Illegal Migration in Russia

Illegal migration is one of the most serious challenges the world currently faces, and counteracting it has become a key priority for migration authorities. Illegal migrants are themselves harmed by existing in an unregulated space, forcing them to minimize their contact with government authorities, leaves them unprotected in relations with employers and employment intermediaries, in some cases meaning that migrants become modern-day slaves.

Illegal migration is one of the most serious challenges the world currently faces, and counteracting it has become a key priority for migration authorities.

Illegal migrants are themselves harmed by existing in an unregulated space, forcing them to minimize their contact with government authorities, leaves them unprotected in relations with employers and employment intermediaries, in some cases meaning that migrants become modern-day slaves.

Illegal migrants seek to minimize their contact with the local population. As a result, ethnic ghettoes are created, often fuelling criminality and extremism. The local population responds with xenophobia, which is transformed into bitter ethnic conflict and tensions in the broader, Russian, community.

There is a clear need to combat illegal migration because is linked with serious and organized crime such as terrorism, illegal arms and drug trafficking, slavery and human trafficking. Naturally, illegal migrants are also tax evaders.

Host countries typically react in two different ways to overcome the negative effects of this phenomenon. The first involves offering appropriate opportunities to legalize illegal migrants (via individual categories). The second is to toughen the procedures governing entry to and residence in the country, also accentuating the migration bodies’ enforcement functions. Those two approaches are often politically determined and aimed at getting support from certain social groups (as is particularly apparent in election campaigns in France and the United States).

It should be noted that migration (including illegal migration) in Russia has specific features, particularly because Russia is the most economically developed of the former-Soviet republics and, consequently, it is the largest destination for migrants from CIS member states. At the same time, the Russian Federation is not only a migrant destination, but is also a country of origin and transit country for migrants.

According to information from the state migration record system (hereinafter – GISMU), about 14 million foreign nationals come to Russia each year. About 80 percent of them are from CIS member states. According to preliminary data, in 2011, 56 percent of foreigners from the CIS members were entering Russia for the first time.

More than 10 million foreign nationals are currently resident in the Russian Federation. Of this, 42 percent come for purposes unrelated to employment or work, while 17 percent are legally employed by a work permit or patent.

Information on the GISMU database indicates that 21 percent of foreigners have stayed longer than the time allowed in law. However, they continue to remain in the country, working illegally, and consequently, evading taxation.

It is important to stress that those people entered Russia legally, consequently, migrants in Russia commit two types of offense terms of migration law violation: exceeding the legally established time of stay and ignoring the established procedure governing foreigners’ labor activity.

There are a number of ways that citizens from CIS member-states violate the declared purpose of entry during their stay in Russia. Often, on the migration card, they indicate their purpose of entry to the country as a “private visit” or “tourism,” while in fact they are seeking employment.

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Overall, labor migrants do not account for more than 7 percent of the country’s total workforce. According to the Federal State Statistics Service, the economically active population numbers 75,440,000 people, with 69, 804,000 employed in the national economy.

An analysis of GISMU data suggests that the volume of illegal migration into Russia is undoubtedly large, though it is not comparable to the figures recorded in the Unites States, for example, where illegal migrants number some 11-12 million people.

However, those relatively small figures do not mean that Russia does not need to counter illegal migration. As mentioned above, migrants’ unregulated legal status has a negative impact on the migrants themselves, as well as on the host community.

Naturally, one should not disregard the fact that there are certain interested parties in Russia that obstruct the migrant’s acquisition of legitimate legal status. Primarily, these are the employers interested in exploiting cheap illegal labor, and a variety of intermediaries who, in many instances, are the labor migrants’ fellow compatriots, and are trusted by them due to their shared language and ethnic heritage. These “fellow compatriots” take advantage of the labor migrants’ poor command of the Russian language, their ignorance of the Russian legislation and their overwhelming trust: essentially organizing illegal migration.

It is no coincidence that the amendments introduced into the Code of Administrative Offenses in 2007 were aimed at placing the burden of responsibility firmly on the employers’ shoulders (the largest possible fine for illegally employing a foreign national is RUB 800,000 for a legal entity).

Over nine months of the year 2012, the total number of entries made by the Russian Federal Migration Service’s territorial bodies regarding administrative offenses related to the rules of staying and working in the Russian Federation numbered nearly 533,500 (in 2011 this figure was 650,000) [1].

At the same time, over nine months of the year 2012, FMS officers drew up 109,155 protocols (nearly 145,000 in 2011) regarding foreign citizens (Article 18.10 of the Administrative Code) and nearly 89,000 regarding their employers (nearly 118,000 in 2011).

