Civil rights and obligations of foreign citizens. Legal status of foreign citizens in the Russian Federation
As already noted, foreign citizens and stateless persons in the Russian Federation enjoy the rights and bear obligations on an equal basis with citizens of the Russian Federation, except in cases established by federal law or an international treaty, Part 3, Art. 62 of the Constitution of the Russian Federation 1993. .
Federal Law "On the Legal Status foreign citizens in the Russian Federation” establishes some restrictions on the rights and freedoms of foreign citizens, but at the same time exempts them from certain obligations that arise only if they have citizenship of the Russian Federation.
Foreign citizens in the Russian Federation do not have the right to:
§ Elect and be elected to federal government bodies, government bodies of the constituent entities of the Russian Federation
§ Participate in the referendum of the Russian Federation and referendums of the constituent entities of the Russian Federation, however, foreign citizens permanently residing in the Russian Federation have the right to elect and be elected to local governments, as well as participate in a local referendum, in the cases and in the manner prescribed by federal laws.
§ They cannot be called up for military service (alternative civilian service), but, taking into account the contractual basis for the formation of part of the troops of the Armed Forces of the Russian Federation, they can be recruited into the troops, military formations and bodies as civilian personnel, they can also enter military service by contract. Foreign citizens perform military service under a contract in military positions to be replaced by soldiers, sailors, sergeants and foremen in the Armed Forces of the Russian Federation, other troops, military formations and bodies. In this regard, we can conclude that the movement of military personnel - foreign citizens in the service can be carried out within the framework of only one composition of military personnel - soldiers, sailors, sergeants, foremen.
Capable foreign citizens and stateless persons who have reached the age of eighteen and apply for the acquisition in full legal status a citizen of the Russian Federation, has the right to apply for admission to the citizenship of the Russian Federation. For those who came to us after July 1, 2002, a mandatory condition is that they must continuously reside on the territory of the Russian Federation for five years from the date of obtaining a residence permit Kozlov Yu.M., D.M. Ovsyanko, L.L. Popov. Administrative law. / Statute, M. - 2008..
This rule does not apply to persons:
having at least one parent - a citizen of the Russian Federation residing on the territory of the Russian Federation;
who had the citizenship of the USSR, who lived and live in the states that were part of the USSR, who did not receive the citizenship of these states and, as a result, remained stateless;
born on the territory of the RSFSR and who had citizenship former USSR;
married to a citizen of the Russian Federation for at least three years;
disabled and having capable, who have reached the age of eighteen years and are citizens of the Russian Federation, a son or daughter.
Of course, the applicant is obliged to comply with the legislation of the Russian Federation, have a legal source of income, renounce his other citizenship and speak Russian.
Decisions on citizenship issues are made by the President of the Russian Federation within a period of up to one year from the date of application.
The above categories of citizens have the right to acquire citizenship of the Russian Federation in a simplified manner, that is, without mandatory compliance with all conditions within six months from the date of application and all required documents Bahrakh D.N., Rossinsky B.V. Starilov Yu.N. Administrative Law M. Norma, 2005. - 800 p. RF, while the decision to grant citizenship in general order accepted by the President of the Russian Federation.
For veterans of the Great Patriotic War who had the citizenship of the former USSR and resides on the territory of the Russian Federation, there is only one condition - it is imperative to comply with the Constitution and legislation of the Russian Federation.
Without observing any conditions, only at the request of a parent, guardian or custodian who has citizenship of the Russian Federation, children and incapacitated persons who are considered foreign citizens or stateless persons receive citizenship of the Russian Federation.
Persons who had USSR citizenship, arrived in the Russian Federation from the states that were part of the USSR, and were registered at the place of residence in the Russian Federation as of July 1, 2002, or who received a temporary residence permit in the Russian Federation or a residence permit, were given the opportunity to apply on admission to the citizenship of the Russian Federation without observing the conditions on the period of residence, source of livelihood and language.
Foreign citizens have the right to freedom of movement for personal and business purposes within the Russian Federation, with the exception of visiting territories, organizations and facilities that require special permission Dmitriev Yu.A., Polyansky I.A., Trofimov E.V. Administrative Law of the Russian Federation: Textbook for Law Schools. - System GARANT, 2008..
