“…with further deportation from the Russian Federation” – this is now the usual ending of court rulings on administrative violations of migration regulations committed by foreign nationals in Saint Petersburg. On August 9, 2013 changes to the existing regulations on immigration came into force, which made punishment for these violation stricter. Thus, any breach of immigration regulations in Moscow and Moscow region, Saint-Petersburg and Leningrad region now lead to obligatory administrative deportation of the violator, which earlier had been used only as an additional punishment (to be decided by the court). These legal changes came very handy to police and Federal Migration Service’s (FMS) officers, as well as to the judges, who now don’t have to consider the individual circumstances of a particular case of a foreign national – if the latter is “caught” in these “privileged” regions of the Russian Federation, one is guilty by default and subject to deportation.
We will not consider political motives for introduction of the new regulations and the anti-immigrant campaign that followed – with police raids, tent camps set up for the rounded up people, overcrowded centers for detention of foreign nationals, odious anti-immigrant statements, which became usual part of public discussions, with the attitude towards “fighting illegal immigration” (by any means necessary), which is now considered an absolute virtue or at least a necessity – these things have been adequately described in the statement made by Moscow human rights defenders (“Why Are You Silent?”). We will limit ourselves to a merely legal and practical side of what is happening, because it describes very well the present gloomy picture.
In Saint Petersburg anti-immigrant campaign started shortly after it had been launched in Moscow. City authorities seemed to have been inspired by the “success” of their Moscow colleagues, who had established a whole new tent camp for detained illegal immigrants, and they also started to actively seek the violators of immigration regulations. This official anti-immigrant campaign followed shortly after the so-called “Russian cleansings” at the city’s markets carried out by nationalists and this added to a feeling of uneasiness.
Anti-immigrant raids were carried by the police and FMS in all districts of the city and the region, where immigrants live or work. One cannot say that this was something entirely new for the city, as there had been raids here earlier, for example, in February 2013 when Apraksin Arcade was raided. This campaign was also trumpeted by the media, which continuously asked their audiences “What to do with illegal immigrants?” At the same time all the talk of “unacceptability of violating the existing [immigration] legislation” was a mere smokescreen for racism and xenophobia. In this respect, the example of “popular assemblies” in Vasileostrovsky district of Saint Petersburg is very illustrative – while protests were held against the hostel on Veselnaya street, which hosted immigrant workers, the check carried out by FMS in fact discovered that all people living there were completely “legalized”. But this didn’t interest the participants of the “popular assembly” much – they easily found other pretexts for hate towards immigrants. It is noteworthy that while the campaign was covered by the media, no reports were made about detentions of Ukrainian and Belorussian workers, who also come to Russia en masse.
As a result of the feverish activities by the law enforcement agencies, the Center for detention of foreign nationals in Saint Petersburg was overcrowded. Regional department of FMS for Saint Petersburg and Leningrad region reported with some pride that it had surpassed the expected figures for the number of detained and that “the Center for temporary detention of foreign nationals in Krasnoye Selo also got a new additional temporary settlement made up of cabins, where all the required conditions were in place and which enabled to have some 260 additional places for temporary detention of illegal immigrants”. In spite of the fact that foreign nationals can be held only in specialized Centers for detention of foreign nationals ahead of deportation, the law enforcement agencies resorted to the old practice of holding foreign nationals at the temporary detention center on Zakharyevskaya street in Saint Petersburg, as well as in local police stations and other places not fit for detention of foreigners. It was only due to reports of the detained persons themselves that this practice was discovered.
It should be noted that in the situation of massive arrests and de facto violation of rights of immigrants, a volunteer association “Rights for you” has actively reacted against this arbitrariness and xenophobia. Volunteers of this group called local police stations, where immigrants were held, brought food for them, were present at court hearings that ruled on deportation, tried to be helpful in many different ways. Their activities were a good example of solidarity with vulnerable and scared people, who found themselves in extremely difficult situation, while at the same time the police and courts were reminded that human rights were for everybody (in spite of the fact that some officials acted as if they were in a position to do as they wished in case of some undefended “illegal immigrants”).
Nevertheless, even if court proceedings were held in the presence of attorneys, most of administrative court hearings concerning violations of immigration regulations were held not on a competitive basis, but as a mere final stage of FMS operations, a logical continuation of an anti-immigrant raid. Immigrants, no doubt, considered these court proceedings as a mere confirmation of an earlier decisions already made by FMS officers to charge them and further sentence them to deportation (in worst cases – with placement into Center for detention of foreign nationals ahead of deportation).
