In August 2021, amendments to the Law on the Legal Status of Foreign Citizens in the Russian Federation and other legislation regulating the legal status of stateless people came into force (Law No. 22-FZ of February 24, 2021, entered into force 180 days after signing). By the beginning of January 2022, about 600 stateless people had been documented in Russia (according to the Ministry of Internal Affairs), and this problem received substantial media attention when the first stateless person’s certificate was issued in Moscow. This blog examines the grounds for celebration of this case and the work ahead to protect the rights of stateless peoples in Russia.
In practice, the new amendments (Article 52) provide for issuing a temporary identity document to stateless people, allowing them to legally live and work in Russia. The document is issued for 10 years and provides significant protection: documented stateless people cannot be expelled or deported and decisions on their undesirability, expulsion or deportation must be cancelled. A reduced timeframe has also been imposed within which authorities are required to identify stateless persons and issue identification. Once equipped with ID, documented stateless people cannot be prosecuted for violation of the migration regime or ’illegal labour’ offenses.
What was the situation before?
Previously, the Law on the Legal Status of Foreign Citizens already had Article 101 (since 2013) describing the procedure for identifying an undocumented foreign citizen or a stateless person. However, the law did not prescribe the issuance of a document legalizing a stateless person. Furthermore we know from practice that in reality it was almost impossible to pass this procedure: instead of collecting documents and other information, interviewing witnesses, identification, police officers would routinely detain the stateless person and place them in a detention centre for violation of the migration regime (here are some ADC Memorial case studies on this approach).
Russian migration legislation treats migrants with citizenship and stateless people as a united group, including in the provisions of the law governing removal/deportation. Violation of the migration regime falls under administrative proceedings for the execution of which the law allocates up to 2 years. Although detention in such centres is not considered punishment but an ‘interim measure’, there has been no judicial control over these centres, meaning detainees could not appeal their detention. Accordingly, undocumented stateless people who could not be removed anywhere were deprived of their liberty in such institutions for up to 2 years. When they left the detention centre they did not receive documents, so many of them were imprisoned again, or even several times.
The role of the European Court in the change of the law
The amendments to the Law on the Legal Status of Foreign Citizens could have been adopted much earlier – back in 2014, when the ECHR had issued a strategic decision in the case “Kim v. Russia” (read more about the facts and legal argument on the ENS Statelessness Case Law Database). The prescribed general measures included the establishment of the legal status of stateless people and their documentation, as well as the introduction of judicial control over detention centres. Precisely because Russia did not comply with the ECHR decision, ADC Memorial had to initiate the appeal to the Constitutional Court of the Russian Federation in the Mskhiladze case in 2017. Thus, the adoption of amendments on the documentation of stateless people was further delayed by about 7 years.
How did the law change?
The immediate catalyst for changing the law was the strategic decision of the Constitutional Court of the Russian Federation No. 14-P/2017 in the case of Noe Mskhiladze, a client of ADC Memorial. The court ordered the legislative bodies of Russia to establish a special migration status of stateless person, protecting them from impossible expulsion and detention. In addition, the Constitutional Court ordered the implementation of judicial control over the timing and grounds for detention.
Even before the amendment of the Law on the Legal Status of Foreign Citizens, lawyers of stateless people have enjoyed the new the opportunity to refer to the Constitutional Court’s ruling to achieve the release of their clients. A professional term has emerged: “liberation by the Mskhiladze mechanism”.
The work ahead to protect stateless people’s rights in Russia
While the adoption of these amendments is a huge step forward, human rights defenders still have a lot of work ahead. Unfortunately, the second aspect of the ECHR decision in the Kim case and the decision of the Constitutional Court of the Russian Federation in the Mskhiladze case has not yet been reflected in Russian legislation and practice. Judicial control over the legality and duration of the detention has not been introduced in law, meaning the relevant amendments to the Administrative Code have been under consideration since 2017 but have not yet been adopted. In practice detainees who have nowhere to be expelled and who do not know about the new law and their rights are still deprived of liberty without access to legal aid, in conditions that are worse than in prison.
Furthermore, the other related pieces of legislation important for stateless people are not yet amended – for instance, the Law on Acts of Civil Status, in order for stateless people to be able to marry, be legal parents of their children, receive welfare benefits, education, health services, etc.
Practicing lawyers are still sceptical about the work of law enforcement in the identification of stateless people and believe that the implementation of the amendments will be delayed by local authorities in the field of migration. Until now, there are insufficient by-laws and administrative regulations in place by the Ministry of Internal Affairs of Russia to consistently protect stateless people.
Human rights defenders are also concerned about existing judicial practice: courts continue to issue rulings on expulsion of stateless people and on their detention. This also applies to those who have been deprived of their liberty more than once. For example, the lawyers of ADC Memorial twice won the release of Alovidin H., a stateless person of Tajik origin, from the detention centre (in 2017 and in 2019), and each time this case required an appeal in several court appearances. And again, in December 2021, the St. Petersburg City Court refused to release Alovidin from the detention centre, – despite the impossibility of expulsion, the amended law and the danger of COVID-19 infection in the detention centre.
Finally, there is a very concerning point in the amended law that a stateless ID cannot be issued (and an already issued ID can be revoked) if a stateless person has provided false personal information or forged documents when applying for the ID. In practice, some stateless people resort to forged documents in desperate attempts to navigate bureaucratic system that require documents they do not have. We have already seen a precedent when a person was deprived of Russian citizenship for a crime committed, which was interpreted as “providing false information” when applying for citizenship. This creates a risk of statelessness, and the ground for further human rights violations.
For other jurisprudence on Russia browse through the ENS Statelessness Case Law Database.
Olga Abramenko, Expert, Anti-Discrimination Centre Memorial
First published in the blog of European Network on Statelessness