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6I Journal of Siberian Federal University. Humanities & Social Sciences 2022 15(8): 1134-1144
DOI: 10.17516/1997-1370-0916 EDN: IAJGPX УДК 342.9
Digital Transformation of the Procedure for Administrative Expulsion, Deportation and Readmission of Foreign Citizens and Stateless Persons from the Territory of Russia
Yulia V. Paukova*
National Association of Specialists of Administrative Law Moscow, Russian Federation
Received 20.07.2021, received in revised form 11.12.2021, accepted 04.05.2022
Abstract. The necessity of reforming the administrative expulsion, deportation and readmission of foreign citizens and stateless persons from the territory of Russia has been substantiated.
Police officers should be authorized to bring to administrative responsibility with the appointment of administrative expulsion and to make decisions on the deportation and readmission of foreign citizens and stateless persons on the basis of the proposals of the "Automated Information System of Migration Control", formed using artificial intelligence technologies. The decisions must be appealed in court.
The approach developed in the study for the implementation of "The Social Rating System
of Foreign Citizens and Stateless Persons" will influence the adoption of such decisions
and establishing the exact period of non-entry into the Russian Federation.
The article substantiates the measures that will make the relevant procedures transparent,
and the decisions made verified and justified, that will also help eliminate subjectivity in
decision-making.
Keywords: administrative expulsion, deportation, readmission, non-entry decision, foreign citizen, social rating, digitalization, automated information system, artificial intelligence, migration.
Research area: law.
Citation: Paukova, Yu.V. (2022). Digital transformation of the procedure for administrative expulsion, deportation and readmission of foreign citizens and stateless persons from the territory of Russia. J. Sib. Fed. Univ. Humanit. soc. sci., 15(8), 11341144. DOI: 10.17516/1997-1370-0916
© Siberian Federal University. All rights reserved
* Corresponding author E-mail address: ypaukova@mail.ru ORCID: 0000-0001-6434-3983
Цифровая трансформация порядка назначения административного выдворения, депортации и реадмиссии иностранных граждан и лиц без гражданства с территории России
Ю. В. Паукова
Национальная ассоциация административистов Российская Федерация, Москва
Аннотация. Обоснована необходимость реформирования административного выдворения, депортации и реадмиссии иностранных граждан и лиц без гражданства с территории России.
Предложено уполномочить сотрудников органов внутренних дел привлекать к административной ответственности с назначением административного выдворения и выносить решения о депортации и реадмиссии иностранных граждан и лиц без гражданства на основании предложений «Автоматизированной информационной системы контроля миграции», сформированных с использованием технологий искусственного интеллекта.
Разработанный в статье подход по внедрению «Системы социального рейтинга иностранных граждан и лиц без гражданства» будет влиять на принятие указанных решений и на установление точного срока неразрешения въезда в Россию. В статье обоснованы меры, которые позволят сделать соответствующие процедуры прозрачными, а вынесенные решения выверенными и обоснованными, что также будет способствовать устранению субъективизма при принятии решений.
Ключевые слова: административное выдворение, депортация, реадмиссия, неразрешение въезда, иностранный гражданин, социальный рейтинг, цифровизация, автоматизированная информационная система, искусственный интеллект, миграция.
Научная специальность: 12.00.00 - юриспруденция.
Introduction
Many countries of the world at the state level make decisions to move to a new economic and technological order based on digital technologies. Special attention is also paid to digitalization of the activities of the Russian state. The active development and implementation of digital technologies will make it possible to make breakthrough transformations in the country and allow the state to be competitive on the world stage.
The Strategy for the Development of the Information Society in Russia, approved by the Russian President in 2017, for several decades determined the directions of the State's activities in the application of information and communi-
cation technologies (Decree of the President of the Russian Federation No. 203). The Russian Government has been entrusted to organize accelerated implementation of digital technologies until 2024, in particular, in the field of public administration (Decree of the President of the Russian Federation No. 204).
The Presidential Council for Strategic Development and National Projects approved a number of documents aimed, in particular, at the development of systems capable of processing and storing large amounts of data, as well as at the development of artificial intelligence (hereinafter referred to as AI), robotics, and the creation of a state unified cloud platform (Pass-
port of the National Program "Digital Economy of the Russian Federation").
Successful development and implementation of the above-mentioned tools will allow the state to make a qualitative growth in public administration. However, digital technologies need to be introduced into such a sphere of public administration as the fight against illegal migration.
The List of Instructions on the Implementation of the Concept of State Migration Policy for 2019-2025 is dedicated mostly to the dig-italization of the migration sphere. However, little attention has been paid to the modernization of administrative coercion measures applied to foreign citizens and stateless persons (hereinafter - foreign citizens, foreigners, migrants) in case of violation of migration legislation, despite the fact that the State traditionally pays special attention to combating illegal migration.
