CC BY
56Law and globalisation / Право и глобализация
UDC 325.1:342.721.6
DOI: 10.37399/issn2686-9241.2020.1.36-58
Trends in the Development
of Migration Legislation
in the Context of Modern Challenges
Liudmila V. Andrichenko*, Inna V. Plyugina*
* Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia For correspondence: [email protected]
Introduction. The change in the paradigm of regulating migration processes in the Russian Federation in the early 1990s, the liberalization of the general approach to ensuring the right to freedom of movement, the choice of place of residence; they all dictated the beginning of the current stage of development of migration legislation. For nearly thirty years, the general array of legal acts grew, individual institutions of migration legislation were modernized under the influence of political, socio-economic and other factors, and the legal means of counteracting current challenges and threats was improved.
Materials. Methods. The complex nature of migration legislation is due to both the versatility and the multi-level character of the relationships that develop as a result of various relocations of population. Like any other branch or institution, migration legislation is not without its flaws; it has its own problems and defects that need to be resolved. Nevertheless, it can be stated that today its setting up has, in general, been completed, and this allows us to formulate a scientifically-based assessment of its effectiveness and identify key trends for further development. The purpose of this study is to analyse the overall dynamics of the development of migration legislation, to identify the main trends in the legal regulation of its individual sub-sectors, as well as to develop recommendations aimed at overcoming the identified problems. Results. The study showed a close relationship of the state migration policy with its economic, demographic and ethnocultural policies. The role of external migration, as the most important compensatory mechanism for reducing the population of the country, is noted. At the same time, migration can be considered not only as a particular resource of a country's economic and demographic development, but also under certain conditions it can be perceived as a security threat to the state, its population, territory, especially if the migration policy is inconsistent, or if there is a significant gap between conceptual grounds and migration management practices. Discussion and Conclusion. The factors that influence the development of Russian migration legislation are revealed, among which a special role is played by the openness of migration space and the intensity of migration flows, the associated active involvement of Russia in world migration processes, the participation of the Russian Federation in interstate integration, the preservation of uncontrolled migration, etc. The article examines the details of the development of individual sub-sectors of migration legislation, the allocation of which is associated with the regulation of basic directions and types of migration, especially of foreign labour migration as the main mass migration flows; voluntary resettlement to the Russian Federation of compatriots living abroad; forced and educational migration. Summing up, it can be stated, that the increase in efficiency in the development of migration legislation is connected with the need for its precise systematiza-tion, including the perceived shortcomings of a categorical and conceptual apparatus, the chaos and imbalance in the use of legislative forms by which it develops - all of which which prevent migration legislation from becoming a fully-fledged branch of Russian legislation.
Keywords: migration, migration legislation, migration policy, labor migration, forced migration, educational migration, liability for illegal migration
For citation: Andrichenko, L.V. and Plyugina, I.V., 2020. Trends in the Development of Migration Legislation in the Context of Modern Challenges. Pravosudie = Justice, 2(1), pp. 36-58. DOI: 10.37399/issn2686-9241.2020.1.36-58
Тенденции развития миграционного законодательства в условиях современных вызовов
Л.В. Андриченко*, И.В. Плюгина*
* ФГНИУ «Институт законодательства и сравнительного правоведения при Правительстве Российской Федерации», г. Москва, Россия [email protected]
Введение. Изменение парадигмы регулирования миграционных процессов в Российской Федерации в начале 1990-х гг., либерализация общего подхода к обеспечению права на свободу передвижения, выбор места пребывания и жительства определили начало современного этапа развития миграционного законодательства. В течение почти тридцати лет нарастал общий массив нормативных правовых актов, под воздействием политических, социально-экономических и иных факторов модернизировались отдельные институты миграционного законодательства, совершенствовались правовые средства противодействия современным вызовам и угрозам.
Материалы и методы. Комплексный характер миграционного законодательства обусловлен как многогранностью, так и многоуровневым характером отношений, складывающихся в результате разнообразных по направленности и причинам перемещений населения. Как и любая другая отрасль или институт, миграционное законодательство не лишено недостатков, имеет свои проблемы и дефекты, требующие преодоления. Тем не менее можно констатировать, что на сегодняшний день его формирование в целом завершено, и это позволяет дать научно обоснованную оценку его эффективности и определить ключевые тенденции дальнейшего развития.
Целью данного исследования является анализ общей динамики развития миграционного законодательства, выявление основных тенденций в правовом регулировании его отдельных подотраслей, а также разработка рекомендаций, направленных на преодоление выявленных проблем.
Результаты исследования. Обоснована тесная взаимосвязь миграционной политики государства с его экономической, демографической и этнокультурной политикой. Отмечается роль внешней миграции как важнейшего компенсаторного механизма сокращения численности населения страны. При этом миграция не только может рассматриваться как определенный ресурс экономического и демографического развития страны, но и восприниматься при определенных условиях как угроза безопасности государства, ее населения, территории, особенно если миграционная политика носит непоследовательный характер, имеется значительный разрыв между концептуальными основаниями и практикой регулирования миграции.
Обсуждение и заключение. Определены факторы, оказывающие влияние на развитие российского миграционного законодательства, среди которых особую роль играют открытость миграционного пространства и интенсивность миграционных потоков, связанная с этим активная вовлеченность России в мировые миграционные процессы, участие Российской Федерации в межгосударственной интеграции, сохранение неконтролируемой миграции и др. Установлены особенности развития отдельных подотраслей миграционного законодательства, выделение которых связывается с регулированием главных направлений и видов миграции, прежде всего внешней трудовой миграции как наиболее массового миграционного потока; добровольного переселения в Российскую Федерацию соотечественников, проживающих за рубежом, вынужденной и образовательной мигра-
ции. Резюмируется, что повышение эффективности миграционного законодательства обусловлено его четкой систематизацией, разработкой категориально-понятийного аппарата, использованием законодательных форм, посредством которых оно развивается. Эти меры позволят превратить миграционное законодательство в полноценную отрасль российского законодательства.
Ключевые слова: миграция; миграционное законодательство; миграционная политика; трудовая миграция; вынужденная миграция; образовательная миграция; ответственность за незаконную миграцию.
