On some aspects of the transformation of the general provisions of the legislation of the Russian Federation in the field of Russian citizenship

Gorokhova Svetlana Sergeevna PhD in Law Associate Professor, Department of International and Public Law, Financial University under the Government of the Russian Federation 109456, Russia, Moskovskaya oblast', g. Moscow, 4-i veshnyakovskii proezd, 4, kab. 414 Swettalana@yandex.ru Other publications by this author

Khvatova Mariya Alekseevna ORCID: 0000-0002-2156-8805 PhD in Law Associate Professor, Department of Security in the Digital World, Bauman Moscow State Technical University 105005, Russia, Moscow, 2nd baumanskaya str., 5 p.1 Xvatovama@rambler.ru

Citizenship, as you know, is a stable legal relationship of a person with the state, a constitutional legal concept that defines the legal status of a person as a subject closely connected with a certain country, the most stable legal state of a person, establishing his basic legal status and place in the surrounding reality.

However, it is no secret that during life, a person can change his citizenship, and even not once. In some cases, it is possible to acquire another citizenship, in addition to the already existing one.

Sometimes, this happens en masse, for objective reasons, for example, when one state is replaced by another in a particular territory, its successor (or not). Or, the reasons for the change of citizenship may be purely subjective, in the event that a person decides to change his life, and, having severed previous legal ties, is looking for the opportunity to obtain a new citizenship. In addition, with varying degrees of frequency, depending on which state we are talking about, the norms on citizenship themselves are changing, responding to changes taking place in a particular country and the world as a whole.

The Russian Federation, as well as its citizens, respectively, experienced all these changes in the late twentieth and early twenty-first centuries, starting with the collapse of the Soviet Union, the subsequent need for options, and ending with the latest events related to the accession of new regions to the country. Not to mention such a phenomenon as migration (together with changing attitudes towards it), which is inherent in virtually all countries of the modern world.

Naturally, all this could not but affect, and of course it affected, the legislation on Russian citizenship.

So, during the recent time associated with the formation of (at least) fifteen new states on the territory of the former USSR, including the Russian Federation, the legislation on citizenship in our country has changed three times to the current moment. And, we are not talking about making amendments and additions to the current laws, of course, there were much more of them.^[1] We are talking about the adoption of new laws, successively replacing each other in the period from 1991 to 2023.^[2]

The first in this series was the Law "On Citizenship of the Russian Federation" adopted on November 28, 1991 (the Law of the Russian Federation dated 11/28/1991 No. 1948-1 "On Citizenship of the Russian Federation" // Vedomosti SND and the Armed Forces of the Russian Federation, 06.02.1992, No. 6, Article 243), that is, 32 years ago.

It was replaced, after less than 11 years, in May 2002, by the law of the same name on citizenship (Federal Law No. 62-FZ of 31.05.2002 (ed. of 28.12.2022) "On Citizenship of the Russian Federation" //Parliamentary Newspaper, No. 104, 05.06.2002), which has existed until now.^[3]

And now, after another 21 years, in 2023, the legislation on Russian citizenship was again completely updated with the adoption in April of a new law in this area (Federal Law No. 138-FZ of 28.04.2023 (ed. of 24.07.2023) "On Citizenship of the Russian Federation" //Parliamentary Newspaper, No. 17c, 05.05.2023).

The new federal law "On Citizenship of the Russian Federation" takes its legal force on October 26, 2023, and that is why we believe that now is the time to understand its new provisions, to understand what has changed.

Firstly, speaking of formal and structural changes, it should be noted that the law has changed somewhat in terms of volume and architectonics - it has become smaller, due to the removal of a number of chapters. So, if there were 10 of them in the previously valid law (after making all the changes and additions), now there are only 7 left. For objective reasons, it is impossible to consider and analyze all the provisions of the newly adopted law within the framework of one scientific article, therefore, in this study, we will focus our main attention on its most general provisions, reflected in Chapter I.

The first chapter of the Law, as before, is devoted to the general provisions on citizenship of the Russian Federation, and includes 9 articles.

Article 1, in fact, remained unchanged, only the editorial approach to the presentation of the subject of legal regulation of the Law was transformed, it became more abstract. Now there is no direct indication that the Law contains principles and rules governing relations related to citizenship, but an indication of the grounds, conditions and procedure for acquiring and terminating citizenship has been preserved.

We do not think that this can be regarded as a cardinal change, given that the article on the principles of citizenship, of course, remained, and all other articles, by and large, are the rules established by law in the regulated sphere.