The procedures for administrative expulsion from Russia and deportation have been in effect in Russian legislation since 2002 without significant changes. Transfer on the basis of international readmission agreements (hereinafter - readmission) was introduced into the Russian law in 2008. Since then, the procedure for applying these measures has not changed significantly (administrative expulsion, deportation and readmission hereinafter - expulsion).
Theoretical framework
The study of the expulsion of foreigners in international law was carried out by Bluntschli (1877), Gefter (1880), Oppenheim (1948).
The issues of administrative expulsion, deportation and readmission from the territory of Russia have been investigated in scientific works by Shurukhnova (2001), Kondakov (2004), Gorbunov (2005), Gerasimov (2005), Kuz'menko (2006), Kataeva (2007), Poliakova (2008), Sherstoboev (2009), Kazhaeva (2014), Zubova (2016), Simakov (2016), Ogienko (2019).
The use of AI in legal practice and bringing to administrative responsibility was studied by Thompson (2015), Kingston (2016), Ashley (2017), Zeleznikow (2017), Pullen (2019), Zaplatina (2019), Reiling (2020).
Social credit system has been studied by Hodson (2015), Backer (2017), Chen and Cheung (2017), Chorzempa et al. (2018), Blomberg (2020), Bayer et al. (2020), Everling (2020), Timofeeva (2020).
Currently, foreign citizens who are outside the border territory, in case of violation of migration legislation, can be expelled from Russia by administrative expulsion, deportation and readmission.
Decisions on administrative expulsion from the country, deportation and readmission in Russia are not made (except in some cases) from March 15, 2020 to September 30, 2021 due to the measures taken in connection with the COVID-19 pandemic. At the same time, until June 15, 2021, the courts could make decisions on administrative expulsion in the form of a "controlled self-departure". At the same time, the validity of all kind of permits were extended (Decree of the President of the Russian Federation No. 274; Decree of the President of the Russian Federation No. 364).
The countries of the European Union have also taken a number of similar measures. At the same time, "there was no uniformity between the EU Member States regarding the measures taken" (Sommarribas and Nienaber, 2021).
Administrative expulsion from the Russian Federation, which is one of the types of administrative punishments, is applied in accordance with the Code of Administrative Offenses as a punishment for committing certain administrative offenses by foreigners.
Cases of administrative offenses committed in the field of migration legislation are got turned on by the police with their subsequent transfer to the court for consideration. If a migrant is brought to administrative responsibility, a judge will impose an administrative fine with or without administrative expulsion. When imposing punishment, the courts take into account the nature of the offense, the identity of the offender, his property status, as well as the circumstances mitigating responsibility (include marital status) and aggravating responsibility (include bringing to administrative responsibility before). The choice of the form of administrative expulsion belongs to the judge considering the case, and depends on
the circumstances, including the material and physical possibilities for independent departure from the territory of the Russian Federation (Kostyria, 2017).
At the same time, firstly, some provisions of the Code of Administrative Offenses provide for the appointment of an administrative fine with mandatory administrative expulsion, that in some cases contradicts Article 8 of the Convention for the Protection of Human Rights. In this regard, D. N. Shurukhnova proposes to envisage administrative expulsion as an additional alternative punishment, imposed or not when a decision is made on the case, taking into account the personality of the person brought to administrative responsibility and other circumstances of the case (Shurukhnova, 2019). Secondly, the judicial practice on bringing migrants to administrative responsibility in case of violation of migration legislation is not uniform.
Internal discretion of judges when making decisions exists in other countries. For example, in the USA "judges' personal attitudes, biases, and motivations are often revealed as they articulate their desire to circumvent the removal process for noncitizens they view as "deserving" of relief - but for whom only temporary relief from removal is often available given judges' interpretations of immigration law" (Asad, 2019).
Currently, the courts hear all cases, even in the case of a foreigner's consent of a committing an administrative offense and willingness to be punished. Note that administrative expulsion is appointed by the border authority, rather than the court, if a foreign citizen commits an administrative offense on the Russian border territory (Code of Administrative Offenses).
Unlike the procedure for bringing foreign citizens to administrative responsibility, bringing to responsibility of vehicle owners is carried out automatically when violations are recorded with special technical means (Code of Administrative Offenses).
The next type of removal from the territory of Russia is deportation. This is the forced transfer of a foreigner from the country in case of loss or termination of legal grounds for
his further stay (residence) in Russia (Federal Law No. 115-FZ). This type of administrative coercion is aimed at ensuring the safety and protection of citizens and the state (Smash-nikova, 2011). The assignment of deportation is carried out by police officers. Russian legislation provides 6 grounds for the deportation of migrants.
The third type of expulsion is readmission. Agreements on readmission provide for the admission by Russia from foreign states of its own citizens and foreign citizens who are citizens of third countries, as well as the transfer of foreigners to another state. There are 5 grounds for the transfer of foreigners on the basis of readmission agreements.