The Federal Migration Service was authorized to conduct administrative investigations, including the necessary expert examinations and other procedural measures, making it easier for them to enforce these regulations and punish the guilty parties. Until this came into force, FMS officers had to observe time limits disallowing the accurate identification of the offender responsible, for instance, in detecting violations of the regulations governing employing foreign workers in construction – with a whole system of contractors and subcontractors.

In 2005, Russian administrative law outlined punishment such as the administrative suspension of activity, and in 2007 this was applied to employers violating the rules of hiring and employing foreign workers.

This punishment is applied by judicial decision for a period of up to 90 days (in over eight months of 2012, nearly 7,000 such decisions were made, and in 2011 this figure was nearly 12,400). However, the legislation does not give a minimum period of suspension, therefore, if the court should rule to suspend work for three days, this penalty would be immaterial for an economic entity. This provision of the Code of Administrative Offenses of the Russian Federation clearly requires further adjustment.

In 2004, Russian criminal law was amended, adding the concept of responsibility for organizing illegal migration (Article 3221 of the Criminal Code of the Russian Federation).

Based on the reports from the Russian Federal Migration Service’s territorial bodies, last year law enforcement agencies instituted 385 legal proceedings on the corpus delicti provided for the above article, 101 people were held liable (over eight months of 2012, 259 criminal cases were opened, and 85 suspects were held criminally liable). Practice proves that this type of crime is a widely spread offense.

Illegal migration is often related to the production and use of forged documents. FMS territorial bodies often come across such cases in spot-checks to combat illegal migration. People forge invitations, visas, migration cards, work permits and other documents required for entry into the Russian Federation and for residence, as well as those documents needed for legal employment in the country.

Last year, law enforcement agencies identified about 7,120 people carrying forged documents, opened over 2,000 criminal cases on material elements of offenses under Article 327 of the Russian Criminal Code (the forgery, manufacture or sale of falsified documents, government awards, stamps, seals, and forms), and about 830 people were prosecuted. Over eight months of 2012, about 4,800 people were found to have forged ID, over 1,000 criminal cases were launched, and about 340 people were prosecuted. As a proportion of the total number of crimes committed by foreign citizens in the Russian Federation, forging documents accounts for about 30 percent.

In his report to the 60th session of the UN General Assembly, (which incorporated a high-level dialog on migration) the UN Secretary General noted that one reasons for illegal migration is bureaucratic procedures.

In Russia, one such procedure was foreign citizens’ registration at their place of residence, something that required numerous endorsements and was largely unworkable.

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In 2007, Russia took a tangible step forwards toward the simplification of migration procedures: lawmakers adopted a law substituting the licensing system of foreign citizens’ registration with the notification of migration records (Federal Law dated July 18, 2006: 109-FZ “On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation”) and amendments to the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation,” which simplified the procedure for acquiring a work permit and temporary residence permit for foreign citizens who come to the Russian Federation under a visa-free procedure (citizens of CIS member states). For the first time, documents could be presented without physical appearance being required, i.e. migration registration documents could be delivered by mail. Those amendments aided the collection of objective data on foreign nationals in Russia, and facilitated the legalization of a significant number of foreign workers.

One measure to counter illegal migration is returning foreign citizens and stateless persons who have violated migration rules to the country of their origin (or permanent residence). Russian legislation provides for forms of compulsory return including: administrative expulsion, deportation and readmission. The terms “expulsion” and “deportation” are often commonly used as synonyms, though the essence of those two procedures is different.

Administrative expulsion is a form of administrative responsibility applied by judicial decision. It can be applied as enforced expulsion or independent controlled departure from the Russian territory.

Under Article 2 of the Federal Law dated July 25, 2002: 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation,” deportation is the enforced expulsion of a foreign national from the Russian Federation in case of the loss or expiry of the legal grounds of his/her further stay (sojourn) in the country. The decision on deportation is taken by the Head of the Federal Migration Service or by heads of territorial bodies of the Russian FMS.

The law also allows deportation to be applied when a foreign citizen has failed to leave Russian Federation territory independently under the above circumstances, or refused to comply voluntarily with the relevant decision taken by the authorized executive bodies (currently the Government has authorized 11 federal executive bodies to adopt such decisions: the Russian Ministry of Internal Affairs, Federal Security Service [FSB], Ministry of Justice, and the Federal Financial Monitoring Service, among others). Deportation is, therefore, a protective measure and is applied much more rarely than administrative expulsion. For example, in 2011, nearly 28,000 foreigners were subject to expulsion, while only 656 people were deported. Over eight months of 2012 the figures were 18,260 and 515, respectively.

