institutions were created in order to implement the court's decision on administrative expulsion. In relation to an immigrant who evaded independent departure from Russia to the territory of the State of which he is a citizen, a decision was made on forced expulsion. Due to the need for additional time to collect, process the necessary documentation for the expulsion, and purchase travel tickets, the immigrant was placed in a special institution.

In subsequent years, the subjects of the Russian Federation adopted laws on the procedure for the establishment of such institutions. Such subjects of Russia include the Primorsky Territory - the law of the Primorsky Territory of February 1, 2005 No. 291-K3 "On the procedure for creating special temporary detention facilities for foreign citizens and stateless persons subject to deportation or administrative expulsion", the Moscow Region – the law of the Moscow Region of December 12, 2008 No. 203/2008-OZ "On the procedure for the establishment of special institutions in the Moscow Region for the detention of foreign citizens and stateless persons subject to deportation or administrative expulsion from the Russian Federation by a court decision."  

It should be noted that initially special institutions were created in accordance with the procedure established at the level of legislation of the subjects of the Russian Federation, and not at the federal level.

Summing up the consideration of the historical aspects of the formation and development of the institution of administrative expulsion of immigrants outside the country with temporary detention in special institutions, the following conclusion can be drawn: The socio-economic and political changes that occurred during the time period under consideration had an impact on the development of democratization of society, manifested in respect and observance of human rights and freedoms in modern Russia, and led to the formation of legal norms governing the organization and activities of special institutions.

One of the main legal categories that form the foundation for building a system of legal regulation of public relations is lawmaking, during which public and state-significant tasks are solved. In the process of law-making, public and political interests are coordinated, taking into account ideology ^[6].

The activities of special institutions are carried out in accordance with the requirements of the Constitution of the Russian Federation, the Code of Administrative Offences of the Russian Federation, Federal Law No. 115-FZ dated July 25, 2002 "On the Legal Status of Foreign Citizens in the Russian Federation", and other regulatory legal acts of the Russian Federation.

Until a certain time, the Order of the Federal Migration Service of Russia dated September 26, 2014 No. 534 "On approval of Standard Requirements for the Design, Technical equipment and Equipment of special institutions of the Federal Migration Service and its territorial bodies intended for the detention of foreign citizens subject to administrative expulsion from the Russian Federation, deportation or readmission" was valid, despite the fact That by Decree of the President of the Russian Federation No. 156 of April 5, 2016, the FMS of Russia was abolished, and its functions and powers were transferred to the Ministry of Internal Affairs of Russia.

Based on the scientific provisions of S. P. Bulavin74, A.V. Mickevich75, A. A. Ivanov76, S. V. Kalashnikov77, who studied topical issues of state guarantee of the rights and freedoms of individuals, we believe that guarantees of the rights and freedoms of immigrants held in special institutions should be understood as a set of legal means regulated by the norms of law (determining their legal status) protection and protection of the rights and freedoms of subjects of public relations (one of the parties to which are the expelled persons), as well as administrative measures aimed at ensuring legality in the conditions of the legal regime of a special institution ^{[1, 8, 4, 5]}.

Currently, the legal status of the special institution, as a legal entity, is conditioned by the action of the order of the Ministry of Internal Affairs of Russia dated November 29, 2022 No. 911 "On approval of the Model Regulation on the Temporary Detention Center for Foreign Citizens of the territorial body of the Ministry of Internal Affairs of Russia at the regional and district levels."

The observance and protection of the rights, freedoms and legitimate interests of immigrants, in respect of whom a decision was made on temporary detention in a special institution, is the most important procedural guarantee, the limitation of which calls into question the legality of the entire proceedings on an administrative offense and may entail a violation of the State's international obligations to ensure human and civil rights ^[7].

The subjects of ensuring compliance with regime rules are officials of special institutions exercising public authority, including the use of administrative and legal methods and measures (persuasion: suggestion, stimulation; coercion: prevention, suppression, punishment, procedural support) of administrative and disciplinary action ^[10].

One of the fundamental legal acts in relation to the activities of a special institution is Federal Law No. 115-FZ dated July 25, 2002 "On the Legal Status of Foreign Citizens in the Russian Federation". This normative legal act has its own subject of legal regulation in the form of relations between immigrants and subjects of state administration that develop during the stay (residence) of immigrants in the Russian Federation and their implementation of any type of activity that determines their legal status. The subject of legal regulation, this normative legal act, also includes the activities of representatives of state authorities to create conditions and determine the procedure for keeping immigrants in special institutions.

The concept of the state migration policy of the Russian Federation for the period up to 2025 provides for further expansion of contacts with the systems of institutions of foreign states implementing administrative penalties, including in the field of migration, international non-governmental organizations, research, educational and scientific centers of the United Nations, the Council of Europe, the European Union, and the member States of the Commonwealth of Independent States and foreign countries ^[2].

According to statistics, in 2022, the Russian courts of first instance issued 85 thousand decisions on the administrative expulsion of foreign citizens. Every third decision on expulsion is made in Moscow.

Currently, activities to identify violations of migration legislation have become widespread. According to the analytical report on the results of the activities of the migration units of the territorial bodies of the Ministry of Internal Affairs of Russia for January-October 2023, against the background of a 5.6% (212 thousand) decrease in the number of inspections of compliance with migration legislation in the third quarter of 2023, the number of administrative protocols drawn up on the identified violations increased by 2.8% in 10 months of 2023 (643.4 thousand). About 70 thousand foreign citizens were removed from the Russian Federation, based on decisions of the internal affairs bodies, 138 thousand foreign citizens were not allowed to enter the Russian Federation (+18.6%).

The problems today in temporary detention Centers for foreign citizens (using the example of the Temporary Detention Center for Foreign Citizens in the Belgorod region) can be identified as follows:

- lack of certified personnel to accompany foreign citizens, according to the staffing table;

- the lack of special vehicles for the transportation of foreign citizens, as there are a lot of questions, including delivery to the hospital, courts and deportation, etc.;

- the security service of Temporary Detention Centers for foreign citizens is organized by police officers together with civilians, who are mostly pensioners and are unable, if necessary, to provide a decent response to resistance, etc.;

- the situation with the expulsion is unclear: who should execute the decision of the FSSP court or the Ministry of Internal Affairs, now in practice bailiffs are engaged in expulsion, and Interior Ministry employees are involved in deportation;

- periodically there are problems with the duration of detention of foreign citizens, stateless persons, associated with a long documentary confirmation of belonging to the citizenship (citizenship) of foreign countries.

In connection with the identified problems, for the successful operation of Temporary Detention Centers for foreign citizens, it is necessary to provide for the following:

- increase the number of staff;

- provide employees with special vehicles in the required volume to solve;

- to reduce or not involve civilians at all in the protection of temporary detention Centers for foreign citizens

- to differentiate the activities of the Ministry of Internal Affairs and the Federal Bailiff Service so that it is this service that actually deals with expulsion and deportation, that is, it accompanies foreign citizens from temporary Detention Centers for foreign citizens to places of official expulsion;

- to minimize the duration of detention of foreign citizens in the Centers, including by eliminating red tape and delaying documentary confirmation of citizenship (citizenship) of other states.

It should be emphasized that all these problems need to be addressed comprehensively. Based on the above, we believe that a special institution is, under the jurisdiction of the Ministry of Internal Affairs of Russia and having administrative legal personality, a specialized regime law enforcement agency established in order to comply with legal requirements in terms of: implementing the execution of administrative expulsion from the country, deportation or readmission; isolation from society of immigrants subject to forced expulsion from the Russian Federation, deportation or readmission.