In accordance with Decree of the Government of the Russian Federation of October 11, 2002 No. 754 “On Approval of the List of Territories, Organizations and Objects for the Entry of which Foreign Citizens Require a Special Permit”, such territories, organizations and objects include:
Territories of closed administrative-territorial formations;
Territories with regulated visits for foreign citizens;
Territories in which a state of emergency or martial law has been introduced;
Territories where, in the event of a danger of the spread of infectious and mass non-communicable diseases and poisoning of people, special conditions and regime of stay have been introduced;
Territories of closed military camps;
Territories (objects) within which (on which) the legal regime of the counter-terrorist operation has been introduced;
Ecological disaster zones;
border zone;
Objects and organizations of the Armed Forces of the Russian Federation, other troops and military formations;
Objects that house public authorities and other bodies and organizations that carry out work related to the use of information constituting a state secret;
Other territories, organizations and facilities for which Russian citizens need special permission to visit.
A foreign citizen temporarily residing in the Russian Federation is not entitled to own will change the place of his residence within the subject of the Russian Federation, on the territory of which he is allowed temporary residence, or choose the place of his residence outside the boundaries of the specified subject of the Russian Federation Bahrakh D.N., Rossinsky B.V. Starilov Yu.N. Administrative law M. Norma, 2005. - 800 p.
Foreign citizens who are employees of diplomatic missions and employees of consular offices of foreign states in the Russian Federation, employees international organizations, as well as foreign journalists accredited in the Russian Federation, the right to freedom of movement within the Russian Federation is granted on the basis of the principle of reciprocity, with the exception of visiting territories, organizations and facilities that require special permission Dmitriev Yu.A., Polyansky I.A. ., Trofimov E.V. Administrative Law of the Russian Federation: Textbook for Law Schools. - System GARANT, 2008..
Federal Law No. 109-FZ of July 18, 2006 “On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation” establishes that foreign citizens permanently or temporarily residing in the Russian Federation are subject to registration at the place of residence and registration at the place of stay, and foreign citizens temporarily staying in the Russian Federation - to be registered at the place of stay.
Foreign citizens enjoy the right to freely dispose of their abilities for work, choose the type of activity and profession, as well as the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, subject to the restrictions provided for by the federal law Zvonenko D.P., Malumov A.Yu., Malumov G.Yu. Administrative Law: Textbook. - "Yusticinform", 2007.
At the same time, a foreign citizen has the right to carry out labor activities in the presence of a work permit. Such permission is not required for foreign citizens Rozhdestvin A.A. Commentary to the Federal Law of July 25, 2002 N 115-FZ "On the legal status of foreign citizens in the Russian Federation" - New Legal Culture LLC, 2006:
Permanently residing in the Russian Federation;
Members of the State Program to Assist Voluntary Resettlement to the Russian Federation of Compatriots Living Abroad and Their Family Members Relocating Together with Them to the Russian Federation;
Those who are employees of diplomatic missions, employees of consular offices of foreign states in the Russian Federation, employees of international organizations, as well as private domestic workers of these persons;
Being employees of foreign legal entities (manufacturers or suppliers) performing installation (supervised) work, service and warranty services, as well as post-warranty repairs of technical equipment supplied to the Russian Federation;
who are journalists accredited in the Russian Federation;
Studying in the Russian Federation in educational institutions of vocational education and performing work (providing services) during the holidays;
Studying in the Russian Federation in educational institutions of vocational education and working in their free time as teaching and support staff in those educational institutions in which they study;
Invited to the Russian Federation as teachers to conduct classes in educational institutions, with the exception of persons entering the Russian Federation to engage in teaching activities in institutions of professional religious education (spiritual educational institutions).
At the same time, a foreign citizen temporarily residing in the Russian Federation is not entitled to work outside the boundaries of the subject of the Russian Federation, on the territory of which he was issued a work permit, and a foreign citizen temporarily residing in the Russian Federation - outside the boundaries of the subject of the Russian Federation, on the territory of which he is allowed temporary accommodation Rozhdestvin A.A. Commentary to the Federal Law of July 25, 2002 N 115-FZ "On the legal status of foreign citizens in the Russian Federation" - New Legal Culture LLC, 2006.
Decree of the Government of the Russian Federation of February 17, 2007 No. 97 “On establishing cases of employment by a foreign citizen or stateless person temporarily staying (living) in the Russian Federation, outside the subject of the Russian Federation, on the territory of which they were issued a work permit (allowed temporary residence)" establishes that a foreign citizen temporarily staying and temporarily residing in the Russian Federation has the right to carry out labor activities outside the boundaries of the constituent entity of the Russian Federation, on the territory of which he was issued a work permit or a temporary residence permit, respectively, in the event of being sent on a business trip, as well as in the event that the permanent work is carried out by the employee on the road or is traveling in nature and this is determined by him employment contract. At the same time, restrictions were established on the duration of labor activity outside the specified subject of the Russian Federation. Kozlov Yu.M., D.M. Ovsyanko, L.L. Popov. Administrative law. / Statute, M. - 2008..