A relatively new form of enforced return to the Russian legislation is readmission. The procedure was launched on June 1, 2007 when the Agreement between the Russian Federation and the European Community on readmission came into force.

Under the above agreement, “readmission” means the transfer by the requesting state and admission by the requested state of persons (nationals of the requested state, third-country nationals or stateless persons) who have been identified as illegally entering, being present in or residing in the requesting state, in accordance with the provisions of this Agreement. Identical definitions of this notion (with minor variations) are found in other agreements that the Russian Federation has concluded with foreign states regarding readmission.

The readmission dialog involves 24 member-states of the European Union. The Federal Migration Service undertakes significant efforts to prepare executive protocols with each member state that is party to this agreement. To date, 21 such protocols have been signed at inter-government level, and three more are ready to be signed.

Since the Agreement on readmission with the EU has come into effect, Russia has accepted 1318 Russian citizens who have violated EU countries’ immigration rules. The total number of requests was nearly 7,500.

Russia readmitted 359 nationals from European countries that are not covered by the Russia-EU readmission agreement (Russia signed respective bilateral agreements with Denmark, Norway and Switzerland).

Since 2009, Russia has forwarded 321 applications on readmission to Uzbekistan, Vietnam, Germany, Latvia and a number of other states (10 in total). A total of 244 foreign nationals were transferred via this readmission.

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Committing administrative offenses (not only in the field of migration) entails a ban on the foreigner’s entry to the Russian Federation. Under Article 26 of the Federal Law dated August 15, 1996: 114-FZ “On the Procedure of Entry into the Russian Federation and Exit from the Russian Federation,” foreign nationals can be denied entry to the Russian Federation if, over the period of three years, they have been held administratively accountable under Russian law for administrative offenses committed within the Russian Federation – with the exception of instances when federal law allows a foreign national or a stateless person to be banned from entering the country after committing a single administrative offense in Russia.

If during their previous time in the Russian Federation, a foreign citizen or a stateless person was subject to administrative expulsion from our country, was deported or transferred to a foreign country under an international agreement by Russia on readmission, they will be denied entry for a period of five years from the date of administrative expulsion, deportation or transfer to a foreign state under the relevant agreement by the Russian Federation on readmission (Article 27 of the Federal Law dated August 15, 1996: 114-FZ “On the Procedure of Entry into the Russian Federation and Exit from the Russian Federation”).

The fact that a foreign national was subject to administrative expulsion or deportation is grounds not to issue a temporary residence permit, residence permit, or work permit.

If foreign citizens apply for Russian citizenship, or the restoration of Russian citizenship, and if, during five years prior to the application date, they were expelled from the Russian Federation under federal law, their applications for citizenship or its restoration shall be denied.

European countries’ experiences with the voluntary return of illegal immigrants deserve attention with a view to their potential application in Russia. In 2008, the EU endorsed the Directive 2008/115/EU on common standards and procedures in member states for the return of third-country nationals who are illegally resident.

The directive covers third-country nationals and is focused on prioritizing voluntary return over enforced return. It gives a term of between seven and 13 days for the illegal migrants to voluntarily leave the country. At the same time, in some cases, the decision to return is accompanied by an entry ban for a period of up to five years, if the commitment to return was neglected, or a term of voluntary return was not specified.

The Russian FMS took its first steps in this direction in work on the draft law for voluntary departure from Russian territory within 30 days for foreign nationals whose period of legal stay has expired. In case a foreigner fails to do so, the draft law provides for an entry ban for up to three years.

The Russian Federation has established a comprehensive regulatory base to combat illegal migration. Its most important components are international multilateral and bilateral agreements on the competent authorities’ cooperation in combating illegal migration. Effectively countering the trans-border element of this phenomenon is impossible without international interaction. For instance, the readmission mechanism is entirely impracticable without an international agreement; the same applies to blocking the routes of illegal migration, and so forth.

Naturally, comprehensive international treaties play a key role. On June 25, 2004 Russia became part of the Protocol to Prevent, Suppress and Punish Trafficking of Persons supplementing the UN Convention against Transnational Organized Crime adopted on November 15, 2000, at the 62nd plenary session of the 55th session of the UN General Assembly in New York (in order to implement it the Russian Criminal Code was supplemented by Article 3221).

