On the issue of the application of administrative expulsion, deportation and readmission of foreign citizens

Paukova Yuliya Viktorovna ORCID: 0000-0001-6434-3983 PhD in Law Member of the National Association of Administratives, State Councillor of the Russian Federation of 2nd class 107078, Russia, g. Moscow, ul. Sadovaya-Spasskaya, 21/1 ypaukova@mail.ru Other publications by this author

The fight against illegal migration remains one of the priorities in the activities of the Russian state, especially against the background of an increasing number of illegal acts committed by foreign citizens and stateless persons (hereinafter – foreign citizens, foreigners, migrants, IG). In Russia, administrative expulsion from the borders of the Russian Federation (hereinafter referred to as administrative expulsion), deportation and transfer on the basis of international treaties of the Russian Federation on readmission of foreign citizens who are outside the border territory and have violated migration legislation are used to counter illegal migration.

The grounds for the appointment of administrative expulsion, deportation and readmission (hereinafter collectively referred to as "removal") are mainly fixed by the Code of Administrative Offences of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation) (Federal Law of the Russian Federation. 2002. No. 1. Article 1) and the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" (Federal Law of the Russian Federation. 2002. No. 30. Article 3032). Administrative expulsion and deportation of foreign citizens in Russia have been in effect for 20 years, readmission – for about 14 years. However, during their application, the considered types of removal were supplemented with new bases. As a result, administrative expulsion is used as punishment for the commission by foreign citizens of a number of administrative offenses that infringe on health, public morality, public order and public safety, as well as in the field of protection of the State Border of the Russian Federation and the migration sphere. Deportation can be applied if there is one of 6 grounds for appointment, and readmission – one of 5 (scheme 1).

Scheme 1. The grounds for making decisions on the removal of foreign citizens from the territory of Russia (with the exception of the border area).

Source: compiled by the author on the basis of the Administrative Code of the Russian Federation, the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation", the Federal Law "On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation" (SZ RF. 1996. No. 34. St. 4029), the Federal Law "On Refugees" (WG. 1997. June 3).

The grounds for issuing the administrative enforcement measures in question require improvement, as they partially duplicate each other. According to O.V. Karpov et al., the implementation of administrative expulsion and deportation "cannot be called effective, since in practice the jurisdictional authorities often incorrectly determine the basis and, as a result, apply a different measure of administrative coercion" ^{[1, p. 57]}.

The state authority authorized in the field of migration has developed a draft law "On the conditions of entry (exit) and stay (residence) in the Russian Federation of foreign citizens and stateless persons" (hereinafter referred to as the draft law) (See: URL:https://regulation.gov.ru/projects#npa=113698 (accessed: 02/20/2022). The bill provides, among other things, for reforming the types of removal of foreign citizens from Russia. It is proposed to introduce a generalizing concept of "expulsion" instead of "administrative expulsion" and "deportation". It is planned to preserve the judicial (in case of violation of the Administrative Code of the Russian Federation) and extrajudicial procedure for making decisions if the stay (residence) in Russia of a foreigner "is associated with a threat to constitutionally protected values." The protection of constitutionally protected values means: "the foundations of the constitutional system, morality, health, rights and legitimate interests of others, ensuring the defense of the country and the security of the state."

Bezrukov A.V. and Nevirko D.D. indicate that the draft law provides for the introduction of "expulsion from the Russian Federation" in the form of "administrative expulsion (as an administrative punishment for committing certain types of administrative offenses) or administrative and supervisory expulsion (in relation to persons serving criminal sentences in places of deprivation of liberty for committing a crime on the territory of the Russian Federation Of the Russian Federation, or in relation to a foreign citizen accepted by the Russian Federation from a foreign state within the framework of the implementation of the international treaty of the Russian Federation on readmission and who does not have legal grounds for stay (residence) in the Russian Federation)" ^{[2, p. 8]}. However, in the initial and revised versions of the draft law, published on the official website of the Federal Portal of Draft Regulatory Legal Acts, there are no such provisions and, therefore, there is no such basis for the application of expulsion, such as, for example, "serving a criminal sentence in places of deprivation of liberty for committing a crime on the territory of Russia." In this regard, it should be noted that there are no clear grounds in the draft federal law for applying the types of removal of migrants from the territory of the country out of court.