Для цитирования: Андриченко Л.В., Плюгина И.В. Тенденции развития миграционного законодательства в условиях современных вызовов // Правосудие. Т. 2, № 1. С. 36-58. DOI: 10.37399^п2686-9241.2020.1.35-58
Introduction
T he modern world is an arena of global migration processes1. International migration is not only growing, but also largely determines the vectors of political, economic, socio-cultural development of states. The connection of migration with the economic and social development of countries and even entire regions, due to the importance, significance, and value of human capital, is stated in the Global Treaty for Safe, Orderly and Legal Migration adopted in December 2018 in Marrakesh2. In the 21st century, the world community called migration, along with other factors, a tool for achieving sustainable development goals3. Migration flows have acquired a significantly more complex structure than before, and therefore, the foreign doctrine even introduced a special term "superspecificity" to denote the unprecedented degree of differentiation of migrants. [Vertovec, St., 2007, p. 1025]. The increase in volume, diversity, geographical coverage and total international migration is usually associated with advances in transport
According to a study by the UN Department of Economic and Social Affairs, the number of international migrants in the world is 258 million people, which is 49 % more than in 2000. This means that about 3.4 % of all people on Earth are migrants, i.e they do not live in the countries where they were born. Such a scale of migration indicates that there is a constant exchange of population between countries.
The Russian Federation supported the adoption of the Global Treaty on Safe, Orderly and Legal Migration. This document covers many aspects of international migration, including the humanitarian component, development issues, human rights, and the fight against crime. And although the Treaty is not a legally binding document, the goals and principles developed therein can become the basis for long-term comprehensive international cooperation aimed, inter alia, at creating channels for the formation of legal migration, mechanisms for effective control of migration processes, the development of tools to combat illegal migration and crimes in the migration sphere.
Of the 17 goals, goal 10 directly provides for safe, orderly and regulated migration. At the same time, migration is a cross-cutting issue, one way or another related to all the goals of sustainable development (Report on Sustainable Development Goals. United Nations. New York, 2017). URL: https://unstats.un.org/sdgs/files/report/2017/th esustainabledevelopmentgoalsreport2017_russian.pdf (accessed: 25.03.2019).
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and communication technologies and more generally with globalization processes. [Czaika, M. and Haas, H. de, 2014, p. 284].
Russia is actively involved in the global flow of relocation4. In this connection, migration plays a huge role in the modern history of Russia and is one of the most important factors for its future development. According to Russian researchers, in 2005-2017 (with the exception of the crisis years of 2008-2009) there was a general growth trend for the main indicators of external (international) migration in the Russian Federation -in terms of the number of arrivals and departures, the balance of migration growth over the indicated period was positive [Trubin, V., Nikolaeva, N., Myakisheva, S. and Husainova, A., 2018, p. 3]. This corresponds to international statistics, according to which in Russia the net migration rate in recent years (immigrants minus emigrants per 1,000 people) is 1.4, and the inflow of permanent and temporary population is 384,300 people5. At the same time, it should be taken into account that the parameters of the macroeconomic situation in the country always have a noticeable effect on the main indicators of the increase in external migration. It goes without saying that this is not the highest rate of population growth: for example, the population of the European Union is increasing only by 20 % due to natural growth, and by 80 % due to immigration inflows. [Malahov, V.S., Mkrtchyan, N.V., Florinskaya, Yu.F., et al., 2015, p. 6].
At the same time, the trend of internal, mainly labor migration in Russia is clearly increasing, which is associated with the growth of interregional population relocation in the country, which indicates a transition to a new development paradigm. The main tools for regulating internal migration today are regional programmes for increasing labour mobility, the creation and operation of the information and analytical system of the Russian vacancies database "Job in Russia", assistance to unemployed citizens and their family members in relocating for job placement and assistance from service agencies employment, etc. The change in the pattern of migration behaviour of the population can be viewed, on the whole, as a positive phenomenon in a market economy and seems to be very important from
4 The largest number of migrants, 49.8 million people, or 19 % of all migrants, live in the United States. The number of migrants living in Russia, Saudi Arabia and Germany reaches approximately 12 million people in each country; in the UK - 9 million people (Global Migration Indicators 2018. URL: https://publications.iom. int/system/files/pdf/global_migration_indicators_2018.pdf (accessed: 25.03.2019).
5 URL: https://migrationdataportal.org/?i=groups&t=2017 (accessed: 25.03.2019). According to Russian statistics, in the country since 2007 one of the target indicators defined in the Concept of the Demographic Policy of the Russian Federation for the period up to 2025, namely, the provision of migration growth at least 200 thousand people annually has been reached and then on a yearly basis (except for 2010) it was exceeded, (see: http://www.gks.ru/wps/wcm/connect/rosstat_main/rosstat/ ru/statistics/population/demography/# (accessed: 25.03.2019).
Russia's standpoint. The growth of internal labour migration is due to the solution of both current and future problems of regional socio-economic development: the reconstruction of the employment system and the regional labour market, and also measures related to changes in spatial and socioeconomic development.
The growth of the number of internal migrants is confirmed by the data of the Federal State Statistics Service, according to which the share of persons in internal relocations increased from 16.3 % in 2008 to 20.86 % in 20 1 76. Despite this, Russia still both at the interregional and intraregional levels, significantly lags behind the developed countries' internal migration average values. In the opinion of specialists, overcoming this lag will contribute to solving problems in regional labour markets' need to balance supply and demand for labour.
Theoretical Basis. Methods
Russia considers migration as a factor in the demographic, socio-economic and spatial development of the state7. Within the framework of spatial development, the continuing migration outflow of the population from the Far East, as well as from Eastern Siberia and the northern regions of the European part of Russia, has particularly disquieting for a long time, although over the past 10 years it has been gradually decreasing8.