The employer and the customer of works (services) have the right to attract and use foreign workers only if they have permission to attract and use foreign workers. However, foreign citizens who arrived in the Russian Federation in a manner that does not require a visa and who have a work permit can be attracted and used to carry out labor activities without obtaining a permit to attract and use foreign workers, but with mandatory notification of such attraction and use of the territorial body of the federal executive body in the field of migration and the executive body in charge of employment issues in the relevant subject of the Russian Federation. At the same time, a foreign citizen temporarily staying in the Russian Federation is not entitled to carry out labor activities outside the boundaries of the subject of the Russian Federation, on the territory of which he was issued a work permit Dmitriev Yu.A., Polyansky I.A., Trofimov E.V. Administrative Law of the Russian Federation: Textbook for Law Schools. - System GARANT, 2008. Russian Federation"On the establishment of lists of professions (positions) and work in the performance of which a foreign citizen or stateless person temporarily staying (residing) in the Russian Federation, in cases established by the government of the Russian Federation, has the right to work outside the boundaries of the subject of the Russian Federation, on the territory whom they have been issued a work permit (temporary residence permit).
The difficult situation with illegal labor migration that has developed in Russia should be noted. This problem is one of the most important, if not the most important issue in the field of migration, which requires clear and targeted measures and the most effective regulatory settlement, changes in public policy Russia in this area. It should also be noted that recent changes in the federal legislation in the field of migration, in particular changes in the system of migration registration of foreign citizens, the introduction of the so-called information procedure for migration registration have shown that the state is taking steps to resolve this issue. In our opinion, this issue will not be resolved only by a clear regulatory settlement of the legal status of foreign citizens. It must be assumed that the attitude of the same foreign citizens to “bureaucratic red tape” should be changed, the outlook on this issue should change, because before the change in legislation it was practically impossible for a foreign citizen, for example, to obtain registration at the place of stay on time, in compliance with all the rule of law and this made it possible for “not clean hands” subjects to use this problem for selfish purposes. Now more or less acceptable conditions have been created, which in the future can serve as the basis for a radical revision and improvement of migration policy, as well as an effective fight, and ultimately the achievement of the absence of such a phenomenon as illegal migration. Zvonenko D.P., Malumov A.Yu., Malumov G.Yu. Administrative Law: Textbook. - "Yusticinform", 2007 One of the directions of the state's effective activity in this area is the legalization of foreign citizens who have already violated the law. At the request of the leaders of the Federal Migration Service, a draft document is being prepared to implement these goals. Some experts believe that one of the serious reasons for illegal labor migration is the problem of housing, that is, the lack of sufficiently cheap housing for people who come here to earn money. In some countries, this problem is solved by creating special settlements. Igor Yunash, Deputy Director of the Federal Migration Service, commented on this issue: “Both abroad and in our country, the picture is approximately the same. One of the few exceptions is Germany, where such settlements do exist. But the general practice is this: housing is the concern of the employee and the employer. The state is not responsible for business. But now we have a lot of people who are trying to solve this problem in an organized manner. We have already been approached by several structures that offer to create something like migration exchanges or migration centers, where a citizen who wants to work in the Russian Federation could come and settle. There will be representatives of the migration service, passport. Medical and other services may be provided. Structures could also work there, which, if necessary, will find a job for a person. Such centers are proposed to be established first in those settlements, where there is special need in the labor force. But it will private business, an initiative of individuals or organizations. But not the state. Russian newspaper(Federal issue) N3658 of December 18, 2004. However, in some countries, such as Italy, we can see that the best way out out of this situation is just every possible encouragement of the creation of cheap hotels. And not especially for foreigners. At the first stage, internal migrants also need cheap housing. Students can also stay there. At the same time, the problem of providing housing should by no means be elevated to the state level. This, as already noted, should be an initiative of business, individuals.
In accordance with Article 14 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”, a foreign citizen is not entitled to be a member of the crew of a warship of the Russian Federation or another ship operated for non-commercial purposes, as well as aircraft state or experimental aviation, aircraft commander civil aviation Zvonenko D.P., Malumov A.Yu., Malumov G.Yu. Administrative Law: Textbook. - "Yusticinform", 2007.
Article 56 of the Code of Merchant Shipping of the Russian Federation prohibits foreign citizens from replacing in the crew of a ship sailing under State flag of the Russian Federation, the positions of ship's captain, senior assistant to the ship's captain, chief engineer and radio specialist.