We believe that the grounds for making decisions on expulsion should be clearly spelled out in the draft law. Especially considering that in order to protect constitutionally protected values, the legislation contains a large list of acts prosecuted criminally and administratively. The draft law should contain clear grounds for the use of types of expulsion and exclude duplication of grounds. In addition, it is advisable to change the names only if the essence of the measures applied changes.

Let's consider the reasons for the use of the types of removal of migrants from the territory of the country, operating in Russia.

1. Administrative expulsion, which is one of the types of administrative penalties, is applied in accordance with the Administrative Code of the Russian Federation as punishment for foreigners committing certain administrative offenses.

In case of violation of the Russian migration legislation, administrative expulsion may be imposed for violation of 6 articles of the Administrative Code of the Russian Federation: Article 18.8 "Violation by a foreign citizen or a stateless person of the rules of entry into the Russian Federation or the regime of stay (residence) in the Russian Federation", Article 18.10 "Illegal employment by a foreign citizen or a stateless person in the Russian Federation", Article 18.11 "Violation of immigration rules", Article 18.17 "Non-compliance with restrictions on the implementation of certain types of activities established in accordance with the federal law in respect of foreign citizens, stateless persons and foreign organizations", Article 18.18 "Violation by a foreign citizen or a stateless person of mandatory rules related to the execution of their decision on administrative expulsion from the Russian Federation or deportation, or rules related to the implementation of the international treaty of the Russian Federation on readmission, non-implementation by a foreign citizen or a stateless person in respect of whom a decision was made to terminate the readmission procedure, voluntary departure from the Russian Federation within the prescribed period" and Article 19.27 "Submission of false information in the implementation of migration accounting".

Cases of administrative offenses committed in the field of migration legislation are initiated by the internal affairs bodies with their subsequent transfer to the court for consideration. In the case of bringing a migrant to administrative responsibility, the judge appoints an administrative fine with or without administrative expulsion. However, there is no "unified approach in the courts in the application of administrative expulsion of migrants from the Russian Federation who have committed offenses" ^{[3, p. 198]}. In this regard, when assigning punishment to migrants for committing administrative offenses in case of violation of migration legislation, advanced information technologies should be used. It is necessary to provide for making decisions on bringing foreigners to administrative responsibility by authorized officials of internal affairs bodies using an automated information system ^[4].

Some grounds for bringing to administrative responsibility (with the subsequent appointment of administrative expulsion) duplicate a number of grounds for making a decision on the undesirability of staying (residence) in the Russian Federation (hereinafter referred to as the decision on the undesirability of staying), in case of non–fulfillment of which the migrant is subject to deportation. For example, parts 1, 1.1, 3 and 3.1 of Article 18.8 of the Administrative Code of the Russian Federation provide for bringing to administrative responsibility in case of violation of the established rules of entry or in the absence of documents confirming the right to stay (residence) in Russia. For these acts, it is also provided for making decisions on the undesirability of staying.

However, administrative expulsion is a tort-forming form of removal of migrants from Russia and, accordingly, is implemented in the sphere of administrative jurisdiction, that is, in the form of punishment ^{[5, pp. 57-58]}. Bringing a migrant to administrative responsibility is more functional, at the same time reflecting the punitive nature of the state's impact on the violator. In this regard, it is advisable to preserve the grounds for bringing to administrative responsibility, excluding from the legislation similar conditions for making decisions on the undesirability of stay.

In the case of committing certain offenses in Moscow, St. Petersburg, Moscow and Leningrad regions, the Administrative Code of the Russian Federation provides for the non-alternative appointment of an administrative fine with administrative expulsion. We agree with D.N. Shurukhnova, who proposes to provide for the appointment of administrative expulsion "as an additional alternative measure of punishment, imposed or not when making a decision on the case, taking into account the identity of the person being brought to administrative responsibility and other circumstances of the case" ^{[6, p. 335]}.

