The concept of prevention of illegal migration: theoretical and legal analysis

Arutyunyan Alina Dzhivanovna Postgraduate student; Department of Constitutional and Administrative Law ; Kuban State University Stavropol str., 149, Krasnodar Territory, 350040, Russia alina-arut@yandex.ru

Illegal migration has gained enormous momentum all over the world. According to statistics from the Ministry of Internal Affairs of the Russian Federation, the number of illegal migrants in the Russian Federation alone has increased by approximately 40% since the beginning of 2024^[1]. As can be seen from the analysis of legislation and law enforcement practice, migration policy is actively developing, as evidenced by significant changes in regulatory legal acts, as well as official reports of government agencies on work in the field under consideration. As has been rightly noted in the scientific literature, one of the priorities of state policy in the migration field is the effective counteraction to illegal migration, which poses a real threat to the security of both individuals and the entire state ^{[1, p. 255]}. The prevention of illegal migration is an interdisciplinary and applied issue, which is confirmed by administrative, criminal, labor or disciplinary regulations. Currently, it is possible to speculate on the existence of migration law as a sub-branch of administrative law ^{[2, p. 70]}, in which the prevention of illegal migration is highlighted as an institution ^{[3, p. 81]}. This is confirmed, among other things, by the judgment on the need to codify migration legislation by creating a migration code ^{[4; 5; 6]}. Without entering into a polemic on this issue, we note that migration and administrative law are certainly interrelated. Indeed, most of the rules governing migration and legal relations are within the management activities of government agencies and officials.

The issues of illegal migration are quite "large-scale", which is reflected in many works of modern scientists. In particular, the issues of administrative and legal regulation of countering illegal migration ^[7] and criminological prevention of this phenomenon are discussed at the monographic level. ^{[8; 9; 10; 11; 12]} and so on. At the same time, it is worth noting that most researchers focus exclusively on the criminal law and criminological aspects of preventing illegal migration. Among other things, due to the lack of a legal concept of the analyzed phenomenon, researchers have different approaches to understanding it, which determines the problem of its objective perception. The discussion of this problem is found in the scientific literature. For example, A.E. Mikhailov points out that the lack of a legal interpretation of such a term negatively affects the planning and implementation of comprehensive measures in the migration sphere ^{[13, p. 178]}.

One of the tasks of legal science, including any branch of law or applied discipline, is to develop an accurate concept of a legal phenomenon or phenomenon. As correctly noted in the research literature, in scientific cognition, concepts and definitions are one of the fundamental methodological foundations that ensure the objective reflection of objects and phenomena ^{[14, p. 133]}. Understanding the prevention of illegal migration is no exception.

Initially, it is worth noting that the category of "prevention" is more characteristic of criminological studies. In legal science, there is an unresolved dispute regarding the understanding of this term ^{[15, p. 55; 16, p. 160]} and its correlation with such concepts as "prevention", "suppression", "prevention". Some scientists propose a terminological unification of these concepts, and the term "warning" itself should be considered as a collective one. It is worth noting that the legislator himself approaches these terms differently. For example, in paragraph "a" of paragraph 4 of Article 1 of Federal Law No. 35-FZ dated 03/06/2006 "On Countering Terrorism" (hereinafter referred to as the Law on Countering Terrorism), the terms "prevention" and "prevention" are synonymous, and in Article 3 of Federal Law No. 114–FZ dated 07/25/2002 "On Countering Extremist Activity activities" (hereinafter referred to as the Law on Countering Extremism), these concepts differ from each other. In Federal Law No. 182-FZ dated 06/23/2016 "On the fundamentals of the crime Prevention System in the Russian Federation" (hereinafter referred to as the Law on the Crime Prevention System), the legislator completely abandoned the phenomenon of "prevention" and attributed it to the prevention area. In paragraph 6, paragraph 1, Article 6 of the same law, countering illegal migration is the focus of measures taken by certain subjects of legal relations.

Touching upon special norms in the field of migration law, it should be noted that in subordinate regulatory legal acts the analyzed phenomenon (in this case, the actions of authorized state authorities and officials) is designated as prevention^[2] and counteraction^[3]. In turn, the warning acts as a measure of prevention or counteraction.

To accurately define the sought-after concept, it is necessary to establish the semantic property of all listed terms.

In its primary meaning, a warning implies notification of something. Prevention, on the other hand, refers to a set of measures aimed at strengthening and maintaining the normal state of something or someone. Suppression is defined as the establishment of something. The term "prevention" comes from Latin and translates as warning or anticipation. Prevention acts as an action to take certain measures aimed at preventing other actions from being carried out. Counteraction also refers to an action that is an obstacle (resistance) to performing some other action.

Thus, from the semantic properties presented, it is possible to draw an unambiguous conclusion about the different meanings of the listed words. With this in mind, it seems that it is more correct to talk about the prevention of illegal migration, since such activities are carried out on an ongoing basis and at different stages of legal relations, including those that have not yet arisen and may arise in the future. Among other things, such activities are implemented at all levels of prevention (general social, special criminological and individual). At the same time, the terms considered are close in meaning to each other, which makes it possible to use them as synonyms in certain cases and situations. This is confirmed by the legal technique of presenting the text of normative legal acts, including in the migration sphere.