Article 2 of the new version of the Law regulates in more detail the issues of legal regulation of relations in the field of citizenship of the Russian Federation. Firstly, by directly listing the types of regulatory legal acts of the subordinate level (regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation and federal executive authorities). Secondly, by changing the interpretation of the mechanism of operation of international treaties. From the former "regulate", a transition has been made to "can regulate". In addition, Part 4 of the analyzed article partially duplicates the text of Article 79 of the Constitution of the Russian Federation, which states that decisions of interstate bodies adopted on the basis of the provisions of international treaties of Russia in their interpretation, contrary to the Constitution of the Russian Federation, are not subject to execution. In addition, it is noted that such a contradiction can be established in the manner determined by the federal constitutional law. Obviously, the Federal Law "On the Constitutional Court of the Russian Federation".

In this case, everything is quite logical and reasonable, from the standpoint of ensuring compliance with the constitutional provisions of the current legislation.

Further, according to the text of the Law, there follows a norm (Article 3) defining the effect of acts of legislation in the field of citizenship of the Russian Federation in time.

The meaning of this norm is that it fixes, in addition to the general procedure for the commencement of acts of legislation in the field of citizenship in time (from the date of their entry into force), also a separate provision according to which a person has citizenship of the Russian Federation before the date of entry into force of this Federal Law or the fact that a person has the status of citizenship of the USSR is determined on the basis of legislative acts of Russia, the RSFSR or the USSR, international treaties (the RSFSR and the USSR, inclusive) in force on the day of the occurrence of circumstances associated with the presence of a person of the corresponding citizenship.

In principle, the latter provision is not new, since earlier, in the Law "On Citizenship of the Russian Federation" of 2002, it already took place, but it was located in the article establishing the principles of citizenship and the rules governing issues of citizenship of the Russian Federation (Article 4, Part 7).^[4] That is, the change is purely technical in nature.

A more serious transformation affected the article fixing the basic concepts of the act. In the new Law, this is article 4.

Thus, the thesaurus opens the term "citizen of the USSR", which means "a person who had USSR citizenship". Previously, the Law did not give such a definition.

Here, I would like to note that the term, unlike the definition, is given in the present tense, and with a literal interpretation, it seems that the Law proposes to consider everyone who previously had USSR citizenship as acting citizens of the Union, which looks somewhat ambiguous.

Of course, it can be jokingly noted that "there are no former citizens," but, from the point of view of both national and international law, this is still far from the case. Therefore, we believe that this concept requires additional clarification or improvement of the editorial staff.

Also noteworthy is the appearance of such a term as "multiple citizenship", which, at first glance, is opposed to the term "dual citizenship", since in the second case, we are talking about the presence of a citizen, in addition to the citizenship of Russia, the citizenship of another state, with the condition that an appropriate international agreement has been concluded with this state the contract. In the first case, it is assumed that there is no such agreement between the States. But, the meaning of this division, in the subsequent analysis of the norms of the law, escapes understanding, since further, in the text, no significant differences in the legal status of persons with dual and multiple citizenship can be found. In both cases, a person is considered only as a citizen of the Russian Federation, regardless of his place of residence, with the exception of cases provided for by federal law or an international treaty of the Russian Federation. At the same time, the presence of citizenship of both types cannot be the basis for expulsion from the Russian Federation or extradition abroad, including to the state whose citizenship (citizenship) a citizen of the Russian Federation has. And, finally, a citizen of the Russian Federation who has been sentenced to imprisonment and has dual or multiple citizenship, with his voluntary consent, can be transferred to serve his sentence in a foreign state whose citizenship (citizenship) he has, if this is provided for by an international treaty of the Russian Federation.

At the same time, it is stipulated that the federal law may provide for restrictions on a citizen of the Russian Federation who has dual citizenship or multiple citizenship. In this regard, we note that modern legislation (in addition to the Constitution of the Russian Federation, which mentions dual citizenship) prefers to operate with the category "citizen of the Russian Federation having citizenship (citizenship) of a foreign state",^[5] absorbing, in our opinion, both dual and multiple citizenship. Therefore, only time will probably be able to show whether the discrepancy in legal statuses will be regulated in the legislation in the future. Well, in the meantime, linking dual citizenship to an agreement concluded between states, and multiple citizenship to the absence of such, looks like it has no continuation in legal regulation. Although, from the point of view of theory, such a division is considered justified. At least, more than one scientific article has been devoted to this issue recently.^[6][7][8][9] However, in fairness, it should also be noted that all the authors who touch on this issue agree that in all countries where obtaining dual citizenship is not prohibited, the difference in legal consequences between it and multiple citizenship is small.

