The Constitutional Court of the Russian Federation obliged the courts to take into account the family situation of foreigners in cases of expulsion

On October 10, 2022, the Constitutional Court of the Russian Federation issued a ruling on the complaint of Serbian citizen Milan Dzhurdzhevich about the unconstitutionality of clause 12, part 1 of Art. 27 of the Law “On the procedure for leaving the Russian Federation and entering the Russian Federation”. According to this law, a foreign citizen or stateless person is not allowed to enter the Russian Federation for three years from the date of his previous departure from the Russian Federation if during his previous stay he exceeded the period of stay of 90 days in total during each period of 180 days.

In September 2019, by decision of the Slavyansk City Court of the Krasnodar Territory, Dzhurdzhevich was found guilty of violating the procedure for staying in Russia. However, when considering the case, the court took into account that Dzhurdzhevich was married to a Russian citizen, and did not impose a mandatory penalty in the form of administrative expulsion on him, limiting himself to a fine. A month later, the Main Directorate of the Ministry of Internal Affairs of Russia for the Krasnodar Territory banned Dzhurdzhevich from entering the territory of the Russian Federation for three years for violating the regime of stay. Dzhurdzhevich failed to challenge this decision in courts of general jurisdiction, and he appealed to the Constitutional Court of the Russian Federation.

According to the applicant, the contested norm allows one to be prosecuted twice for the same act, does not allow taking into account all the circumstances of the case, and also violates the right to inviolability of private life.

The Constitutional Court held that the application of expulsion in this particular case was inadmissible since it violated the applicant’s right to respect for private and family life. However, the resolution is not universal: the Constitutional Court did not find inconsistencies with the Constitution in the disputed paragraph of the law. The ruling emphasizes that the presence of a family does not provide migrants with immunity from liability if they violate migration laws. In its clarifications, the Constitutional Court pointed out that in order to make a decision on non-permission to enter Russia, the department must assess the marital status of a foreign citizen and the consequences of the decision for his family life, and the court must make a decision independently, after a thorough study of all the details of the case, and not only on the basis of formal federal law regulations.