The need to regulate migration flows prompts an active development of migration legislation, which for almost three decades of its existence has become a highly structured set of legal norms that has many signs of the sectoral isolation prevalent in the general system of Russian legislation [Habrieva, T.Ya., 2018, p. 29]. The complex nature of migration legislation is a result of both the versatility and the multi-level nature of relations which are formed as a result of population relocation of various kinds. Due to the increasing complexity of the approaches to the regulation of migration, caused by determining new independent migration flows and categories of migrants, in the structure of migration legislation, individual institutions are becoming increasingly pronounced. This depends on the functional role and type of migration (labour migration, forced migration, educational
URL: http://www.gks.ru/wps/wcm/connect/rosstat_main/rosstat/ru/statistics/ population/demography/# (accessed: 25.03.2019)
Decree of the President of the Russian Federation of October 31, 2018 No. 622 "On the Concept of the State Migration Policy of the Russian Federation for 2019-2025" // Collection of Legislative Acts of the Russian Federation. 2018. No. 45. Art. 6917.
Order of the Government of the Russian Federation of February 13, 2019 No. 207-p "On Approval of the Spatial Development Strategy of the Russian Federation for the Period up to 2025" // Collection of Legislative Acts of the Russian Federation. 2019. No. 7 (p. II). Art. 702.
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migration, etc.), which, in turn, reinforces the need to ensure the integration and systematization of the growing array of immigration laws.
As for the increase in the intensity of internal migration processes, this not only indicates a change in the model of the state migration policy of the state, but also leads to a change in the structure of the migration legislation of the Russian Federation. This is a result of the identification and separation of legislation on internal migration, which has a pronounced specificity, which is taking place within its framework. In practice, this leads to the parallel development of two sub-sectors of migration legislation -internal and external migration, which is largely due to the influence of the institution of citizenship and the consequent need for state security.
Russia's participation in interstate integration has a special influence on the regulation of migration as a whole, primarily labour migration, for instance, in interstate associations such as the WTO, the Union with Belarus, the Eurasian Economic Union, and concluding bilateral treaties and agreements with a number of states (France, China, Vietnam, Mongolia, the DPRK, Lithuania, etc.). Such interstate cooperation entails, as a rule, the establishment of features for certain categories of migrants, based on the provision of various types of favourable legal regime of entry and stay.
Results
Migration legislation of the Russian Federation cannot be called stable9. The high dynamics of the migration legislation of the Russian Federation is due to a number of factors, namely: the change in the migration situation itself, including the types of dominant migration flows, the adjustment of tasks
9 So, as of March 2019, the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation" (hereinafter - Federal Law No. 115-FZ), since its adoption, has changes on an annual basis; in total, over the period of its operation, 95 federal laws were adopted, modifying its content. As a result, to date, the volume of Federal Law No. 115-FZ is almost five times the original. However, it should be emphasized that the intensity of changes in recent years has decreased: if in 2013, 16 federal laws were adopted that amended it, in 2014, 14, in 2015, 12, in 2016 there were only 2, in 2017, 8, and in 2018 - 5. Almost as often, changes are made to the Federal Law of August 15, 1996 No. 114-FZ "On the Procedure for Exiting the Russian Federation and Entering the Russian Federation" (to date, 82 federal laws amending it have been adopted). Other federal laws relating to the migration legislation of the Russian Federation are updated, although less frequently, but also rather intensively: Law of the Russian Federation of June 25, 1993 No. 5242-1 "On the right of citizens of the Russian Federation to freedom of movement, choice of place of residence and dwelling within the Russian Federation" has changed 17 times for the entire period of its existence, Federal Law of July 18, 2006 No. 109-FZ "On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation" - 23 times, Federal Law of February 19, 1993 No. 4528-1 "On Refugees" - 19 times, Law of the Russian Federation of February 19, 1993 No. 4530-1 "On Forced Migrants" - 14 times.
and directions for the implementation of the state migration policy of the Russian Federation, the influence of various economic, political, especially geopolitical, social and other conditions. Considering that the toolkit which makes it possible to effectively regulate the sphere of migration, has not yet been formed, it can be predicted that in the coming years the migration legislation of the Russian Federation will remain mobile. In particular, it is obvious that in the foreseeable future, additional legislative regulation of the issues of sociocultural adaptation and integration of migrants, improvement of the legal framework for internal migration and forced migration, etc. will be required.
The use of methods of strategic planning and programme-targeted regulation in public administration contributed to streamlining the development of the migration legislation of the Russian Federation. Although it must be admitted that for many years the regulation of migration in the Russian Federation was of a situational nature, it was intended only for the short term, which led to a decrease in state control over migration processes in general, and in fact resulted in chaos in migration policy.
As of today, most of the tasks set in the previously existing Concept of State Migration Policy of the Russian Federation for the period until 2025, approved by the President of the Russian Federation on June 8, 2012, received legal support and were implemented. Planning measures for the implementation of the state migration policy of the Russian Federation is one of the four main mechanisms provided for in the Concept of the State Migration Policy of the Russian Federation for 2019-2025, through which it is implemented. At the same time, it should be emphasized that the element of "situational character" will always be present to some extent in the development of migration legislation, since it is impossible to fully predict the change in the migration situation, accurately determine the potential numbers of the migration flow and their structural characteristics.
Another trend in the development of the migration legislation of the Russian Federation observed in the last decade is a gradual transfer of regulation from the sub-legal to the legislative level, which partly explains the significant increase in the volume of federal laws regulating migration issues in one aspect or another. However, some problems associated with the use of the correct legal form still persist. For example, it seems expedient to extend the content of the Federal Law of May 24, 1999 No. 99-FZ "On the state policy of the Russian Federation in relation to compatriots abroad" due to the regulation of the legal status of compatriots who voluntarily move to the Russian Federation. This status is currently determined mainly by the State programme for assisting voluntary resettlement to the Russian Federation of compatriots living abroad, approved by the Decree of the President of the Russian Federation of June 22, 2006 No. 637, which cannot be considered an appropriate level of legal regulation.