Of all the international agreements at regional level, the Agreement of the CIS member states on cooperation against illegal migration plays a particularly important role. Bilateral agreements with Armenia, Latvia, Uzbekistan, and other countries are also crucial.

Agreements on information-sharing between the states’ relevant bodies also play an important role in combating illegal migration. For instance, Russia signed an agreement with Belarus on cross-border cooperation between the relevant regional authorities.

Special ministerial bodies created under various different international organizations are also effective. They include the Commission on countering illegal migration among CIS member states, Coordination Council on combating illegal migration of the Collective Security Treaty Organization, Russia-Belarus inter-government ministerial working group for formulating recommendations on coordinated efforts against illegal migration and other, related, criminal activities. This problem is also a permanent item on the agenda of the CIS heads of migration agency Council that coordinates efforts of other CIS executive authorities in the sphere of migration.

Since 2006, Russia has permanently endorsed and implemented cooperation programs involving CIS member states in fighting illegal migration. The recent program was endorsed by a decision of the CIS Heads of State Council on September 2, 2011 and is to be effective through the period 2012-2014.

The program was developed by the Joint Commission of the members of the Agreement on the CIS members’ cooperation in fighting illegal migration dated March 6, 1998. The program covers measures to improve the international legal foundations of cooperation, organization and also practical measures, and information, scientific, HR, logistical and financial support.

Joint field and preventive measures held annually under CSTO Coordination Council framework bear tangible results. Russia’s FMS, Ministry of Internal Affairs, Federal Security Service (FSB) and Federal Financial Monitoring Service were all involved on the Russian side. During operations, law enforcers exposed crimes in organizing illegal migration, illegal turnover of drugs and psychotropic substances, illegal turnover of arms and border crossing.

The guidelines for the development of international cooperation in combating illegal migration are set out in the Migration Policy Concept (endorsed by the Russian President on June 13, 2012.

The following tasks are directly related to migration:

• developing a common approach to the readmission of the third-country nationals (including the sides’ financial commitments) under the framework of international organizations;
• signing international agreements with foreign states’ competent bodies on cooperation in fighting illegal migration;
• signing international agreements on the reception, return and transit of people illegally staying in the Russian Federation and territories of foreign states (on readmission).

As can be seen from the above, many are already being implemented day-to-day. Developing integration processes makes us design joint efforts to counter illegal migration from the third countries across the Customs Union space. The respective agreement was signed in November 2011. Deeper integration would widen the forms of interaction between the competent bodies (essentially, this is limited to information exchange at present). A unified information system should form the foundation of the joint struggle against illegal migration of third-country nationals into countries that are members of these integration associations. The CIS Agreement on establishing a unified system to register third-country nationals and stateless persons entering CIS member states that was signed in St. Petersburg on October 18, 2011 forms the legal cornerstone of practical implementation.

The state migration policy Concept (draft document) for the period through 2025 incorporates a section on the guiding principles of combating illegal migration:

• improving the legal base of countermeasures against illegal migration;
• upgrading the penalties for violating Russian migration law;
• establishing and improving the immigration control system by introducing this notion into Russian law, identifying the competent bodies and drawing up a list of respective powers;
• improving the system of state control over the entry and stay of foreign citizens in Russia;
• counteracting the organization of illegal migration routes, including higher requirements for passport, visa and other ID documents;
• creating the infrastructure needed to implement readmission procedures, creating special establishments for the custody of foreign nationals and stateless persons (subject to administrative expulsion or deportation) in the Russian Federation;
• streamlining inter-ministerial cooperation, including information-sharing at national levels, coordination with foreign states’ competent bodies on countering illegal migration;
• developing and endorsing programs of countermeasures against illegal migration, conducting joint inter-state measures (both preventive and in the field);
• enhancing information and educational efforts among citizens and employers aimed at preventing the violation of Russian migration law.

Nearly all the above guidelines are being implemented day to day. Particular attention should be paid, above all, to the importance of information technologies in state bodies’ effective functioning.

After the state information system for recording migration has been launched in full, we will have a modern mechanism of control over the migration situation in general, and also an instrument to fight illegal migration.

The development of information technologies would facilitate the upgrading of measures to counteract illegal migration to a qualitatively new level, and abandoning document checks of people of “non-Slavic” appearance in the streets.

The state system of recording migration facilitates the monitoring of foreign national’s periods of stay in the country, as well as the ban on foreigners’ entry to the Russian Federation (67,000 such decisions have already been passed).