A foreign citizen is not entitled to be employed at facilities and organizations whose activities are related to ensuring the security of the Russian Federation. Among such facilities and organizations, Decree of the Government of the Russian Federation of October 11, 2002 No. 755 “On approval of the list of facilities and organizations in which foreign citizens do not have the right to be employed” includes facilities and organizations of the Armed Forces of the Russian Federation, other troops and military formations, structural subdivisions for the protection of state secrets and subdivisions that carry out work related to the use of information constituting a state secret, state authorities and organizations, as well as organizations that include hazardous radiation and nuclear hazardous production facilities and facilities where development is carried out , production, operation, storage, transportation and disposal of nuclear weapons, radiation hazardous materials and products. Zvonenko D.P., Malumov A.Yu., Malumov G.Yu. Administrative Law: Textbook. - "Yusticinform", 2007
Responsibility for health insurance. In accordance with the Law of the Russian Federation dated June 28, 1991 No. 1499-1 "On medical insurance of citizens in the Russian Federation", foreign citizens temporarily staying in the Russian Federation must be insured under the system health insurance.
The special requirement of health insurance does not apply to foreign citizens:
Living in the Russian Federation for a total of more than 183 days in a calendar year;
Working in the Russian Federation under employment contracts;
Being on business trips in foreign diplomatic missions, consular offices, international organizations accredited by the Ministry of Foreign Affairs of the Russian Federation;
Those staying in the Russian Federation on an official visit;
Those who are in the Russian Federation at the invitation of employees of foreign diplomatic missions, consular offices and international organizations accredited with the Ministry of Foreign Affairs of the Russian Federation;
Those who have the right to free medical care (including medical and transport services) in accordance with international treaties of the Russian Federation.
In relation to the said foreign citizens legislative acts Russian Federation are applied in the generally established order Kozlov Yu.M., D.M. Ovsyanko, L.L. Popov. Administrative law. / Statute, M. - 2008..
Medical insurance of foreign citizens temporarily staying in the Russian Federation provides for the provision of medical assistance to them, including medical and transport services. The scope of medical care for insured foreign citizens should include at least:
Medical assistance provided by stations (departments, points) of emergency medical care;
Medical care in outpatient and inpatient medical institutions in case of a sudden health disorder and accidents to the extent necessary to eliminate the threat to the patient's life and (or) relieve acute pain;
Transportation by medical transport or other vehicle, including medical support (medical team, doctor, nurse), from the place of illness (incident) to a medical institution;
Posthumous repatriation (transportation) of the remains.
Speaking about the rights and obligations of foreign citizens and stateless persons, it should be noted that the Constitution provides these persons with national treatment. This is indicated in Part 3 of Art. 62 of the Constitution of the Russian Federation, as well as in Part 2 of Art. 2 of the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation", which states that foreign citizens and stateless persons enjoy the rights and bear obligations on an equal basis with citizens of the Russian Federation, except for cases established by federal law or an international treaty of the Russian Federation. These are exactly the cases discussed above. Meanwhile, this national regime is not always observed by the state authorities of the Russian Federation. Often, the possibility of exercising certain rights is made dependent on the citizenship of a person. This phenomenon is non-legal and must be eradicated. This is intended to be promoted administrative regulations public authorities. In addition, in our opinion, it would be necessary to establish the responsibility of officials of state and municipal authorities for violation and infringement of the rights of persons who do not have Russian citizenship. Thus, an article should be introduced into the Code of Administrative Offenses of the Russian Federation, in Chapter 5, according to which the violation of the rights and freedoms of foreign citizens and stateless persons, obstruction in the exercise of their rights by an official of a state or municipal authority entails the imposition of an administrative fine on officials persons in the amount of thirty to fifty thousand rubles.
We also believe that it is necessary to introduce an article into Chapter 19 of the Criminal Code of the Russian Federation “Crimes against the Constitutional Rights and Freedoms of Man and Citizen”, according to which the violation of the rights and freedoms of foreign citizens and stateless persons, obstruction in the exercise of their rights, by an official of a state or municipal body authorities, if this caused significant damage, should be punished by imprisonment for a certain period, or a less severe punishment.
foreign citizenship deportation administrative
I Introduction
II. Basic rights, freedoms and obligations of foreign citizens and stateless persons in the Russian Federation
III. Entry, exit and transit through the territory of the Russian Federation of foreign citizens
IV. Liability of foreign citizens. Reducing the length of stay. expulsion
Conclusion
Bibliography
I. Introduction.
Foreign citizens in the Russian Federation are recognized as persons who are not citizens of Russia and who have evidence of their belonging to the citizenship of a foreign state.