Administrative expulsion is carried out in the form of controlled independent departure or forced controlled movement of migrants across the State Border of Russia. According to the Administrative Code of the Russian Federation, punishment in the form of controlled self-departure may be imposed on a foreigner in case of administrative expulsion at his expense or at the expense of a third party. "The choice of the form of administrative expulsion belongs to the judge considering the case, and depends on the circumstances of the case and the identity of the perpetrator, including the material and physical possibilities for independent departure from the territory of the Russian Federation" ^{[7, p. 49]}.

According to the Administrative Code of the Russian Federation, failure by a migrant to perform administrative expulsion in the form of controlled independent departure from Russia entails the imposition of an administrative fine of 3 to 5 thousand rubles with administrative expulsion. For example, Belarus and Kazakhstan have established criminal liability of a foreigner for non-compliance with a decision on expulsion. A similar rule can be found in the US legislation, which establishes liability for refusal to leave the territory of the state within 90 days from the date of the relevant decision by the migration authorities or the court ^{[8, pp. 483-484]}.

We believe that it is necessary to preserve the appointment of administrative expulsion as a sanction for committing an administrative offense. However, in cases where the sanctions of the article establish an administrative fine with no alternative to administrative expulsion, it is necessary to fix the possibility of not appointing administrative expulsion in the presence of mitigating circumstances. In addition, administrative expulsion must be carried out in the form of self-departure and forced displacement. However, the criterion for determining the method of execution of administrative expulsion should be different. Forced displacement should be imposed if a foreigner evades the independent execution of administrative expulsion and has not left within the prescribed period (with the simultaneous imposition of an administrative fine and the closure of entry for a longer period), or in the case of an administrative offense in certain areas, for example, in the field of legislation on narcotic drugs, psychotropic substances and their precursors.

2. The next type of removal from the territory of Russia is deportation. The application of deportation is carried out by law enforcement officers out of court. Russian legislation provides for 6 cases of deportation of migrants. This type of administrative coercion is aimed "at ensuring the security and protection of citizens and the state" ^{[9, p. 236]}.

The legislation provides for the deportation, firstly, of a foreign citizen who has not left the country within the prescribed period in the event of a reduction in his period of residence or stay in Russia or the cancellation of a document granting the right of residence.

Secondly, a foreign citizen who has not left Russia within the time limits established by law, who has lost the grounds for staying in the country according to Article 13 of the Federal Law "On Refugees", is subject to deportation.

Thirdly, the decision on deportation is made in respect of a foreigner who has not independently fulfilled the decision on the undesirability of stay.

In the three above-mentioned cases, a migrant, being on the territory of the country without legal grounds, actually falls under Article 18.8 of the Administrative Code of the Russian Federation, which provides for bringing to administrative responsibility with the imposition of an administrative fine with administrative expulsion.

Regarding decisions on the undesirability of staying, we note that a wide list of grounds for making such decisions is fixed (scheme 2). However, the institution of undesirability of staying in Russia needs to be radically changed. Thus, the grounds for making decisions in connection with the illegal presence of migrants on the territory of Russia duplicate the grounds for bringing them to administrative responsibility for violating Article 18.8 of the Administrative Code of the Russian Federation. Another reason - the existence of a decision on the non-authorization of entry - is redundant, since the latter also obliges to leave the country with subsequent non-authorization of entry. In addition, the Federal Law "On the Procedure for Leaving the Russian Federation and Entering the Russian Federation" lacks clear criteria for making decisions in the event of a real threat to the country's defense capability, security, public order and public health. The absence of clear formulations for making decisions on the undesirability of staying (residence) in Russia in the current legislation serves as a basis for the cancellation of such decisions, and the presence of duplicate grounds for making various decisions generates uncertainty and opacity of the procedures applied to foreign citizens.

Scheme 2. The grounds for making decisions about the undesirability of staying (living) in Russia.

