Who is allowed to live in Russia? Russian legislation and the rights of migrants for family unity

13.09.2014
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A court ruling in favor of human rights, especially if the European Convention on Human Rights (ECHR) is quoted, is a quite rare and thus a very welcome event in Russia. Because of that it we are glad to report the judgment of Kirovsky town court of Leningrad region dated September 11, 2014, which prevented deportation of Maria B., citizen of Turkmenistan, who had been charged with violation of Article 18.8 Section 3 of the Code on administrative violations (breaking the terms for stay in Russia). While making judgment in this case, the judge quoted Article 8 of ECHR regarding right to respect for private and family life, because the woman had her husband and child in Russia.

The right to respect for private and family life secured by the Convention is often violated in cases of labor immigrants in Russia, who stay here with their families, even when they have small children.

It is very often that people charged with breaking immigration regulations in Russia are detained, subjected to deportation from the country or arrest even in cases when they are not to blame for lack of proper documents. The case considered in Kirovsky court on September 11 is a good illustration of this practice, when Maria B. was charged with violation of immigration regime after 15 years that she had spent in Russia with her husband, who had been lucky to have received Russian citizenship. In 2005 she received a 3-year permission to stay in Russia, but she failed to get Russian citizenship because the dates of birth in her birth certificate and in her passport didn’t match. Maria has struggled for 15 years for legalization of her right to stay in Russia, but even the official status of “settler” that she had received in Russia didn’t help to solve this problem and make bureaucratic procedures simpler.

Unfortunately a similar case that was considered in a different court just a week before resulted in a different judgment. (Lawyer Olga Tseytlina represented legal interests of both claimants in accordance with the agreement with ADC “Memorial”.) Kalininsky district court of Saint Petersburg ruled on September 3, 2014 that Mr. K., citizen of Uzbekistan, should be placed in Center for detention of foreign nationals in spite of the claims of his lawyer that he had the right not to leave the country because his wife and child remained in Russia. The court refused to take into consideration the fact that Mr. K. supported his partner, who was a disabled person with poor sight and their common small child, citizen of the Russian Federation. The court referred to the “necessary limitation of the right to respect for private and family life in democratic society” and pointed to the fact that the marriage was not registered, which supposedly indicated lack of desire to establish a family. However, Mr. K. was proven to be the certified father of the child and in spite of the lack of registration of marriage, such families are considered de facto families in the countries-members of the Council of Europe.

Legal practice of both ECtHR and the Russian Supreme Court (ruling dated February 11, 2010 in case of Zakayev and Safonova v. Russia, appeal № 11870/03) indicates that violation of immigration regulations cannot be considered a serious legal offense and cannot be used as a basis for intrusion into family life. Detention and deportation of a member of a family living in the Russian Federation violate the principle of family unity, articles of the Russian Family code which defend child’s right to be raised by both parents. Based on that, the judgment of Kalininsky district court will be appealed in higher court.