Persons without citizenship in the Russian Federation are persons who do not have the citizenship of any state. Statelessness can be absolute or relative. Absolute statelessness - statelessness from the moment of birth. Relative statelessness is statelessness resulting from the loss of citizenship. The law on Russian citizenship establishes that a child of stateless persons born on the territory of Russia is a citizen of Russia. Legislation determines which documents and facts can serve as evidence of a person's citizenship of a particular state. According to the law on citizenship of Russia of November 29, 1991, a document confirming citizenship is, first of all, a passport, and before receiving it, a birth certificate. Another document containing an indication of the citizenship of the person may also serve as evidence. In the absence of documents confirming citizenship, or doubts about the correctness of their issuance, Russia has established an administrative procedure for the so-called clarification of citizenship.
In accordance with the Constitution of the Russian Federation, foreign citizens and stateless persons in the Russian Federation are guaranteed the rights and freedoms provided for by law.
They enjoy the same rights and freedoms and bear the same obligations as citizens of the Russian Federation, unless otherwise follows from the Constitution of the Russian Federation and other acts of Russian legislation. Foreign citizens and stateless persons in the Russian Federation are equal before the law, regardless of origin, social and property status, race and nationality, gender, education, language, attitude to religion, type and nature of occupation and other circumstances. The use of rights and freedoms by foreign citizens and stateless persons must not harm the interests of Russian society and the state, the rights and legitimate interests of citizens of the Russian Federation and other persons.
Foreign citizens and stateless persons staying in the Russian Federation are obliged to respect the Constitution of the Russian Federation and comply with Russian laws.
Foreign citizens can permanently reside in the Russian Federation if they have a permit and a residence permit issued by the internal affairs authorities.
Foreign citizens staying in Russia on a different legal basis are considered to be temporarily staying in the Russian Federation. They are required to register their foreign passports or documents replacing them and leave the Russian Federation after the period of stay determined by him.
The Russian Federation grants political asylum to foreign citizens and stateless persons in accordance with generally recognized norms international law.
II. Basic rights, freedoms and obligations of foreign citizens and stateless persons in the Russian Federation.
Foreign citizens permanently residing in the Russian Federation may work as workers and employees at enterprises, institutions and organizations or engage in other labor activities on the grounds and in the manner established for citizens of Russia.
And temporary residents can engage in labor activities in the Russian Federation, if this is compatible with the goals of their stay in Russia.
Foreign citizens cannot be appointed to certain positions or engage in certain labor activities if, in accordance with Russian law, appointment to these positions or engagement in such activities is associated with belonging to the citizenship of the Russian Federation.
Foreign citizens and stateless persons enjoy the rights and bear obligations in labor relations on a par with citizens of the Russian Federation, and also have the right to rest on a common basis with citizens of the Russian Federation.
Foreign citizens and stateless persons in the Russian Federation have the right to health care.
Foreign citizens permanently residing in the Russian Federation use medical care on an equal basis with Russian citizens.
And foreign citizens temporarily staying in the Russian Federation health care is in the order established by the Ministry of Health of the Russian Federation.
In social security, foreign citizens permanently residing in the Russian Federation are entitled to receive benefits, pensions and other forms of social security on the same basis as citizens of the Russian Federation; and temporarily staying have the right to receive benefits, pensions and other forms of social security on the grounds and in the manner established by the legislation of the Russian Federation.
In cases where a certain length of service is required for the assignment of pensions, foreign citizens, on the grounds and in the manner established by the legislation of the Russian Federation, may be counted in this length of service of their work abroad.
In the housing sector, foreign citizens and stateless persons permanently residing in the Russian Federation have the right, on the grounds and in the manner established for citizens of the Russian Federation, to receive residential premises for use in the houses of the state and public housing stock, housing construction cooperatives. They must carefully treat the housing provided to them, observe the rules for the use of residential premises.
Foreign citizens and stateless persons may, in accordance with Russian law, own a residential building and other property in the Russian Federation in their personal ownership, inherit and bequeath property, have the rights of the author of a work of science, literature and art, a discovery, invention, rationalization proposal, industrial design, and as well as other property and personal non-property rights.
Foreign citizens and stateless persons have the right to receive education on an equal footing with citizens of the Russian Federation in accordance with the procedure established by the legislation of the Russian Federation. And if they are accepted into Russian educational establishments, then they have the rights and obligations of students and students in accordance with Russian law.