Source: compiled by the author on the basis of the Federal Law "On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation", Decree of the Government of the Russian Federation No. 1390 of August 23, 2021 (SZ RF. 2021. No. 35. St. 6303), Decree of the Government of the Russian Federation of May 5, 2018 No. 551 (SZ RF. 2018. No. 20. St. 2845), Order of the Federal Penitentiary Service of Russia dated December 23, 2019 No. 1180 (Official Internet portal of legal Information http://www.pravo.gov.ru , 30.12.2019).

Fourth, the deportation of a migrant who is being released from prison, in respect of whom a decision has been made on the undesirability of staying, is being carried out. This category of foreigners (regardless of the severity of the crime committed) does not have the right to independently execute the decision and always leaves the territory of the State accompanied by authorized employees after serving a criminal sentence. At the same time, there is a proposal to establish the expulsion of migrants who have served a criminal sentence as a new type of criminal punishment ^{[10, pp. 76-77]}.

Fifth, the deportation of a foreign citizen who has not left the territory of the country in connection with the decision not to allow entry against him is carried out. However, some of the grounds for making the decision in question duplicate the grounds for making a decision on the undesirability of staying.

Sixth, a foreigner accepted by Russia from a foreign state on the basis of a readmission agreement may be deported if the person cannot be readmitted due to the absence of such an agreement with the State to which he can be transferred. Often, a foreign citizen who has not formally violated anything in Russia is deported with the subsequent closure of entry into the country.

Based on the above, such conditions for the application of deportation as the reduction of the period of temporary residence, the cancellation of a temporary residence permit and a residence permit, as well as the loss of grounds for stay (residence) in Russia in accordance with the Federal Law "On Refugees", should be excluded from regulatory legal acts. This is due to the fact that if a foreign citizen has not left the territory of Russia due to the lack of grounds for staying (residence) in the country, his stay is illegal, which actually coincides with the condition of bringing to administrative responsibility and, consequently, the application of administrative expulsion. We consider it expedient to bring such persons to administrative responsibility with the imposition of an administrative fine with or without administrative expulsion.

In two more cases, the decision on deportation is made in connection with an unfulfilled decision on the undesirability of stay. The conclusion about the need to reform the institution of undesirability of stay is based on the results of previous studies ^[11]. In this study, we note only that the use of another name: "the decision not to allow stay (residence) on the territory of Russia" will allow more succinctly convey the meaning of the procedure. The word "undesirability" does not reflect the obligation of a foreigner to leave the territory of the country established by such a decision, but assumes that he has a choice to stay (reside) in the country or not. We also propose to exclude the existing grounds for making decisions on the undesirability of staying, and to consolidate the making of decisions in two cases: the presence of an infectious disease dangerous to others in a foreigner, and the conviction of a migrant for committing an intentional crime. In addition, a foreigner in respect of whom the said decision was made, who did not leave within the prescribed period, for example, 15 days, should be subject to deportation. Immediate deportation must be carried out immediately after a foreign citizen has served his sentence and is released from prison without the possibility of independent execution of the decision not to allow stay, but only in the case of committing an intentional crime against life, health or public safety.

Such a basis for making a decision on deportation, as non-execution of a decision not to allow entry into Russia, should be excluded from the legislation. Based on the name, the decision not to allow entry should be made in respect of foreigners located outside of Russia. In relation to persons who are in Russia and violate the established rules, there is a set of administrative enforcement measures in Russian legislation.

Further, proposals will be made to improve the procedure for working with foreign citizens who have been accepted in the order of readmission, but who do not have legal grounds for staying in Russia, and therefore are subject to deportation.

Thus, it is necessary in the legislation to provide for the adoption of decisions on deportation only in respect of persons who have not fulfilled the decision on the undesirability of staying in Russia within the prescribed period, or in respect of whom the said decision was made, providing for deportation immediately after serving their sentence.

3. The international treaties of the Russian Federation on readmission provide for the reception by Russia of its own citizens and foreign citizens who are citizens of third countries from foreign states, as well as the transfer of migrants to a foreign state. The current legislation provides for the grounds for the transfer of foreign citizens in the order of readmission.