The development of the migration legislation of the Russian Federation, as well as the state administration of the migration sphere as a whole, is undoubtedly affected by the overall process of "digitalization". Under the conditions of the new reality, the law as a whole becomes the object of its impact, as a result of which it undergoes changes in its form, content, system, structure, mechanism of action and shows a tendency to strengthen the emerging transformations [Habrieva, T.Ya. and Chernogor, N.N., 2018, p. 86]. Information technologies are actively being introduced into the public administration system, becoming powerful and effective tools for implementing state migration policy. For example, many existing administrative procedures applied in the field of migration can be implemented in electronic form; the law provides for the possibility of using a number of electronic documents; some documents proving the identity of a citizen of the Russian Federation and a foreign citizen may contain electronic data carriers with the personal data of the owner recorded on them. Digital photography is widely used to implement state functions, as well as electronic storage of the owner's biometric personal data (electronic image of a person's face and fingerprints). Since 2017, electronic visas have been used in Russia; in spite of the fact that so far this type of visa can be issued only to citizens of certain foreign countries, on condition that they enter the Russian Federation through checkpoints across the State Border of the Russian Federation located on the territory of the free port of Vladivostok and on the territory of the Special Economic Zone in the Kaliningrad Region, as well as through the air checkpoints of the Far Eastern Federal District, it can be predicted that in future their use will be extended significantly.
As a result of scientific and technological progress, the system of collecting information about the population and its relocation has been modernized, and is now implemented on the basis of existing information systems and their integration.
Thus, the basic system of registration of residents of Japan, established in 2015-2016, provides for the issuance of an individual number in order to implement administrative procedures for social security, taxation and response to natural disasters, both for Japanese citizens and for foreign citizens who are residents10. The central registry of Austria includes information about Austrian citizens and foreign citizens residing in the state11. In Estonia, the population register combines basic personal data on Estonian citizens, citizens of the European Union, registered
10 Act on the Use of Numbers to Identify a Specific Individual in the Administrative Procedure. URL: http://www.cao.go.jp/bangouseido/pdf/en3.pdf (accessed: 25.03.2019).
11 Bundesgesetzüber das polizeilicheMeldewesen. URL: https://www.ris.bka.gv.at/ GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10005799 (accessed: 25.03.2019).
as residents in Estonia, and foreigners who have been granted a residence permit or the right to reside in Estonia12.
In Russia in 2017, the Concept of Formation and Maintenance of a Unified Federal Information Resource containing information on the population of the Russian Federation was approved13. It is assumed that the federal population resource will be created primarily on the basis of information from the Unified State Register of Civil Status Records, and for foreign citizens and stateless persons - the information contained in the data systems of the Ministry of Internal Affairs of Russia, and will contain basic information about citizens of the Russian Federation and foreign citizens and stateless persons residing on the territory of the Russian Federation. Currently, the Ministry of Finance of Russia is developing a draft federal law on a unified federal data resource containing information about the population of the Russian Federation14.
The main instrument influencing the regulation of migration in Russia is the institution of citizenship. At the same time, despite the complexity of this institution, there is an obvious tendency to erode selective policies regarding citizenship. Only a few dozen people per year receive citizenship in a general order, the majority of foreign citizens are granted citizenship of the Russian Federation in a simplified order. Thus, the temporary residence permit and the residence permit following it as a step in obtaining Russian citizenship are practically not used. Meanwhile, the majority of countries receiving migrants, by means of a residence permit, try to reduce the risks associated with migration when they take foreign citizenship. In this regard, over time, increasing the influence of this tool in regulating migration relations in the country seems the most justifiable.
The predominant migration flow in the country remains external labour migration, whereby the corresponding block of legislative regulation is growing and developing at the fastest pace. In recent years, there has been a significant diversification of foreign labuor in Russia, which reflects the general global trend in regulating labour migration and is associated with its
12 Population Register. URL: https://www.siseministeerium.ee/en/population-register (accessed: 25.03.2019).
13 Order of the Government of the Russian Federation dated July 4, 2017 No. 1418-p "On Approval of the Concept of Forming and Maintaining a Unified Federal Information Resource Containing Information about the Population of the Russian Federation" (together with the "Action Plan ("road map") on the formation and maintenance of a single federal information resource containing information about the population of the Russian Federation") // Collection of Legislative Acts of the Russian Federation. 2017. No. 29. Art. 4390.
14 Draft federal law "On a single federal data resource containing information about the population of the Russian Federation" (ID 01/05/04-18/00079593). URL: http:// regulation.gov.ru (accessed: 25.03.2019).
socio-demographic, temporal and other characteristics. Differentiation in the regulation of foreign labour migration was expressed in the differentiation of legal statuses of foreign citizens engaged in labour activities in the Russian Federation, the emergence of new administrative and legal regimes of their stay in Russia, the use of various types of administrative procedures in the implementation of these regimes15.
Differentiation of the legal status of labour migrants as a whole makes it possible to more flexibly adjust the labour market in the country, to solve the issues of attracting the categories of migrants necessary for the development of the economy and social sphere. However, in the absence of clear criteria for such differentiation, as well as directions for the development of such differentiation determined at the level of strategic planning documents of the Russian Federation, such "fragmentation" often leads to excessive complication and cluttering up of the Russian migration legislation. So, currently there is no clear position of the legislator regarding the allocation of such categories of labor migrants as foreign specialists, foreign qualified specialists, foreign highly qualified specialists in the qualification level of these individuals, although there is no doubt that it is the qualification criterion that the selection of these categories of migrants should be based on.
At present, stimulation of inflow of external labour migrants by the state is aimed at, on the one hand, filling the missing labour reserve, and on the other hand, maintaining the balance of intercultural balance in the country and eliminating the possibility of risks associated with interethnic and interfaith conflicts. Such a variety of legislative measures are aimed at solving the first problem, contributing primarily to simplifying the procedure for attracting foreign citizens to work, such as:
- restriction of employment cases requiring permission to engage and use foreign workers (for employers) and work permits (for workers);
- extension of the possibility of working without obtaining in some cases permits for both the employer and the foreign citizen;
- more flexible use of the patent system of employment;
- the establishment of priority occupational qualification groups to determine the quota for allowing foreign nationals to enter the Russian Federation on the basis of a visa;
15 In particular, besides the already known categories (foreign workers, foreign citizens registered as an individual entrepreneur, foreign journalists, etc.), new categories of labor migrants have appeared, in particular highly qualified specialists; qualified specialists; invited to the Russian Federation as medical, pedagogical or scientific workers; persons studying full-time in the Russian Federation and engaged in labor activities in the Russian Federation, including during holidays or during free time from studies; foreign nationals sent to work in branches, representative offices and subsidiaries of foreign commercial organizations located on the territory of the Russian Federation, registered on the territories of the World Trade Organization member states, and others.