Recall that the Law "On Citizenship of the Russian Federation" of 2002, which is ending its effect, did not mention in the definition of dual citizenship the existence of an international treaty concluded at all. Confining ourselves to a simple statement of the fact that dual citizenship means that a citizen of the Russian Federation has citizenship (citizenship) of a foreign state.

As part of the transformation of the conceptual apparatus, attention is also drawn to the exclusion from the list of basic concepts of the Law of the terms "general procedure for acquiring or terminating citizenship", "simplified procedure for acquiring or terminating citizenship", which were previously present in the legislation, and became the subject of multiple studies.^{[10][11][12][13]} And, as it turns out later in the text of the Law, this is not accidental, since the new Law on Citizenship of the Russian Federation, adopted in 2023, unlike the previous one, simply does not operate with these categories. Nevertheless, a simpler procedure for admission to Russian citizenship (without complying with the requirement of permanent residence in Russia for five years) is still possible now, if the circumstances listed in Article 16. A, namely:

the applicant for citizenship has signed a military contract for a period of at least one year;

or, a foreigner or stateless person permanently resides in Russia for at least one year, is recognized as a refugee or has received political asylum in the country.

Even more lenient requirements (the obligation to comply with the Constitution of the Russian Federation and take the Oath of a citizen of the Russian Federation) are established for capable foreigners and stateless persons permanently residing in Russia for some time (without specifying deadlines), if they:

were born or permanently resided on the territory of the RSFSR and were citizens of the USSR;

have relatives in a direct ascending line who were born or permanently resided on the territory of the RSFSR or the territory belonging to the Russian Empire or the USSR;

have at least one parent (adoptive parent), a son or daughter who is a Russian citizen permanently residing in Russia;

they are married to a Russian citizen living in the Russian Federation and have a common child, including an adopted one;

received higher education with honors full-time in Russia;

have received a different Russian education, and carry out work in the country in the relevant specialties in aggregate for at least one year before the date of application for citizenship;

or, they are stateless persons, and previously were citizens of the USSR.

In addition, the requirements for proficiency in the Russian language, knowledge of the history and fundamentals of the legislation of Russia are not imposed on the elderly (70+), as well as on the disabled of group I.

As you can see, there is a simplified procedure for admission to citizenship, but it is now simply not advertised in the basic concepts of the Law.

Article 4 of the new Law on Citizenship of the Russian Federation, devoted to the principles of citizenship, now, unlike the previous version of the Law, where it was entitled "Principles of Citizenship of the Russian Federation and rules governing citizenship of the Russian Federation", is named differently, and sounds like "Basic Principles of Citizenship of the Russian Federation". Probably, the new version of the title should assume that in addition to the basic principles, there are some other non-basic principles of citizenship, but the new Law does not mention them in the future.^[14] The principles that are called basic have changed little in comparison with the previously existing Law, and still include:

unity and equality of citizenship regardless of the grounds for its acquisition;

impossibility of deprivation of citizenship, as well as the right to change it;

independence of citizenship from the place of residence of a citizen;

the impossibility of expelling a citizen and extraditing him abroad;

the impossibility of restricting the rights of persons on the grounds of social, racial, national, linguistic or religious affiliation;

as well as encouraging the reduction of statelessness.

In general, the principles of Russian citizenship have remained exactly the same as before, only the order of their presentation in the article of the Law has changed.

The following article (6) of the General Provisions of the Federal Law "On Citizenship of the Russian Federation" is devoted to the issues of providing protection and patronage to Russian citizens located outside the country. Parts 1 and 2 of the said norm are identical in content and wording to a similar norm of a previously valid law,^[15] and establish that protection and patronage are provided to citizens of the Russian Federation located outside the country, and the relevant bodies and institutions are obliged to help ensure that Russians located abroad are provided with the opportunity to use in full with all their rights.^[16]

However, Part 3 has disappeared from the article under study, which, in a norm similar in content to the previously valid Law of 2002, established that, unless otherwise provided for by an international treaty, the protection of the rights and legitimate interests of children born in Russia by a surrogate mother outside the territory of the state is carried out within the limits permitted by international law, by consular institutions The Russian Federation, in which these children are registered until they reach the age of majority. The procedure for registration by consular institutions of these children is determined by the Government of the Russian Federation.

Recall that the specified Part 3 of Article 7 of Federal Law No. 62-FZ of 31.05.2002 "On Citizenship of the Russian Federation" was added to it only at the end of 2022 (Federal Law No. 538-FZ of 19.12.2022 "On Amendments to Certain Legislative Acts of the Russian Federation" // Collection of Legislation of the Russian Federation, 26.12.2022, No. 52, Article 9368), together with the norm establishing that a child who is born on the territory of Russia by a surrogate mother acquires Russian citizenship by birth.

