Organization of specialized institutions for the detention of foreign citizens before their expulsion from the territory of the country of temporary residence

SHadrina Liliya Valer'evna ORCID: 0000-0003-4796-9233 Associate Professor; Department of Administrative Activities of Internal Affairs Bodies; Tyumen Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia 75 Amurskaya str., Tyumen, Tyumen region, 625049, Russia danelyanlv@mail.ru

In the Russian Federation, as in most foreign countries ^{[1, p. 85]}, there are specialized institutions for the detention of foreign citizens in order to ensure their removal from the territory of the country of temporary residence - temporary detention centers for foreign citizens (hereinafter referred to as CSIG, special institutions) (Federal Law No. 115 of July 25, 2002-Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" // Russian Gas. 2002. July 31).

CCSIG detain foreign citizens during the implementation of three coercive measures related to their expulsion from the territory of residence: administrative expulsion, deportation and readmission, which are directly carried out under the supervision of officials of the specified special institutions.

Such scientists as S.I. Ivanova, E.G. Yuzikhanova, E.A. Letaeva, E.P. Zakharova, S.S. Alekseev, N.V. Vitruk, V.I. Novoselova and others consider the problems of the content, the specifics of the implementation and mechanism of the detention of foreign citizens and stateless persons in specialized institutions.

As noted by E.A. Letaeva, according to statistical data, mainly foreign citizens who are subject to compulsory administrative expulsion from the Russian Federation are held in the CCSIG ^{[2, p.39]}, this circumstance is due to the fact that the specified administrative punishment is imposed not for violating the regime of stay on the territory of the Russian Federation, but for committing offenses that form the composition of an administrative offense in the field of violations of migration rules.

The date of establishment of such institutions is considered to be 2004 ^{[3, p. 26]}. The first institution established in Moscow was actually a pre-trial detention facility with a more lenient regime of detention^{[4, p.32]}. At the same time, as E.A. Letaeva notes, the historical background of such special institutions has a longer history and dates back to the beginning of the 20th century. In 1918, in connection with the appearance of refugees and emigrants, and to keep records of them and control their movement, foreign departments were established as part of the NKVD of the RSFSR, commissariats for internal Affairs and executive committees on the ground ^{[5, p.23]}. Since the process of creating special institutions was lengthy for objective reasons, it was legally allowed for the detention of refugees and emigrants in temporary detention facilities and even pre-trial detention facilities ^{[5, p.28]}.

As O.I. Kopytina rightly notes, "the conditions of detention of this category of persons in the Russian Federation have repeatedly become the causes of complaints and appeals from foreign citizens to the European Court of Human Rights, prosecutor's offices, and human rights organizations, which leads to material and image losses for the state"^{[6, p.690]}. This is partly due to the lack of legislative regulation of the legal status of these institutions ^{[7, pp.44-45]}.

Of particular note is the attempt to create special institutions for only one category of foreign citizens – citizens subject to readmission. The emergence and formation of special institutions intended for the temporary accommodation of foreign citizens subject to readmission, as noted by Ya.L. Vanyushin, have a short history ^{[8, p.7]}. Their appearance in 2007 was caused by the need for the Russian Federation to implement international obligations under readmission agreements, the latter was considered as a highly effective tool for countering illegal migration^{[8, p.7]}. By 2011, a total of 3 special institutions of the Federal Migration Service of Russia with a total capacity of 192 places had been created. In the future, their merger with special institutions in which foreign citizens subject to administrative expulsion and deportation were held was due to the unity of the legal and organizational forms of their activities ^{[8, p.15]}.