- the establishment of regional (for the territories of advanced socioeconomic development, innovation centers, the free port of Vladivostok, the international medical cluster, etc.) and other features (in connection with the 2018 FIFA World Cup Federation, the 2017 FIFA Confederations Cup, Olympic Winter Games and XI Paralympic Winter Games of 2014, the Asia-Pacific Economic Cooperation Forum in 2012) of attracting foreign labour etc.
As for the second aspect - the preservation of national security and the harmonization of interethnic relations - in this direction, law established measures to:
- differentiate the requirements for the comprehensive exam in Russian as a foreign language, the history of Russia and the basics of Russian legislation in the framework of socio-cultural adaptation and integration;
- consolidate the status of "native Russian speaker" for a foreign citizen;
- determine the grounds for restricting the entry of foreign citizens into the country, as well as the duration of these restrictions;
- strengthen control and toughen responsibility for violation of the regime of stay and employment on the territory of the Russian Federation for foreign citizens, etc.
It should be noted that the array of rules regulating the relations in the field of external labour migration and contained in the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" is steadily increasing. In addition to the rules related to the general regulation, the number of reference rules to special federal laws, providing for the regulation of the characteristics of inviting certain categories of labour migrants to work, is increasing. In this regard, in the long term, it is advisable to single out a separate chapter in the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation", which combines the rules that establish various features of the employment of certain categories of migrants.
Suppose another scenario of the development of legislation in this area - the specialization of migration legislation in certain areas and types of population migration objectively encourages passing of a separate federal law on the procedure for engaging and using foreign labour force in the Russian Federation. Its passing will allow to remove the excessive burden in the regulation implemented by the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" and, moreover, will help to more specifically address issues of external labour migration.
In the Concept of the State Migration Policy of the Russian Federation for 2019-2025 it is emphasized that the system of engaging temporary labour migrants and determining the need for foreign labour force needs further development. In particular, it is noted that it is necessary to improve legal, organizational and other mechanisms regulating and ensuring entry into the Russian Federation and stay on its territory of foreign citizens who are
able, due to their labour activities, knowledge and skills, to contribute to the economic, social and cultural development of Russia. In this regard, one of the promising trends in the development of migration legislation is the formation of mechanisms for the recruitment of foreign workers, differentiated in accordance with the requirements of Russian employers for professional qualifications. Today, the issues of organized recruitment of foreign workers are resolved only on the basis of bilateral interstate agreements16, the general legislative mechanism for the implementation of organized recruitment of foreign workers is not fully formed.
There are also no special regulations and programmes for occupation and seasonal labour migration, which is a type of labour migration of foreign citizens whose work depends on seasonal conditions and is carried out only during part of the year [Andrichenko, L.V. and Plyugina, I.V., 2019, pp. 131-140].
One of manifestations of a differentiated approach to inviting foreign citizens to Russia for work is the establishment of restrictions on certain types of activities within certain economic sectors. In particular, the Government of Russia may establish the permissible share of foreign workers employed in various sectors of the economy by economic entities operating in the territory of one or several Federation subjects, and throughout the country as well. Meanwhile, clear legislative criteria for such restrictions have not yet been formed.
Inviting qualified and highly qualified foreign specialists to the Russian Federation is currently based on the fact that the assessment of the competence and qualification level of foreign citizens invited as highly qualified specialists is carried out exclusively by the employer and the customer ordering the work (services). In this case, the legislator establishes for the employer only one condition - the level of the specialist's salary. However, in modern conditions, this level17 no longer reflects the actually existing payment system. This creates the risk of an influx into the
16 The Agreement between the Government of the Russian Federation and the Government of the Republic of Uzbekistan on the organized recruitment and involvement of citizens of the Republic of Uzbekistan for temporary employment in the territory of the Russian Federation, concluded in Moscow on April 5, 2017. (Collection of Legislative Acts of the Russian Federation. 2018. No. 6. Art. 802). The Russian Federation ratified this document - see: Federal Law of 5 December 2017 No. 366 "On the ratification of the Agreement between the Government of the Russian Federation and the Government of the Republic of Uzbekistan on organized recruitment and involvement of citizens of the Republic of Uzbekistan to carry out temporary labor activities in the Russian Federation" (Collection of Legislative Acts of the Russian Federation. 2017. No. 50 (p. 3). Art. 7537).
17 For example, not less than fifty-eight thousand five hundred rubles per one calendar month - for foreign citizens invited to work by residents of the technology-innovative special economic zone.
country people with low qualifications under the guise of highly qualified specialists, when a simplified procedure for their engaging is beneficial for the employer. At the same time, the use of a positively proven approach in the practice of foreign countries based on the establishment of requirements for the availability of educational documents, professional experience, etc., requires additional organizational, legal and other efforts from the state.
The problem of assessing the effectiveness of the use of foreign labour force, which is necessary to determine the annual need for such workers, remains unresolved. It requires the establishment of unified approaches to monitoring the labour market of foreign workers in the constituent entities of the Russian Federation, which can be implemented at the federal level. An obligatory condition for this is the formation and maintenance of a complete register of foreign citizens who arrived in the Russian Federation in a visafree manner and carry out labour activities on the basis of a patent, as well as the establishment of compulsory obligation for a foreign worker to carry out labor activity only in accordance with the profession (specialty, type of labour activity, position) indicated in the patent they acquired. Today, such correspondence is established only in relation to work performed on the basis of a work permit. This will ensure the protection of the domestic labour market - as is well known, this goal is considered determining in the updated Concept of the state migration policy of the Russian Federation for 2019-2025.
Encouraging the flow of talented foreign young people into the Russian Federation, who have professions and specialties which are in great demand on the Russian labour market, requires consolidating at the legislative level preferences in obtaining a residence permit for graduates of Russian vocational education institutions from among foreign citizens who have acquired a profession (specialty) demanded in the labour market.