When considering these cases in courts of primary jurisdiction, the right to use the services of translator, which is guaranteed by the Code on administrative violations, as well as the right to use attorney, were almost universally violated. This was encouraged by the fact that when FMS officers had been filling in detention protocols, they had asked the detainees to write that the latter “mastered Russian’, had “no need for attorney”, “admitted violations and showed repentance”, although all these phrases had been usually simply copied by the detainees, foreign nationals, from a sample form, while the detainees often learnt about their right to have an attorney already in court and in some cases remained ignorant of what they were guilty of even after the court had pronounced its sentence.
At the same time the judges almost universally believe what the protocol says or at least use the protocol as a pretext for dismissing any protests in court. Thus, while considering an administrative case of an Uzbek citizen by Gatchinsky district court of Leningrad region, the judge responded to his request for a translator by saying that he had indicated in the protocol that he spoke Russian, and the judge considered his refusal to speak Russian in court as a pretext for not providing explanations in court.
It becomes obvious that in this situation appealing an administrative case by foreign nationals in Russian courts of higher jurisdiction becomes practically impossible. Instead of this, now, that the legislators have left no choice for the judges in whether to use such a serious penalty as administrative deportation (which is also linked to a further 5-year ban on entry to the Russian Federation), the courts de facto resorted to simply “stamping” rulings on cases related to violation of immigration regulations based on the protocols provided by the FMS without properly studying the circumstances of all individual cases. Instead of serving its functions as an institute controlling legality and a sort of a counterbalance to the arbitrary actions of the law enforcement agencies, the courts in fact become part of the state policy of “fighting against illegal immigration”.
In such cases references to the violation of procedural norms or incorrect implementation of the laws sound almost improper. Any hesitation or collisions are interpreted for the benefit of the officers of FMS. It is noteworthy that all attempts of the lawyers of ADC “Memorial” to reclaim through court the wage arrears for labor immigrants from non-law-abiding employers were fruitless, because the courts required written contracts as the only way to prove that there was employment. However, in court cases concerning “illegal labor activities” by immigrants, the courts, on the contrary, never asked for written contracts or oral testimonies by employers – nothing was required at all. The case of a 16-year old Uzbek citizen charged with illegal work in Gatchinsky district of Leningrad region clearly demonstrates how the courts ignore legal arguments in defense of immigrant workers. The protocol compiled by FMS officers reads that a foreign citizen was working in Russia without a proper work permit, which was a violation of immigration regulations. At the same time there was no possibility for a minor to get a work permit, as it is forbidden for foreign underage persons! But this absurd contradiction was not interesting for the court, as well as the absence of family members or other legal representatives of the minor in court. The court didn’t study how the minor found itself on the territory of the enterprise where he supposedly had worked. He was simply considered working and thus was pronounced guilty.
Besides this, the appeal against the earlier court ruling featured some procedural violations: the court cases against minors should be considered by special commissions on underage persons and the law features only a limited number of exclusions to this rule (Article 23.2 of the Code on administrative violations). Thus, a case against a 16-year old Uzbek citizen was to be considered by such a commission. However, Leningrad regional court ruled that since a ruling on deportation could only be made by an administrative court, this general rule was not applicable to underage foreign nationals. In essence the court ruled that foreign underage persons should not be subjected to special treatment and can be taken to administrative courts same as adults!
Even if we suppose that there is a legal collision that the cases of underage persons should be considered by commissions for underage persons and the ruling on deportation can only be made by administrative courts, after August 9, 2013 this ruling on deportation is obligatory. This collision should be addressed based on presumption of innocence as well as the basic principle of defending the rights of the child. Thus, if deportation cannot be a sentence made by the commission on underage persons, it should not be practiced in case of underage foreign nationals.
Unfortunately judges often consider this approach unacceptable. They prefer to be guided by ”the practice of FMS”, but not the legal principles or “abstract” human rights, which have nothing to do with the usual and all-explaining term “illegal immigrant”. This explains why the law enforcement agencies and courts to act completely as they wish in case of these people, simply trying to increase statistics of “legally charged” and “deported” persons.
by Anna Udyarova