There are opinions in science about the need to consolidate the legal definition of migration ^{[17, p. 45]}. In our opinion, there is no need to single out this concept, since such a term is generally used and excludes any ambivalent meaning in its content. However, it is necessary to pay attention to the controversy about the concept of "migration". In particular, a number of scientists believe that migration is the movement of individuals or groups from one place to another, while others imply the movement of people (migrants) across the borders of certain territories with a change of residence forever or for a long time ^{[18, p. 195]}. It seems that there is no significant difference in the definitions presented for the application of migration legislation. Migration in general is always a process of human movement from one area to another ^{[19, p. 33]}.

Illegal migration implies such a movement, which contradicts the established legislation. Taking into account the above, it seems that illegal and illegal migration are synonymous with each other. However, within the framework of legal regulation, it is more correct to use the wording "illegal migration" or "violation of the migration legislation of the Russian Federation", which is confirmed by the approach of the representative authority. For example, Article 322.1 of the Criminal Code of the Russian Federation indicates responsibility for organizing illegal migration, Article 24 of Federal Law No. 109-FZ dated July 18, 2006 "On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation"^[4] indicates violation of the legislation of the Russian Federation on migration registration, etc. It is worth noting that there are judgments about the difference between illegal and illegal migration. For example, according to M.N. Akhmedov, the first term is common in relation to the second one ^{[9, p. 15]}. Other scientists, on the contrary, consider these terms to be lenient ^{[20, p. 17]}. It has been noted in the scientific literature that illegal migration implies the movement across the border and the presence of illegal migrants on the territory of the state ^{[21, p. 170]}.

Having considered the semantic meaning of the analyzed term, let's pay attention to the existing approaches to its interpretation.

Table 1 – some doctoral concepts of prevention of illegal migration

Analyzing the presented concepts, we note that there are other positions in science regarding the understanding of the prevention of illegal migration. In general, the analysis of definitions shows that most of the authors propose to disclose this term through a set of measures. V.F. Kozlov and A.S. Lukyanov propose to use the experience of the legislator set out in the Law on Countering Terrorism and the Law on Countering Extremism when developing the definition. In our opinion, it seems more appropriate to use the definition given in the Law on the Crime Prevention System as a basis.

Indeed, the prevention of illegal migration encompasses the application of a variety of measures that can be expressed in legislative, executive, judicial, administrative and other "mechanisms". Such measures may differ from each other both qualitatively and quantitatively.

Summarizing the fragmentary analysis of the theoretical and legal analysis of the concept of prevention of illegal migration, the following conclusions can be drawn.

1. An analysis of the scientific literature shows that there is currently no universal approach to understanding the prevention of illegal migration. Most of the research in this area is related to the coverage of criminological aspects of the prevention of migration offenses.

2. The problem of understanding the prevention of illegal migration is determined by a number of circumstances: a) the lack of a legal understanding of this term; b) the existence of a dispute over the allocation of the designated term as an institution of migration law; c) the different approach of the legislator, law enforcement officer, and the scientific community to the definition of terms related to prevention activities; d) the lack of systematic migration legislation.

3. The generalization of legislative approaches to the prevention of offenses and crimes, the search for semantic meaning, as well as the accumulation of some doctoral approaches to the definition of the term under study made it possible to develop its author's vision. Thus, the prevention of illegal migration is a set of social, legal, organizational, informational and other measures aimed at identifying and eliminating the causes and conditions conducive to illegal movement across the border of a particular State and the presence of migrants on the territory of such a State.

4. It should be noted that the subject matter of the prevention of illegal migration is extensive. It, as in other types of prevention (for example, the prevention of offenses in general or the prevention of neglect, etc.) can be differentiated into general and special subjects. The first group includes all subjects of public relations, the second group includes only those authorities and officials whose competence includes the implementation of migration legislation.

^[1] The Interior Minister named the number of illegal migrants in Russia. URL: https://www.rbc.ru/politics/30/10/2024/672234fc9a79479f03e4c419 (date of application: 04/02/2025).

^[2] Decree of the President of the Russian Federation dated December 21, 2016 No. 699 (as amended on January 16, 2025) "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" // Collection of Legislation of the Russian Federation, December 26, 2016, No. 52 (Part V), art. 7614; Resolution Government of the Russian Federation No. 813 dated 08/06/2015 (as amended on 10/21/2024) "On Approval of the Regulations on the State System of Migration and Registration Records, as well as the manufacture, Registration and control of the circulation of identity documents" // Collection of Legislation of the Russian Federation, 08/17/2015, No. 33, art. 4843.

^[3] Decree of the President of the Russian Federation dated 07/02/2021 No. 400 "On the National Security Strategy of the Russian Federation" // Collection of Legislation of the Russian Federation, 07/05/2021, No. 27 (Part II), art. 5351; Decree of the President of the Russian Federation dated 10/31/2018 No. 622 (as amended on 05/12/2023) "On the Concept of the State Migration Policy of the Russian Federation for 2019-2025 years" // Collection of legislation of the Russian Federation, 05.11.2018, No. 45, Article 6917; Decree of the Government of the Russian Federation dated 15.03.2005 No. 277-r "On the Concept of creating a state system for the manufacture, registration and control of new generation passport and visa documents" // Collection of Legislation of the Russian Federation, 21.03.2005, No. 12, Article 1068.

^[4] Federal Law No. 109-FZ of 07/18/2006 (as amended on 08/08/2024) "On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation" // Collection of Legislation of the Russian Federation, 07/24/2006, No. 30, art. 3285.