A significant migration flow is the voluntary resettlement of compatriots from abroad to Russia. However, today the status of such persons, as well as the complex of adaptation and integration services provided for them, are regulated mainly at the level of the state programme to assist the voluntary resettlement of compatriots living abroad18 to the Russian Federation, as well as relevant regional programmes19. Although the programme although program regulation has certain advantages compared with other methods of regulation, including law, due to the possibility of providing an integrated
18 Initially, the state program was designed for the period from 2007 to 2012. (see: Decree of the President of the Russian Federation of June 22, 2006 No. 637 "On Measures to Assist Voluntary Resettlement of Compatriots Living Abroad to the Russian Federation"). Subsequently, by Decree of the President of the Russian Federation of September 14, 2012 No. 1289, a new version of the State Program was approved, which came into force on December 31, 2012, and became open-ended.
19 As of January 1, 2018, the resettlement of compatriots to Russia under the conditions of the State Program was carried out in 69 subjects of the Russian Federation
approach to solving the problems of facilitating voluntary resettlement of compatriots by combining legal, financial, organizational, informational resources (ensuring the resolution of issues of coordination of activities of the relevant authorities), it cannot replace other means of regulation, since its possibilities are limited in terms of establishing the legal status of subjects of the legal entities concerned, where prerogative is given to federal law.
Unfortunately, the legislation facilitating the resettlement process played a secondary role: it was adjusted to follow the requisites of the state programme. However, such an approach, which is fully justified at the initial stage, when the first draft of the state programme was in operation, is, at the present stage, when the final version of the state programme has already passed into law, is leading to a decrease in the level of state guarantees to ensure the status of participants in the state programme.
Legislation on forced migration remains a stable block of migration legislation20. Its significant changes in recent years have been mainly associated with the regulation of forced mass resettlement of forced migrants from the Ukraine in 2014, and they mainly concerned by-law regulation. It should be taken into account that the development of this legislation is subject to "pressure" on the part of international law, since this area is related to international humanitarian law. Nevertheless, the development of this legislation falls behind international and foreign standards; consequently, it requires a certain modernization. Prospects for the development of this legislation are quite obvious.
Thus, the existing legislation in the area in question determines, in a very limited way relations associated with the so-called special needs of certain categories of refugees and asylum-seekers. These include, in particular, such categories as pregnant women; single parents with minors; separated children; people suffering from serious illnesses or persons with mental disorders; victims of trafficking, torture, other types of violence, etc. There are no definitions of the people mentioned that allow settling the question of applying a special procedure for resolving issues of granting them an appropriate status, securing additional rights for them, including assisting and customised care, taking into account their age, gender, their condition and their needs. We believe that the development of legislation in this direction would be evidence of its further response to human needs.
(URL: https://xn--b1aew.xn--p1ai/mvd/structure1/Glavnie_upravlenija/guvm/ compatriots/monitoring (accessed: 25.03.2019).
20 We are talking about the Federal Law of February 19, 1993 No. 4528-I "On Refugees" and the Law of the Russian Federation of February 19, 1993 No. 4530-I "On Forced Migrants". Although not all categories of forced migrants have special regulation in the form of separate federal laws. So, there is practically no special regulation for persons who are environmental refugees; persons who are forced migrants as a result of economic causes, natural disasters, and so on.
Obviously not enough attention is paid by Russian legislation to the issues of temporary asylum, which does not correspond to the importance of this institution in the unified system of measures to ensure the protection of forced migrants. Thus, at present legislature does not regulate the institution of temporary protection, which considers the group, mass and emergency nature of arriving in the country of asylum and is applied to groups of people (foreign citizens and stateless persons), forced to leave the country of their former residence on the same as the granting of refugee status, and at the same time makes it inappropriate to individually consider asylum applications.
The status of forced migrants is defined in the legislation of the Russian Federation in a rather limited manner. At present, they include citizens of the Russian Federation, who for the same reasons as refugees were forced to leave their homes and move to another place within the territory of Russia. Meanwhile, the term "internally displaced persons" which is used internationally, is similar to the term "forced migrant", and is extended to a wider circle of people, who were forced to leave their homes or places of usual residence, as a result of natural or man-made disasters21. This gives grounds for raising the question of the possibility of extending the concept of "forced migrant" to the level of protection afforded to internally displaced persons in future. This approach more accurately reflects the essence of the subjects of forced migration within the territory of the country. In addition, it already has a certain legal basis - the Federal Law of February 12, 1998 No. 28-FZ "On Civil Defence"22 establishes the issues of evacuation of persons during military conflicts, as well as in the event of a natural or man-made accident, to safe areas, although most of these issues are regulated at a sub-legal level, which is unjustified. Ultimately, further understanding of the concept of "asylum" and its extension to various types of forced migration (political asylum, temporary asylum, forced relocation, etc.) is necessary, which will consolidate legislation on forced migration and unify (where possible) the procedures for granting appropriate status.
The field of education forms a special type of migration - academic or educational migration, which is the third largest migration flow in the country [Sal'nikov, V.P. and Bryleva, E.A., 2018, pp. 25-28]. The Russian Federation is among the top ten world leaders in the number of foreign students, and the corresponding quantitative indicator shows a steady growth23. At the
See: Guiding Principles on Internal Displacement, Non-binding for States, but widely internationally recognized. These Guidelines, while not binding on States, are nonetheless widely recognized internationally (UN DOC. E/CN.4/1999/79. P. 5).
Collection of Legislative Acts of the Russian Federation. 1998. No. 7. Art. 799.
If in 2016 the total number of foreign students enrolled in educational programs of higher education in state and municipal organizations amounted to 175,412 people,
21
22
same time, the special focus of the legislature on educational migration was only in the 2010s - in this period special programmes and projects began to be implemented, with the aim of increasing the attractiveness of Russian educational organizations for potential students24, additional measures began to be taken directly by the educational organizations themselves (for example, to develop special adaptation programmes for foreign students). Of course, the determining factor in the choice of the country of education for foreign students is not so much the conditions of entry and stay, as provided for by migration legislation, although they play their part, but the quality of education received, its competitiveness and the possibility of further employment, in foreign countries as well. Possession of a competitive advantage enables the opening of new professional horizons leading to the formation of migration flows associated with obtaining a vocational education [Shpet, E.N., 2015, p. 35].
The development of educational migration is based on both national and international legal regulators. Key problems related to the recognition of education, qualifications and degrees are resolved and special conditions for obtaining education are provided25 through international agreements. At the same time, the movement towards setting up a single (common) educational space within the framework of interstate associations with a high degree of integration, is growing26.