It is obvious that the problem of the detention of minor foreign citizens in the CSIG has not yet been resolved, who may arrive with their parents or independently or may be born on the territory of the Russian Federation, and as A.V. Lupenkov rightly notes, their status directly depends on the status of the parents, namely the length of stay and place of stay^[9,pp.67-68]. Due to the impossibility of detaining minors without parents in the Central Detention Center, there is a practice of placing them in the Temporary Detention Center for Juvenile Offenders of the Internal Affairs Body (hereinafter referred to as the Central Detention Center). According to statistics, more than 1.5 thousand people are delivered to these premises annually. At the same time, there is no legal basis for the detention of these persons in the Central Tax Service. In this regard, a legislative expansion of the circle of persons placed in the Central Social Security Service is required, and the introduction of a new category of minors into Federal Law No. 120-FZ of June 24, 1999 "On the basics of the system for the prevention of neglect and juvenile delinquency" – minors subject to return to the state of permanent residence^{[9, p.73]}.

Our earlier analysis of the foreign experience of detaining foreign citizens and stateless persons before their expulsion from the territory of the host country showed that there are no uniform international standards, as well as uniform national approaches to ensure the rights and legitimate interests of such citizens, including the grounds for placement in these institutions by decision of judicial or administrative authorities.^[1,p.90].

For example, in the Republic of Turkey, migration control is carried out by employees of the Ministry of Internal Affairs of Turkey, who escort foreign citizens to Repatriation Centers. Persons against whom a decision has been taken to deport from the country are being held in reparations centers. The period of detention under administrative supervision in the reparations center should not exceed six months. However, it is allowed to extend this period for no more than six months if the deportation process is not completed, since the foreign citizen refuses to cooperate with local authorities and provide reliable information or documents. (Information letter from the representative of the Ministry of Internal Affairs of Russia in the Republic of Turkey dated April 1, 2020 No. N/G75 N.E. Gasimov. The document was not published.).

In the Republic of India, detention centers for foreigners are also under the jurisdiction of the territorial bodies of the Bureau of Immigration under the Ministry of Internal Affairs of India, but are established by decision of the authorities of the constituent entities of the Republic. If there is a shortage of places in special institutions, foreign citizens can be placed in general-purpose detention facilities. In the Republic of Cyprus, foreigners can also be held in a penitentiary institution if there are no temporary detention centers for illegal migrants.

In the Kingdom of Spain, the maximum period of detention in special centers has not been established; if it is inappropriate to keep them, they are transferred to the care of charitable organizations (Information letter from the representative of the Ministry of Internal Affairs of Russia in the Kingdom of Spain dated 03/25/2020 No. 124 A.M. Trofimets. The document was not published.).

In the Republic of Kazakhstan, foreign citizens are held together with persons subjected to administrative arrest in special reception facilities or temporary detention facilities (Law of the Republic of Kazakhstan dated March 30, 1999 No. 353-1 "On the procedure and conditions of detention of persons in special institutions, special premises providing temporary isolation from society" // https://online .zakon.kz/Document/?doc_id=1012660 (date of application: 05/24/2023); Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 23, 2011 No. 232 "On approval of the Rules for organizing the activities of special receivers of internal affairs bodies" // https://online .zakon.kz/Document/?doc_id=31048265&pos=5 ;-106#pos=5;-106 (accessed: 05/24/2023).

Unlike the legislation of the Russian Federation, in the legislation of the Republic of Kazakhstan, the detention of a foreign citizen for his expulsion is not identical to administrative detention, which is a measure to ensure proceedings in cases of administrative offenses, because administrative detention has other purposes and is not related to the enforcement of the decision issued in the case (Articles 787-789 of the Administrative Code of the Republic of Kazakhstan). In accordance with Article 28 of the Law of the Republic of Kazakhstan dated June 19, 1995 No. 2337 "On the legal status of foreigners", this person, with the approval of the prosecutor, is subject to detention for the period necessary for expulsion ^{[10, p.63]}.

In accordance with Article 59 of the Latvian Immigration Act (the Immigration Act of the Republic of Latvia, adopted by the Seimas on October 31, 2002. URL: https://www.legislationline.org/. (date of application: 07/15/2024) a detained foreign citizen is placed in a temporary detention facility of the State Border Guard (hereinafter referred to as the GPO) or in a placement center separately from persons detained or detained under criminal procedure. The Center is a structural unit of the GPO, which is part of the territorial state border guard. In addition, two specialized Centers have been established in the Republic of Latvia to accommodate detained foreigners who are subject to expulsion, where they are held in accordance with the procedure provided for in Cabinet Rules No. 254 dated May 16, 2017 "Internal Regulations in Premises for the Accommodation of Detained Foreigners and Asylum Seekers" (Information Letter from the Deputy Head of the Migration Office of the Ministry of Internal Affairs of Russia in the Republic of Latvia To the Republic of V.V. Tartyshev dated 05/14/2020 No. 170/ms ).