Firstly, the transfer is subject to the migrant, entry into the country or stay (residence) which are recognized as inconsistent with the legislation on the legal status of foreign citizens in Russia (therefore, there is a decision confirming the illegal stay of a foreign citizen in Russia, and this ground actually coincides with the following).

Secondly, a foreigner subject to administrative expulsion may be transferred by way of readmission.

Thirdly, a foreign citizen subject to deportation may be transferred on the basis of a readmission agreement.

Fourth, a migrant who has served a sentence of imprisonment, in respect of whom a decision has been made on the undesirability of staying, is subject to transfer.

Fifthly, a foreigner who has been accepted in the order of readmission, who has no grounds for legal stay in Russia, is transferred in the order of readmission. In this case, a migrant who has not violated anything in Russia is also subject to removal from Russia with subsequent closure of entry into the country.

According to the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation", a migrant, entry into Russia or stay (residence) is subject to readmission which is recognized in the country as not complying with the legislation, as well as subject to administrative expulsion or deportation. At the same time, in fact, the named grounds coincide, and the consolidation of the first of the above grounds is redundant.

The readmission is carried out by authorized officials of the internal affairs bodies on the basis of decisions taken by the management of these bodies. It should be noted that administrative expulsion in the form of forced and controlled displacement is carried out by employees of the Federal Bailiff Service, and the readmission procedure is implemented by employees of the Ministry of Internal Affairs of Russia. In this regard, the transfer on the basis of the readmission agreement of persons subject to administrative expulsion requires the issuance of an appropriate interdepartmental legal act.

As a rule, according to the provisions of international readmission agreements, two categories of third–country citizens can be transferred to Russia: foreigners who illegally crossed the border of the States parties to the agreement, and migrants who have documents for residence in Russia. Foreigners accepted on the basis of readmission agreements who do not have legal grounds for staying (residence) on the territory of Russia are transferred to another country in accordance with the readmission agreement or are subject to deportation (in the absence of a corresponding readmission agreement with the state of citizenship, permanent residence of such a person or with the country from whose territory the migrant is illegally arrived in Russia). Considering that migrants who have not formally violated anything in Russia are expelled from Russia with the subsequent closure of entry, this provision needs to be changed.

We propose to supplement the regulatory legal acts with provisions obliging a migrant who has been accepted in the order of readmission and has no legal grounds for staying or residing in Russia, in whose actions there is no corpus delicti or offense, to leave the territory of Russia within a certain period, for example 15 days. If a foreigner has not fulfilled such an obligation, he should be brought to administrative responsibility in accordance with the provisions of the Administrative Code of the Russian Federation with subsequent administrative expulsion.

The readmission procedure should not be used for all migrants subject to administrative expulsion or deportation and subject to the readmission agreement, but only for those who need to establish their identity and citizenship.

"Readmission makes it possible to speed up the process of returning a person with direct cooperation with another State participating in the agreement" ^{[12, p. 27]}. In this regard, it is also advisable to provide for the possibility of transferring by readmission those foreign citizens in respect of whom the removal procedure from the territory of Russia will be accelerated and simplified.

It follows from the above that readmission should be used only as a way of executing a decision on administrative expulsion or deportation if it is necessary to establish the identity and citizenship of migrants, as well as when transferring to the competent authorities of a foreign state.

The grounds for making decisions on removal from the territory of Russia, as well as the procedure for their appointment, should be changed (scheme 3).

Scheme 3. Proposals for improving the grounds for the removal of foreign citizens from the territory of the Russian Federation (with the exception of those identified in the border area).

Source: author's proposals.

Thus, taking into account the above, the current stage of development of Russian legislation and law enforcement practice obviously requires rethinking the grounds for the removal of foreign citizens from Russia. The changes proposed in the article will preserve the complementary nature of the measures considered, which are an effective mechanism for the state's influence on foreigners, increasing the transparency of the existing mechanisms of removal from the territory of the country.

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