In Russia, the target has been set to increase by 2024 at least twice the number of foreign citizens studying in educational institutions of higher education and scientific organizations, as well as to implement a
a year later this figure increased to 198,295 people; it is noteworthy that ten years ago, as of 2005, it was 2.5 times less - 78,139 people. (Russia in numbers. 2018: a short statistical digest / Rosstat. M., 2018. P. 142).
24 In particular, since 2013, the project of the Ministry of Education and Science of Russia "5-100" has been implemented, aimed at improving the competitiveness of leading Russian universities among the world's leading scientific and educational centers, in which 21 universities are currently participating (The official website of the project "5-100": URL: https://www.5top100.ru); Since 2017, a long-term priority project "Developing the Export Potential of the Russian Education System" has been implemented, which includes improving the regulatory framework governing admission and training of foreigners, recognition of documents on foreign education, procedures for entry, exit and stay of foreign teachers, as well as taxation of educational activities in the framework of international cooperation (the project is expected to have been completed by November 2025).
25 See, for example: Convention on the Recognition of Studies, Higher Education Diplomas and Degrees in the States of the European Region, concluded in Paris on December 21, 1979; Declaration on the creation of a pan-European higher education area (Bologna Declaration), adopted in the city of Bologna on June 19, 1999.
26 See, for example: Agreement on cooperation in the formation of a single (common) educational space of the Commonwealth of Independent States (concluded in Moscow on January 17, 1997) // International Treaty Bulletin. 2002. No. 7. P. 3-7.
set of measures for the employment of the best of them27. This takes into account the need to take additional measures, including legal ones, aimed at encouraging educational migration. These include simplifying the visa regime for foreign students, changing the working conditions in Russia for certain categories of students, and extending the possibilities of more easily acquiring Russian citizenship.
In particular, it would be acceptable to establish a longer validity period of an ordinary study visa, which would imply an extension procedure, for example, once every two or three years28. As an option, after a year of study, it could be possible to extend the total validity period of the visa for the entire remaining period of study. In addition, it would be feasible to extend the permitted length of stay in Russia for graduates of educational organizations, after completing study, for job search.
The possibility of working in the country of study is one of the determining criteria for potential students when choosing a place of gaining an education. In foreign countries, such as Germany, Finland, Australia, Canada, foreign students are given an opportunity to work in their free time without additional permits. It is also possible to simplify the conditions for obtaining Russian citizenship by foreign citizens who have completed full-time study in the Russian Federation: for example, to remove the requirement of such foreign citizens to prove their knowledge of the Russian language (if the educational programme was not carried out in a foreign language); to reduce the period of residence required for citizenship by part of the period of study.
Due to the specificity of social relations in the field of migration, which presumes, as a rule, the existence of public interests, and also taking into consideration the degree of danger to the public of most offences related to migration, the protective potential of administrative and legal measures
27 Decree of the President of the Russian Federation of May 7, 2018 No. 204 "On the national goals and strategic objectives of the development of the Russian Federation for the period up to 2024" // Collection of Legislative Acts of the Russian Federation. 2018. No. 20. Art. 2817.
28 In 2017, the Ministry of Education and Science of Russia prepared a draft federal law "On Amendments to Article 25.6 of the Federal Law "On the Procedure for Exiting the Russian Federation and Entering the Russian Federation" (project ID 01/05/0617/00067561), which provided for the issuance of an ordinary student visa for a period of up to one year to a foreign citizen entering the Russian Federation for the purpose of studying in an organization conducting educational activities, and a foreign citizen arriving in the Russian Federation for the purpose of studying and entering an educational organization for receiving full-time education according to the basic vocational education program, which has state accreditation, it was proposed to issue an ordinary study visa as short and extend it for the remaining period of study, but not more than three years for each extension. Currently, this legislative initiative has not been realized, although its implementation seems possible.
is mainly used to ensure the implementation of migration legislation29. Along with the measures of responsibility established by administrative and criminal legislation, there are special measures of state sanction provided for by migration legislation - deportation and readmission. Despite the fact that deportation and readmission are not forms of punishment from the legal point of view, the consequences of their use are often identical and sometimes even more severe than those prescribed for administrative offences and crimes, which justifiably has caused criticism. In accordance with the international agreement on readmission30, this procedure may officially last for more than six months, and during this period the person to be readmitted may be held under the custody of the Ministry of Internal Affairs of Russia, or its territorial body. In such instances, we can talk about a certain "blurring" of the boundaries between the measures of responsibility and the measures of state sanction used in order to prevent and stop illegal migration. In other countries, a similar phenomenon has been noticed in the past decade (it was called "crimigration"): a number of researchers pointed out the merging of criminal and immigration law norms, and the blurred boundaries between traditional criminal and immigration legislation [Stumpf, J., 2006; Hernández, G. and Cuauhtémoc, C., 2015; Mendoza, J.J., 2018].
The dynamics of the development of criminal and administrative legislation of the Russian Federation makes it possible to ascertain the increase in the number of relevant administrative over the past decade, the emergence of new related to migration; at the same time punishments provided for in the framework of a number of already existing offences were toughened31. On the one hand, this is due to the increase in the general
29 So, currently, Chapter 18 of the Code of Administrative Offenses of the Russian Federation, which establishes administrative offenses in the protection of the State Border of the Russian Federation and ensuring the stay of foreign citizens or stateless persons on the territory of the Russian Federation, includes 20 administrative offenses, while The Criminal Code of the Russian Federation contains four offences directly connected with the sphere of migration.
30 See, for example: Agreement between the Government of the Russian Federation and the Council of Ministers of Bosnia and Herzegovina on readmission (concluded in Moscow on June 22, 2015); Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on readmission (concluded in Minsk on November 15, 2013).
31 Thus, over the past few years, a number of new administrative offenses have been introduced, in particular, Art. 18.19 "Violation of the rules for notifying the authorized state bodies about training or for termination of training of foreign citizens and stateless persons in educational organizations", liability for citizens to live at the place of residence or in a residential area without registration was established, for violating the rules of registering citizens at the place of residence in a residential area (Art. 19.15.2); Art. 18.20 "Violation by a foreign citizen or a stateless person of
array of regulatory norms of the Russian migration legislation, which, in turn, requires the adoption of protective rules; on the other hand, the toughening the responsibility for offences in the field of migration is an appropriate measure taken in response to the worsened threat of illegal migration, and the emergence of new forms of illegal activity.