Moreover, the Government of the Russian Federation, in accordance with the requirements of the legislation, adopted Resolution No. 999 of 17.06.2023 "On Approval of the Rules for Registration by Consular institutions of the Russian Federation of children Specified in Part Three of Article 12 of Federal Law No. 62-FZ of May 31, 2002 "On Citizenship of the Russian Federation". Moreover, the said Resolution immediately self-limited its validity period until 10/26/2023 (the moment of entry into force of the new Law on Russian Citizenship). That is, it was accepted for a period of slightly more than 4 months.

It is clear that the legislation in the field of surrogacy has changed significantly over the past year, and now, in fact, only Russian citizens can be potential parents (at least one of them is mandatory) (Federal Law No. 323-FZ of 21.11.2011 (ed. of 07/24/2023) "On the basics of protecting the health of citizens in the Russian Federation Federation" (with amendments and additions, intro. effective from 01.09.2023) // Collection of Legislation of the Russian Federation, 28.11.2011, No. 48, Article 6724.). However, whether the consular institutions managed to register all children born or carried by surrogate mothers at the time of the adoption of new legislative provisions (as of 12/19/2022) during the four months of the said Rules, remains a big question. And whether such lists remain relevant after 10/26/2023, if there is no corresponding provision in the new Federal Law "On Citizenship of the Russian Federation".

Well, perhaps the situation will become clearer a little later, but for now, returning to the general provisions of the new Law on Citizenship, we note that the following Article 7 on citizenship and marriage in the new iteration has not actually changed, and still establishes that the conclusion /dissolution of marriage between a citizen of the Russian Federation and a person who is not such does not entail a change in the citizenship of these persons, and their children, too. As well as the change of citizenship by one of the spouses does not mean a change in the citizenship of the other spouse. There have been no changes here, which cannot be said about the next, eighth article of the law on the citizenship of children and incapacitated persons. Although here, in terms of changes, it is possible to note the form rather than the content.

In the previous Law, a separate chapter was devoted to the issues of citizenship of children and incapacitated persons, which included four separate articles, and in our opinion, at least for reasons of convenience of application, this was justified, since each article had its own title defining a narrower subject of legal regulation, which, accordingly, is essential in this way, it facilitated the search and use of the necessary legal material.^[17]

In the new version, there is only one article consisting of eight parts, reflecting both the specifics of acquisition and the specifics of termination of citizenship of minors and persons incapacitated for other reasons.

So, moving on from changes in form, let's analyze the change in the content of these legal regulations.

First of all, attention is drawn to the provision of Part 1 of Article 8 (which is a transformed provision of Article 24 of the previously existing law), according to which the citizenship of the child follows the citizenship of the parents (adoptive parents) in accordance with this Federal Law. Here, the word "should" combines cases of acquisition and termination of citizenship of a child together with his parents (single parent) on an alternative basis.

At the same time, if the Russian citizenship of one of the parents (adoptive parents) is terminated, and the other parent (adoptive parent) remains a Russian citizen, their child retains Russian citizenship. Neither one nor the other are meaningful novelties of the new law, in relation to the old one.

The exceptions to this general rule have not changed either. Thus, the Russian citizenship of a child, as before, cannot be terminated if, as a result of the termination of citizenship, he becomes stateless.

In fact, other norms on the citizenship of minors and incapacitated persons have remained unchanged. Including the provision of Part 8 of Article 8 on the obligation of consent to citizenship for children aged 14 to 18 years, which existed earlier, but structurally, in the final Law on Citizenship, was in another chapter devoted to the regulation of the legal status of certain categories of persons located on the territory of the Russian Federation (Chapter VIII.1.).

Nevertheless, one editorial nuance should still be noted, which takes place in Part 7 of Article 8 of the new Law on Citizenship of the Russian Federation. So, if the previously valid Law stated that the citizenship of a child adopted by foreigners (a foreigner) can be terminated at the request of the adoptive parents (adoptive parent), provided that the child does not become a stateless person,^[18] now, the condition preventing withdrawal from Russian citizenship - leaving stateless, has been changed to a more extended version - a contradiction to the interests of the child. It is obvious that the new version is evaluative, assuming that a child can retain his Russian citizenship, not only if there is a danger of remaining stateless in general, but also under other circumstances contrary to his interests. However, the new Law does not disclose what circumstances these may be, leaving this issue at the discretion of the law enforcement officer. On the other hand, theoretically, it opens up the possibility for termination of a child's citizenship without guarantees of obtaining another citizenship, since such a condition is now not explicitly spelled out in the new Citizenship Law. Probably, in order to ensure compliance with the principle of reducing statelessness established by Law, and at the same time expand the list of reasons preventing the loss of citizenship of children adopted by foreign citizens, it would be worthwhile to choose a different version of the fragment under study, Part 7 of Article 8, stating it, for example, as follows: "Citizenship of the Russian Federation of a child adopted (adopted) by foreign citizens citizens or a foreign citizen may be terminated at the request of both adoptive parents or the sole adoptive parent in the manner provided for by this Federal Law, provided that the child does not become a stateless person, and (or) if it does not contradict the interests of such a child.".