The transfer in accordance with readmission agreements is carried out on the basis of decisions made by the chief of the police authorities. Note that administrative expulsion in the form of forced and controlled transfer is carried out by the bailiffs, and the readmission procedure is carried out by policemen. In this regard, the transfer on the basis of an agreement on readmission of persons subject to administrative expulsion is difficult to implement and requires the issuance of an appropriate in-teragency legal act.
Administrative expulsion, deportation and readmission from the territory of the country entails the closure of the entry to a foreigner for 3, 5 or 10 years. If the expulsion is carried out for the first time, the entry closure period is 5 years, if it is repeated - 10 years. In case of termination of the readmission procedure due to voluntary departure at their own expense or at the expense of a third party, the deadline for closing entry to Russia is 3 years.
Statement of the problem
In case of violation of migration legislation decisions on administrative expulsion are made by judges, based on materials prepared by the police officers. The decisions on deportation and readmission are made by the police. Preparation, consideration and decision-making is carried out 'in manual mode', that requires large human resources, time expenditures and does not guarantee the absence of the influence of the human factor.
At the same time the period for which the entry is closed does not depend on the personality of the offender or the nature of the offense, but on the number of cases of administrative expulsion, deportation and readmission.
Given that digital technologies allow improving various areas of activity, the procedure of appointment of all types of expulsion should be reformed. The methods of applying the considered measures of administrative coercion should be improved by introducing AI methods in making decisions. Moreover, the period of non-entry for foreign citizens must be fair and proportionate to the committed misconduct and offense. At the same time under the conditions of digitalization, the legality and fairness of decisions should increase.
The subject of this study is the procedure for assigning three types of expulsion of foreign citizens and stateless persons from the territory of Russia in case of violation of migration legislation. The object of the research is the social relations that develop in the process of administrative expulsion, deportation and readmission of these persons in the event of their violation of migration legislation. Its purpose is to develop proposals for reforming the procedure for assigning types of expulsion from the territory of Russia to foreign citizens.
Discussion
It is planned to create In Russia a Unified Information Platform for registering foreign citizens, which will contain digital profiles of migrants. Foreigners will be able to apply for public services in electronic form, receive information about their end of the period of stay and validity of documents, as well as the need to leave the country (In Russia will create a single database of digital profiles of foreigners staying in the country).
Artificial intelligence technologies are one of the most popular and fastest growing areas of scientific research. The ability to process big data exceeds human capabilities. AI generally refers to the ability of a machine to demonstrate human intelligence, for example, when solving a problem without using software containing detailed instructions (Tupchienko, 2018).
Currently, the most popular is machine learning (hereinafter - ML), based on statistical modeling. Popular ML algorithms such as neural networks or gradient boosting are capable of recognizing even the deepest relationships in datasets that can often achieve very high accuracy of predictions (Nikitin, 2018). An example of the effective use of ML methods in making court decisions is the program that achieved 79 % accuracy in determining the outcome of the case, as a result of analysis of 584 judgments of the European Court of Human Rights (Taylors, 2016). To make AI more efficient in decision making, more algorithms need to be introduced to cover more cases contained in judicial decisions (Zaplatina, 2019).
With regard to the issuance of 'court' decisions, the computer calculates the result based on the analysis of a large number of documents, based on the input data. Due to the lack of understanding of how the decision was made and what initial data influenced it, the decisionmaking algorithm is often called a 'black box'. However, to solve the 'black box' problem, programmers have already proposed dozens of programs. Many are based on the idea of replacing a complex, poorly interpreted model with one or more simple models that are similar in their properties (Krakhalev, 2015).
The work of programmers on the black box problem solves a number of issues. First, the ability to provide a person with information, on the basis of which the program made a certain decision. Secondly, psychologically people trust the solution of the system if they have an understanding of how it came to such a result. Third, information about which variables the program uses and how they affect the final result allows it to be improved, thereby improving the quality of the result.
In this case, special attention should be paid to the security of the information system. It is necessary to use effective measures of protection against accidental or deliberate influences on information, impact on systems of its processing and transmission. Information security technical means solve various problems to protect the system, in particular: access control, including authentication and authorization
procedures, audit, information encryption, anti-virus protection, network traffic control (Guseva and Kireev, 2014).
The presence of the described computer technologies makes it possible to modernize the procedure for making the considered decisions in relation to migrants in the event of their violation of migration legislation.