Foreign citizens and stateless persons have the right to use the achievements of culture on an equal footing with citizens of the Russian Federation. They are obliged to take care of historical and cultural monuments, other cultural property.
They are guaranteed freedom of conscience on an equal footing with the citizens of Russia, and the incitement of enmity and hatred in connection with religious beliefs is prohibited.
In the field of marriage and family, foreign citizens and stateless persons may enter into and dissolve marriages with citizens of the Russian Federation and other persons in accordance with Russian law. They enjoy the rights and bear obligations in marriage and family relations on an equal basis with citizens of the Russian Federation.
Foreign citizens and stateless persons, in accordance with Russian legislation, are guaranteed in the Russian Federation the inviolability of the person and the inviolability of the home, and other personal rights.
"Electronic journal "ABC of law", 07.12.2017
WHAT IS THE LEGAL STATUS OF TEMPORARY STAYING IN THE RUSSIAN FEDERATION?
Temporarily staying in the Russian Federation is a foreign citizen who arrived in the Russian Federation on the basis of a visa or in a manner that does not require a visa, who received a migration card, but does not have a residence permit or temporary residence permit (Article 2 of the Law of July 25, 2002 N 115- FZ).
WITH period of temporary stay on the territory of the Russian Federation
The period of temporary stay of a foreign citizen in the Russian Federation (clause 1, article 5 of Law N 115-FZ):
It is determined by the period of validity of the visa issued to him;
Cannot exceed 90 days (both the total period of stay during each period of 180 days, and continuous stay) for citizens who arrived in the Russian Federation in a manner that does not require a visa;
It is determined by the period of validity of a work permit for a highly qualified specialist and his family members who arrived in the Russian Federation in a manner that does not require a visa.
The period of temporary stay of a foreign citizen in the Russian Federation may be extended or shortened in cases where the conditions have changed or the circumstances in connection with which he was allowed to enter the Russian Federation have ceased to exist (clause 3, article 5 of Law N 115-FZ).
A foreign citizen temporarily staying in the Russian Federation is obliged to leave the Russian Federation after the expiration of the visa or other period of temporary stay established by law or an international treaty of the Russian Federation, with the exception of a number of cases.
Such cases include, in particular, the extension of the validity of a visa or temporary stay, the issuance of new visa, or a temporary residence permit, or a residence permit, or the acceptance of an application and documents required for obtaining a temporary residence permit, or the acceptance of an application for issuing a notice of the possibility of admission to the citizenship of the Russian Federation of a foreign citizen recognized as a native speaker of the Russian language, or an application for issuance residence permit. The specified list of cases is not exhaustive (clause 2, article 5 of Law N 115-FZ).
P rights of those temporarily residing in the Russian Federation
Foreign citizens enjoy rights in the Russian Federation on an equal basis with citizens of the Russian Federation, with the exception of cases provided for by federal law or an international treaty of the Russian Federation (part 3 of article 62 of the Constitution of the Russian Federation; article 4 of Law No. 115-FZ).
Legislation guarantees foreign citizens residing on the territory of the Russian Federation the right to freedom and personal inviolability. A foreign citizen has the right to move freely within the territory of the Russian Federation. The exception is cases when restriction of the right of free movement is required to ensure state security, protection public order, health and morality of the population, protection of the rights and legitimate interests of citizens of the Russian Federation and other persons. Also, in cases established by law, there may be a restriction on freedom of movement by the territory of the subject of the Russian Federation into which entry was made (Article 17 , , , , Part 3 of Article 55 of the Constitution of the Russian Federation; Resolution of the Constitutional Court of the Russian Federation dated 17.02.1998 N 6-P ; clause 1.1, article 11 of Law N 115-FZ).
Foreign citizens have the right to access cultural property and may also participate in cultural life and use cultural institutions (clause 2, article 44 of the Constitution of the Russian Federation).
Foreign citizens, on an equal footing with citizens of the Russian Federation, are guaranteed freedom of conscience and religion, and incitement of hostility and hatred in connection with religious beliefs is prohibited (Article 28, Part 2, Article 29 of the Constitution of the Russian Federation).
In the family sphere, foreign citizens can enter into and dissolve marriages with citizens of the Russian Federation and other persons in accordance with the legislation of the Russian Federation (Article 156, RF IC).
Foreign citizens temporarily staying in the Russian Federation have the right to apply to the court and other government bodies to protect their personal, property, family and other rights (Article 46 of the Constitution of the Russian Federation).