A successful experiment is underway in Moscow airports on the electronic transfer of migration card data from the Border Service to the state system of migration registration. The automated completion of migration cards allows the accumulation of actual data on foreign nationals, and in the long run would mean they no longer need to carry a paper migration card.

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Undoubtedly, in fighting various manifestations of unlawful activities relating to migration, personal identification is of paramount importance. The legal provision on storing fingerprint data on foreign nationals seeking a work permit comes into effect as of January 1, 2013; the respective bodies will issue residence permits to stateless persons and travel documents to refugees with the indication of biometric data.

Regarding legal regulation, we would like to highlight a number of legal innovations that will be established shortly: chiefly, amendments to the law providing for a longer entry ban (up to five years).

Russia has to introduce a more severe punishment as outlined in Article 3221 of the Russian Criminal Code for organizing illegal migration: in part one increasing it from two to five years, in part two increasing it from five to ten years, which would allow those offenses to qualify as crimes of moderate gravity and grave crimes respectively. In order to bring foreign workers into the focus of the Russian tax bodies, the FMS and Federal Tax Service are working to draft amendments to laws covering the issuance of taxpayer identification numbers at the when a work permit or a patent is issued, and for listing it in those documents. Putting this into effect will also rely on IT usage, including the inter-ministerial electronic data exchange system.

Under guidelines toward the simplification of administrative procedures, in compliance with the law and crime prevention, Russia’s FMS drafted a law making it possible for employers to apply for employment and hiring foreign labor via electronic communication channels. Similarly, employers would be able to follow procedures governing the submission of documents and legally required notifications regarding the employment of highly qualified specialists.

Arriving at an accepted legal definition of the term “immigration control,” and outlining the legal status of its officers and their powers are all particularly important from the viewpoint of managing and institutionalizing the process. Presumably, the legal consolidation of these norms could help deliver both higher efficiency in counteracting illegal migration and a reduction of the corruption risks.

The concept “immigration control” was introduced by a Russian Presidential decree dated December 16, 1993: 2145 “On Measures on Introduction of Immigration Control,” which established the following key functions of immigration control at border checkpoints:

• establishing control over the transit or entry of foreign nationals and stateless persons seeking asylum into the country, their identification and registration;
• applying measures to prevent unregulated migration and organizing the deportation of foreigners in instances and under the procedure provided for by the law;
• examining applications from foreign nationals and stateless persons arriving in Russia and seeking asylum.

Today, under current legislation, there is no immigration control at the border checkpoints; apparently, its tasks as set out by law should be different, subject to the functions actually carried out by Russian FMS immigration control units and other competent bodies involved in preventing and counteracting illegal migration. Apart from the Russian FMS, this process also involves consular offices of the Russian MFA (Ministry of Foreign Affairs), units of the Federal Security Service’s (FSB) Border Service, bodies under the internal affairs ministry. The Federal Migration Service also cooperates with the Russian Financial Monitoring Service, the Federal Service for Control in the Sphere of Protection of Consumer’s Rights and Welfare, and the Federal Drug Control Service among others.

At the same time, it is important the state authorities in the Russian Federation’s constituent entities, as they are in direct control of the territorial infrastructure, are both interested in and responsible for accommodating migrants in vacant housing lots, for example.

Notifying the authorities that migrants are illegally resident is a widespread phenomenon in a number of foreign states. It is important that the authorized bodies promptly respond to any such information, and that citizens no longer view this as “squealing.”

Russia also needs to enhance interaction between the FMS territorial units and local government in the Russian Federation’s constituent entities in order to develop managerial decisions in the field of migration taking due account of particular regional features. First, the burden of migration is particularly high in Moscow, the Moscow Region and St. Petersburg, while other regions, such as Siberia and the Far East for example, are in need of a boost in terms of their migration attractiveness.

The problems involved in combating illegal migration cannot be considered in isolation from other aspects of managing the migration process. Migration policy problems are among the key issues in Russia’s social and economic strategy through 2020. Russia’s migration policy does not require minor adjustment; it needs in-depth changes. The comprehensive implementation of the provisions set out in of the Migration Policy Concept would also reduce the risks related to illegal migration.

The academic community makes a significant contribution into the research into factors in and causes of illegal migration, and to developing recommendations as regards its prevention. The views presented here reflect a wide spectrum of urgent issues and opinions on aspects of its solution.

Illegal migration and related issues are regularly discussed at the Federal Migration Service’s Academic Council, which brings together a wide range of interested parties, including analytical experts.

Notes:

1. Data on Articles 18.8–18.11, 18.15–18.17.