Taking into account the vigorous activity of the state aimed at digitizing the migration sphere, and the availability of the abovemen-tioned technologies, we propose to create an "Automated Information System of Migration Control" (hereinafter - the System). The System will receive information about foreigners from the Unified Information Platform and other state automated information systems. Then, using the machine learning method, the System will propose to the official a draft of the appropriate decision (based on the analysis of a huge number of decisions on bringing foreigners to administrative responsibility and deportation), taking into account information about the identity of the migrant, his marital status and other information affecting the issuance of decisions (including information about family members - citizens of Russia and other information that prevents the adoption of these
decisions). The procedure for making decisions is shown in the Fig. 1.
In accordance with the art. 26.2 of the Code of Administrative Offenses, evidence is established by protocols, explanations of a foreigner, testimony of witnesses and other documents. In this regard, it is necessary to provide for the possibility for officials to enter all the listed documents into the System in a formalized way. In the same way it must be entered into the System circumstances precluding the proceedings on an administrative offense under art. 24.5 of the Administrative Code.
The System also should contain information on the existence of valid agreements on readmission and on the conditions for sending applications (requests) for readmission, acceptance and transfer of foreign citizens. When authorized officer confirm the need to apply a readmission agreement, the System should automatically generate a draft decision on readmission and a request for readmission to another state and other documents necessary for the readmission of a migrant.
It is necessary to provide for the possibility of access to the data of a foreigner by policemen not by entering personal data manually, but in a faster way - by scanning a QR code
Fig. 1
generated for each migrant when creating his profile in the information system. In addition, it is necessary to establish the possibility of self-entry of information by the migrant (through the created personal account).
All decisions made must be detailed and contain all the information about the foreigner taken into account by the system. If there is any information that is not taken into account by the System, due to the capabilities of the program, a foreign citizen should have the right to appeal the decision to a court. Subsequently, with the help of AI technologies, the System will take into account the decisions of a court when making next decisions.
Many countries have rating based systems. For example, credit ratings are actively used (Cantor and Packer, 1994). At the same time, it is proposed when calculating an individual credit rating to use neural networks along with expert estimates (Rzayev et al., 2019). In Russia, when assigning an insurance pension, an "individual pension coefficient" is calculated, which is also called "pension points" (Federal Law No. 400-FZ).
At the same time, the most controversial is the China's Social Credit System. This Credit System still scares the rest of the World (Bayer et al., 2020). It is planned to evaluate people and organizations based on data on the financial and social behavior of them, and then to punish or encourage in accordance with certain agreed standards of good conduct (Chorzempa et al., 2018). "The more understandable is the assessment, the more impartially it is being fulfilled, the stronger is the public support" for the China's System. It is planned to extend this system not only to persons, but "also companies as legal entities and then various non-profit and management structures and organizations, and their leadership" (Bayer et al., 2020).
The Social Credit System does not create new data about a specific person, it systematizes existing data. Such systems have actually entered our lives. For a long time, applications have been actively using ratings and feedback systems. People prefer to use services with good reviews.
It is necessary to introduce a Social Rating System of Foreign Citizens in Russia,
which will make possible to apply administrative coercion measures to migrants, taking into account the points scored and to calculate a fair period of non-entry permission when making decisions on removal from the territory of Russia.
For example, points should be accrued to foreigners for knowledge of the Russian language, the basic knowledge of the law and the history of Russia, the presence of education, work experience in the specialty; the presence of close relatives - Russian citizens and non-Russian citizens permanently residing in Russia; no violations of criminal and administrative legislation during the year; timely payment of fines; the amount of taxes paid; length of stay (residence) in Russia; availability of income and housing in Russia; the amount of investment; passing a medical examination; voluntary departure and payment of removal costs in case of deportation during the previous stay, as well as for "good deeds" (for example, social work) and compliance with the "Code of Ethics" which should be developed.
Penalty points should be awarded in case of committing administrative or criminal offenses, the presence of infectious diseases that pose a danger to others, failure to comply with the requirement to leave the territory of the country in the event of an appropriate decision, evasion from entering the data into the System, entering inaccurate information and falsification documents.
The final rating of a foreigner will affect the amount of an administrative fine when brought to administrative responsibility, making a decision on administrative expulsion, deportation and on the exact deadline for non-entry (up to a day).
With the help of the proposed Social Rating System of Foreigners, the presence of close relatives - Russian citizens will not be an unconditional "indulgence" for migrants who systematically or grossly violate Russian legislation.
In the case of committing an intentional crime, the rating of a migrant should be influenced by the sentence passed taking into account the nature and degree of social danger of the crime committed by him, his personal-
ity, as well as the circumstances that mitigate and aggravate the punishment. We consider that when committing especially grave crimes against life, health or public safety, such a number of penalty points should be awarded so that a foreigner should not be allowed to enter the country for life, and not for 10 years, as provided for by the current regulatory legal acts.
Conclusion
Russian legislation concerning the procedure for the appointment of administrative expulsion, deportation and readmission of foreign citizens from the territory of Russia needs to be reformed. Bringing foreign citizens to administrative responsibility by the police, the
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