In order to ensure the deportation of persons who are denied further stay in Germany, to the country of origin or to the State of their first illegal entry, in accordance with the Dublin Agreement, a measure of coercion in the form of detention is applied. The decision to place foreigners in a temporary detention center is made by the district courts. Detention is regulated by Articles 62 and 62 of the Law on Stay. The issues of law enforcement are attributed to the competence of the federal lands.

Currently, temporary detention centers in Germany operate in six countries.: Baden-Württemberg (Pforzheim), Bavaria (Eichstedt), Brandenburg (Eisehüttenstadt), Lower Saxony (Langenhagen), North Rhine-Westphalia (Buren), Rhineland-Palatinate (Ingelheim am Rhein). The maximum periods of detention are legally defined: up to 10 days (for the period preceding deportation, the exact date of which is set, but there is a possibility that the person will attempt to evade it - the so-called Ausreisegewahrsam) and up to 18 months (for persons subject to expulsion for illegal entry into the country, hiding from migration authorities - the so-called Abschiebehaft). According to the CSWR, there are up to 600 places in temporary detention centers for foreign citizens, and the federal government plans to increase this figure to 1,000 places (Information letter from the representative of the Ministry of Internal Affairs of Russia in Germany, R.A. Terentyev, dated 04/14/2020, No. 113. The document has not been published).

According to Article 29 of the Regulations on the Management of Entry and Exit of Foreign Citizens to the People's Republic of China dated July 12, 2013, specialized places for the detention of deported foreign citizens in the country are created, if necessary, by public security agencies. In case of further verification during the detention of a foreign citizen, in accordance with article 60 of the Law of the People's Republic of China "On Entry and Exit", it is necessary to bring the detained foreign citizen to the place of detention or the place of detention of deported foreign citizens within 24 hours. If immediate deportation or expulsion is impossible due to weather conditions, the state of health of a foreign citizen or for other reasons, the foreign citizen must be held in a place of detention or a place of detention of deported foreign citizens on the basis of an appropriate legal document.

The periods of detention in special institutions before the expulsion of foreign citizens from the host country vary, ranging from short–term (Republic of Armenia – 90 days) to long-term (Germany - up to 18 months), or not at all (Kingdom of Spain).

For a long period, the legislation of the Russian Federation did not contain an indication of the deadlines for the detention of foreign citizens and stateless persons in temporary detention centers for foreign citizens, which was the subject of constructive criticism and discussion.

As follows from the Rules of detention (stay) in special institutions of the Ministry of Internal Affairs of the Russian Federation or its territorial body of foreign citizens and stateless persons subject to administrative expulsion from the Russian Federation in the form of forced expulsion from the Russian Federation, deportation or readmission (Decree of the Government of the Russian Federation of December 30, 2013 No. 1306 "On Approval of the Rules for the detention (stay) in special institutions of the Ministry of Internal Affairs of the Russian Federation or its territorial body of foreign citizens and stateless persons subject to administrative expulsion from the Russian Federation in the form of forced expulsion from the Russian Federation, deportation or readmission // Collection of legislation of the Russian Federation. Federation. 2016. No. 26. Art. 4060.) (hereinafter referred to as the Rules), the detention of these persons in special institutions is carried out until the actual implementation of administrative expulsion.

At the same time, a deadline has been legally established for the fulfillment of the requirements set out in the executive document. This period is two months from the date of initiation of enforcement proceedings (Federal Law No. 229-FZ of October 2, 2007 "On Enforcement Proceedings" // Collection of Legislation of the Russian Federation. Federation. 2007. No. 41, article 4849.)