In addition, foreign citizens temporarily staying in the Russian Federation have the right (part 1 of article 20, part 1 of article 23, part 2, 4 of article 35, part 1 of article 44 of the Constitution of the Russian Federation; paragraph 4 of paragraph 1 of article 2, article 18, Civil Code of the Russian Federation; article 13 of Law N 115-FZ):
1) own property;
2) inherit property;
3) independently or jointly with other citizens and organizations to create legal entities;
4) make transactions that do not contradict the law and participate in obligations;
6) have other property and personal non-property rights (for example, the right to life, the right to immunity privacy, personal and family secrets);
7) to participate in labor relations on the basis of an additionally issued permit.
Note. A foreign citizen temporarily staying in the Russian Federation is not entitled to work outside the territory of the constituent entity of the Russian Federation in whose territory he was issued a work permit or patent, as well as by profession (specialty, position, type of labor activity) not specified in the work permit ( clause 4.2 of Art. 13 of Law N 115-FZ).
ABOUT duties of temporary residents of the Russian Federation
Foreign citizens bear obligations on an equal basis with citizens of the Russian Federation, with the exception of cases provided for by federal law or an international treaty of the Russian Federation (part 3 of article 62 of the Constitution of the Russian Federation; article 4 of Law No. 115-FZ).
Foreign citizens staying in the Russian Federation are obliged to comply with the Constitution of the Russian Federation and laws. In particular, foreign citizens and stateless persons are obliged to take care of the preservation of historical and cultural heritage, protect monuments of history and culture (part 2 of article 15, part 3 of article 44 of the Constitution of the Russian Federation).
Temporarily staying in the Russian Federation must, in accordance with the established procedure, notify the territorial body of the Ministry of Internal Affairs of Russia (hereinafter referred to as the territorial body of the Ministry of Internal Affairs of Russia) about the place of their stay, and also leave the Russian Federation after a certain period of stay (clause 20 of the Rules, approved by Decree of the Government of the Russian Federation of 15.01. 2007 N 9; paragraph 2 of article 5 of Law N 115-FZ).
The procedures for migration registration are carried out by the receiving party or a foreign citizen independently (clause 20 of the Rules).
The host party may be citizens of the Russian Federation permanently residing in the Russian Federation, foreign citizens and stateless persons, legal entities, their branches or representative offices where the foreign citizen actually lives or works. A foreign citizen who has arrived at the place of stay presents the receiving party with a passport and a migration card, which is filled out upon entry into the Russian Federation (clause 7, part 1, article 2 of the Law of July 18, 2006 N 109-FZ; clause 26 of the Rules).
If a foreign citizen is staying at a hotel, then the receiving party is the hotel administration, which must, within one working day following the day of the foreigner’s arrival, notify the territorial body of the Ministry of Internal Affairs of Russia about his arrival, as well as perform all necessary actions related to his registration at the place of stay (clause 20 of the Rules).
ABOUT responsibility of temporary residents of the Russian Federation
Foreign citizens temporarily staying in the Russian Federation who are guilty of violating the legislation of the Russian Federation are held liable in accordance with the legislation of the Russian Federation (Article 33 of Law No. 115-FZ).
A foreign citizen is brought to administrative responsibility in case of violation of the rules of entry into the Russian Federation or the regime of stay (residence) in the Russian Federation, expressed, among other things, in violation of the rules of migration registration, movement or the procedure for choosing a place of stay or residence, in failure to fulfill obligations to notify of confirmation of his residence in Russian Federation (Article 18.8 of the Code of Administrative Offenses of the Russian Federation).
Administrative liability is also imposed on foreign citizens who work in the Russian Federation without a work permit or patent or outside the constituent entity of the Russian Federation on the territory of which this foreign citizen was issued a work permit, patent or temporary residence (part 1 of article 18.10 of the Code of Administrative Offenses of the Russian Federation ).
The departure of foreign citizens from the Russian Federation may be restricted if they (Article 28 of the Law of 15.08.1996 N 114-FZ):
1) in accordance with the legislation of the Russian Federation, they are detained on suspicion of committing a crime or brought in as defendants - until a decision is made on the case or until the court verdict enters into legal force;
2) convicted for committing a crime on the territory of the Russian Federation, - until the serving (execution) of the punishment or until the release from punishment, with the exception of foreign citizens or stateless persons who were released on parole from punishment, if they do not have, in accordance with a court decision, material obligations to the injured party;
3) evade the fulfillment of obligations imposed on them by the court - until the fulfillment of obligations or until an agreement is reached by the parties;
4) have not fulfilled the obligations under the legislation of the Russian Federation to pay taxes - until these obligations are fulfilled;
5) brought to administrative responsibility in accordance with the legislation of the Russian Federation for committing an administrative offense on the territory of the Russian Federation - until the execution of the punishment or until the release from punishment.