The first chapter of the new Law on Citizenship of the Russian Federation ends with Article 9, devoted to various aspects related to documents certifying the presence of Russian citizenship. In contrast to the article 10 of the same name, the previously valid Law on Citizenship (which contained only one part of a blank character), the new version of the article looks very lengthy, including 10 parts, some of which also contained up to twelve paragraphs. Let's look at some of them.

The first part of Article 9 establishes that the main document certifying Russian citizenship and the identity of a citizen on the territory of the Russian Federation is a passport of a citizen of Russia. There is no mention of any other documents containing an indication of a person's citizenship (as was the case in the previously valid Law on Citizenship) in this part of the speech.

Recall that the earlier Law on Citizenship of the Russian Federation was not so categorical, determining that the document certifying the citizenship of Russia is a passport of a citizen of the Russian Federation or another basic document containing an indication of the citizenship of a person. At the same time, the types of basic documents certifying the identity of a citizen of the Russian Federation are determined by federal law. We were talking here about Federal Law No. 114-FZ of 15.08.1996 (ed. of 04.08.2023) "On the procedure for leaving the Russian Federation and entering the Russian Federation" (Collection of Legislation of the Russian Federation, 19.08.1996, No. 34, Article 4029), which, in turn, in Article 7 established that the main documents certifying the identity of a citizen of the Russian Federation, according to which citizens leave and enter the Russian Federation, are recognized: passport; diplomatic passport and service passport. Probably, the exclusion of references to other documents certifying the identity of a citizen in the new Law on Citizenship is due to the fact that Article 9 of this Law includes a clarification that it is a document certifying Russian citizenship and the identity of a citizen on the territory of the Russian Federation, and not when crossing its borders. From which it should probably follow that diplomatic and service passports are no longer documents on the territory of the state certifying Russian citizenship and the identity of a citizen. Only a passport can serve as such a document. However, at the same time, part 10 of art.9 of the new Law on Citizenship states that the document certifying the citizenship of the Russian Federation, along with the passport, may be another document containing an indication of the citizenship of the Russian Federation. At the same time, the list of such documents is now established not by federal law (as it was earlier), but by an act of the President of the Russian Federation. Such a document can be considered, adopted back in 2002, the Decree of the President of the Russian Federation dated 14.11.2002 No. 1325 (ed. dated 04.09.2023) "On approval of the Regulations on the procedure for considering issues of citizenship of the Russian Federation" (Rossiyskaya Gazeta, No. 219, 19.11.2002.).

We believe that such a construction of a legal regulation, taking into account the separation of provisions that are quite difficult to combine with each other between parts 1 and 10 of one, where part 1 states that there is only one document confirming citizenship – a passport, at the same time, part 10 says that there may be other similar documents, and between them parts 2-9, devoted to other issues, it cannot be considered too successful from the point of view of clarity and logic of the presentation of legal material. Probably, it would be necessary to state these norms more consistently, avoiding editorial decisions that look like internal contradictions.

Summing up, we note that in the most complicated historical period (determined not only by geopolitics, multidirectional migration flows, territorial changes, but also by the difficult demographic situation) that our country is experiencing, the legislation on citizenship, like no other sphere of legal regulation, must meet modern conditions and challenges of the time,^[19][20] therefore, the adoption of the new Federal Law "On Citizenship of the Russian Federation" in 2023 looks very justified. At the same time, it is obvious that, despite the certain similarity of the new law with the previously existing one, even its first chapter, devoted to the general provisions regulating issues of Russian citizenship, contains a number of novelties that allow us to talk about a significant change in legal regulations in this area.

Of course, it is not excluded, and even quite likely, that the new provisions of the legislation will still be "polished", changed and improved, which is supported by the fact that the first changes have already been made to the law adopted, but not yet entered into force (Federal Law No. 386-FZ of 07/24/2023 "On the introduction of amendments to Certain legislative acts of the Russian Federation" // Parliamentary Gazette, No. 29c, 31.07.2023). Therefore, we express confidence that over time, the law will get rid of some of the shortcomings that it currently has, will take complete forms and will serve the Russian legal system for many years to come.

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