In general, this tendency is characteristic of many states, in particular, as the study of the practice of criminal prosecution and punishment of immigration crimes in leading common law countries shows, punitive policies for these types of offences have obvious tendencies to toughen [Artemov, V.Yu., Vlasov, I.S., Golovanova N.A., et al., 2012, p. 208]. However, it should still be stipulated that this applies mainly to the receiving states; donor countries, as a rule, have softer national legislation in this regard. This multi-vector nature can be observed even in the example of the Commonwealth of Independent States, in spite of the fact that in 2009, Recommendations on the Harmonization of the National Legislation of the member states of the Commonwealth of Independent States in the fight against illegal migration were adopted (on December 3d, 2009 in St. Petersburg), which stipulate the need to toughen the responsibility for committing immigration offences.
At present, there is a need for greater "flexibility" in the application of measures of responsibility, involving consideration of the circumstances and conditions in which an offense was committed, in ascertaining and balancing individual rights and public interest. However, this is not always possible within existing legal boundaries. An example here is Art. 18.10 of the Code of Administrative offences of the Russian Federation, which establishes responsibility for the illegal activity of a foreign citizen or stateless person in the Russian Federation: committing any act, under Part 1 of Art. 18.10, in Moscow or St. Petersburg or in the Moscow or Leningrad region, entails mandatory administrative deportation from the country. The literal adherence to this provision does not allow discrete powers and makes it impossible to take into account the specific situation.
the term for applying for a patent"; responsibility for many offenses in the field of migration was introduced, including for violation of the border regime in the border zone (Art. 18.2 of the Administrative Code of the Russian Federation), for violation of the border regime in the territorial sea and in the internal sea waters of Russia (Art. 18.3), for violation by a foreign citizen or a stateless person of the rules of entry or stay (residence) regime in the country (Art. 18.8), for illegal labor activity by a foreign citizen or stateless person (Art. 18.10), for illegal involvement a foreign national or stateless in labor activity (v. 18.15), etc. The Criminal Code of the Russian Federation was supplemented in 2013 by Art. 322.2 "Fictitious registration of a citizen of the Russian Federation at the place of residence or place of dwelling in a residential area in the Russian Federation and fictitious registration of a foreign citizen or stateless person at the place of residence in a residential area in the Russian Federation" and Art. 322.3 "Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation".
It can be assumed that in the immediate future the law will maintain a fairly rigid approach to regulating responsibility for violating immigration laws, the number of offences will continue to increase, although, most likely, not as sharply as it has been doing during the past five years. Also there is a possibility for mitigating punishment for certain types of offences, the liberalization of certain measures of state sanction; however, this will be primarily due to the optimization of existing regulation, its correlation with modern standards of protection of human and civil rights and freedoms.
Discussion and Conclusion
In conclusion, it should be noted that such a substantial extension of Russian migration legislation served as the basis for raising the question of its systematization. Systematization of legislation is used primarily as an effective means of providing legal entities with the necessary regulatory and legal information; the streamlining of regulatory legal material, including its categorical and conceptual apparatus - all of this plays a mobilization role in the lawmaking process, being the key to the sustainability of the existing legal order and the stability of social relations [Kudeshkina, O.B., 2002, p. 3]. The need to systematize immigration legislation has long been an issue. There is a need for a high-quality processing of immigration legislation which should be based on new approaches to its construction and legal and technical design [Habrieva, T.Ya., Andrichenko, L.V. and Plyugina, I.V., 2010, p. 14].
The greatest difficulty is the question of what form should be used. On this occasion, different points of view are expressed; in particular, the idea of the expediency of adopting a migration code is widespread in the literature [Vasiliev, A.M. and Kopchenko, I.E., 2017, pp. 3-6; Zherebtsov, A.N. and Malyshev, E.A., 2018, p. 34; Kozlov, V.F., 2018, p. 32; Semonova, A.V., 2016, p. 42], some researchers admit the possibility of adopting a federal immigration law [Kapinus, O.S., 2016, p. 31], a federal law on combating illegal migration [Kozlov, V.F. and Luk'yanov, A.S., 2015, pp. 24-25] and others. There is also a conservative approach, in which it is proposed to leave everything unchanged and concentrate on improving the quality of the content of already existing regulatory legal acts and overcoming their internal contradictions. In any case, it is obvious that long preliminary work will be required to overcome the existing problems and contradictions in the legal regulation of migration, which will be costly and time consuming. In addition, it is impossible not to note the methodological complexity of the resolution of such heterogeneous social relations in the conditions of the need for their fairly frequent changes. At the same time, the systematization of migration legislation would help to improve the efficiency of state legal regulation of the migration sphere, streamline the
interaction of participants in migration relations, more clearly separate the powers of public authorities at various territorial levels, overcome existing legal gaps and conflicts.
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Information about the authors / Информация об авторах:
Lyudmila V. Andrichenko, Head of Public Law Research Centre, Institute of Legislation and Comparative Law under the Government of the Russian Federation (34 B. Cheryomushkinskaya St., Moscow, 117218, Russia), Dr.
Sci. (Law), Professor [Андриченко Людмила Васильевна, заведующий центром публично-правовых исследований ФГНИУ «Институт законодательства и сравнительного правоведения при Правительстве Российской Федерации» (117218, Россия, Москва, ул. Б. Черёмушкинская, д. 34), доктор юридических наук, профессор]. E-mail: [email protected]
Inna V. Plyugina, Leading Researcher of Public Law Research Centre, Institute of Legislation and Comparative Law under the Government of the Russian Federation (34 B. Cheryomushkinskaya St., Moscow, 117218, Russia), Cand. Sci. (Law) [Плюгина Инна Владимировна, ведущий научный сотрудник центра публично-правовых исследований ФГНИУ «Институт законодательства и сравнительного правоведения при Правительстве Российской Федерации» (117218, Россия, Москва, ул. Б. Черёмушкинская, д. 34), кандидат юридических наук]. E-mail: [email protected]