As noted by E.P. Zakharova, there is a need to systematize the analyzed norms by legislating the maximum allowable period of detention of a foreign citizen in a special institution for up to two months, the beginning of which should be determined from the moment the bailiff issues a decree escorting the relevant subjects to the checkpoint across the state border of the Russian Federation (taking into account the timing of the initiation of the case, its subsequent review and appeal)^{[11, p.61]}.

It is obvious that if this issue is not resolved, there will be violations of these constitutional provisions, as well as acts of an international nature (for example, the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees everyone the right to freedom and personal integrity). At the same time, it should be noted that the period of stay in a special institution is not counted towards the period of the established ban on entry into the Russian Federation.

Federal Law No. 649-FZ of December 25, 2023 "On Amendments to the Code of Administrative Offences of the Russian Federation" of the Administrative Code of the Russian Federation was supplemented by Article 27.19.1. "Terms of detention of foreign citizens or stateless persons subject to administrative expulsion from the Russian Federation in special institutions", which regulates in detail not only the specified terms, but also the procedure for their extension and appeal.

The term of detention of a foreign citizen or a stateless person subject to forced expulsion from the Russian Federation in a special institution should not exceed ninety days. In the absence of the actual possibility of executing a decision on the imposition of an administrative penalty in the form of administrative expulsion from the Russian Federation of a foreign citizen or a stateless person, the period of detention in a special institution may be extended by a judge at the request of the bailiff implementing the decision on an administrative offense, as well as an authorized official of the internal affairs body, but no more for more than ninety days.

At the same time, Part 15 of Article 27.19.1 of the Administrative Code of the Russian Federation allows for a further extension of the period of detention of a foreign citizen or stateless person subject to forced expulsion from the Russian Federation in a special institution, without specifying the number of such extensions. In this case, the uncertainty of the norm is stated, which does not prohibit the extension of the period of detention of such persons for more than 180 days, which may cause new discussions and fair criticism. It will generate new discussions and fair criticism.

The term of detention of a foreign citizen or a stateless person subject to forced expulsion from the Russian Federation in a special institution is calculated from the date of the decision on administrative expulsion from the Russian Federation, and in the case of an extension of the period of detention - from the date of the judge's ruling on the extension of the period of detention in special institutions of a foreign citizen or a stateless person subject to forced expulsion from the Russian Federation.

It is also necessary to analyze the norm stipulated in Part 4 of Article 27.19 of the Administrative Code of the Russian Federation, which grants the right to make this decision not only to the court, but also to the relevant official of the border agency. This provision contradicts the constitutional imperative that coercive measures involving arrest and detention must require a court decision.

Based on the above, it is necessary to make appropriate legislative changes to the list of entities authorized to make a decision on the placement of a person subject to administrative expulsion in a special institution, leaving only the court.

It should also be noted that the problem of insufficient number of places of detention of foreign citizens in special institutions remains urgent, which naturally follows from the above-mentioned circumstance due to the long periods of detention of foreign citizens, since ensuring their stay in these special institutions and catering are attributed to the scope of expenditure obligations of the federal budget, which is often a reason for a negative reaction from taxpayers.

In turn, the expulsion procedure is attributed to the financial burden of the federal budget due to the inability of the expelled to finance it themselves. This obligation is also imposed on the body that invited them, however, due to the widespread practice of falsifying such invitations, identification of the inviting body is impracticable. As V.A. Kolokoltsev has repeatedly noted, the amount of funds allocated for the purpose of expulsion from the Russian Federation ensured the dispatch of only 30% of the total number of foreign persons who are placed in special institutions ^{[12, p.55]}.

Thus, the organization of specialized institutions for the detention of foreign citizens before being expelled from the territory of the country of temporary residence in different countries has both similar features and significant differences. To date, there is no uniform practice of detaining foreign citizens before being expelled from the host country, which entails a violation of their rights and legitimate interests.

We believe that it is more appropriate to develop uniform international standards for the detention of such persons, in terms of determining the body of placement in such institutions (judicial or administrative), their jurisdiction over internal affairs bodies, and deadlines for the detention of foreign citizens.