Introduction In connection with the expansion of international relations of the Russian Federation, the problem of regulating relations, the participants of which are foreign citizens and stateless persons, has become acute. Such relations take place in private international law; and when these persons arrive on the territory of the Russian Federation, they become subjects of Russian law. The basis of their status is determined by constitutional law, guided by the provisions of the Basic Law of the Russian Federation. A foreigner is subject to, as it were, two legal orders: domestic and the state in which he is located. In this duality - the originality of the legal status of a foreigner, whose constitutional status will be further analyzed in detail. Foreign citizens are persons who are not citizens of the Russian Federation and have evidence of their belonging to the citizenship of a foreign state. In this paper, the term "foreigner" is used as adequate to the term "foreign citizen". The position of foreigners is determined primarily by the Constitution of the Russian Federation. Article 62 of the Constitution establishes: “Persons who are not citizens of the Russian Federation and legally located on its territory enjoy the rights and freedoms, and also bear the obligations established by the Constitution, laws and international treaties of the Russian Federation.” Since the Law of the USSR “On the Legal Status of Foreign Citizens in the USSR” dated June 24, 1981 was preserved in Russia for a certain time, some of its provisions should be analyzed, and it should also be noted that the Law “On the Legal Status of Foreign Citizens in the Russian Federation” has already is in the final stages of adoption. Determination of the status of foreign citizens is a very acute problem, often depending on political situation in the world, from the international policy pursued by Russia. Therefore, it is necessary to single out provisions that could not be shaken by the cooling of relations between countries; provisions that would unshakably guard the rights and freedoms of an individual who is on the territory of the Russian Federation and is considered a foreign citizen.
CHAPTER 1. MAIN PROVISIONS
The concept of "foreign citizen"
The basic principle that determines the legal status of foreign citizens and stateless persons in the Russian Federation is enshrined in Art. 62 of the Constitution of the Russian Federation. In accordance with it, these persons enjoy the rights and bear obligations on a par with citizens of the Russian Federation, except for cases established by federal law or an international treaty of the Russian Federation. There is as yet no law of the Russian Federation specifying the legal status of foreign citizens and stateless persons. IN former Union The SSR adopted a law dated July 24, 1981 "On the legal status of foreign citizens in the USSR." It contained general principles their legal status, their fundamental rights, freedoms, duties and responsibilities. Persons who are not citizens of the Russian Federation and who have evidence of their belonging to the citizenship of a foreign state are recognized as foreign citizens. Thus, foreign citizen any natural person who, being in a certain legal relationship with the Russian state, is not its citizen and is a citizen (nationality) of another state, should be considered. However, the term “foreigner” is often used in the literature as a synonym for the term “foreign citizen”. It is believed that both foreign citizens and stateless persons should be considered foreigners. Law of the Russian Federation "On Citizenship of the Russian Federation" under foreign citizen understands a person who has citizenship of a foreign state and does not have citizenship of the Russian Federation, and under stateless person- a person who does not belong to the citizenship of the Russian Federation and does not have evidence of belonging to the citizenship of another state.Cases of dual and multiple citizenship
In modern conditions, the existing inconsistencies between the laws of some states lead to the emergence of persons with dual or even multiple citizenship. For example, if, under Russian law, the marriage of a citizen of the Russian Federation with a person who does not belong to the citizenship of the Russian Federation does not entail a change in citizenship, then under the legislation of a number of Latin American states (Bolivia, Brazil, Peru), a foreign woman who married a citizen of this state, automatically acquires the citizenship of her husband. Therefore, it is appropriate to consider similar cases and determine the status of such persons in Russia. If a person is a citizen of the Russian Federation and at the same time has evidence of belonging to the citizenship of a foreign state, then while in Russia, he cannot be considered a foreigner. Such a person is considered as a citizen of the Russian Federation and is subject to the same legal order that is established for his own citizens. Indeed, according to Art. 11 of the Law "On Citizenship" only those who have the citizenship of a foreign state and do not have the citizenship of the Russian Federation are recognized as a foreign citizen. If a person with dual citizenship is located on the territory of Russia, in whose citizenship he is not, then he should be considered a foreigner. But in this regard, a completely logical question arises as to which of these foreign citizenships must be considered decisive. As you know, there is no direct answer to this question in the current legislation. At the same time, in a number of cases this is of great practical importance, especially when the legislation links certain legal consequences with a person's belonging to a particular citizenship. The legal literature states that a third state may treat a person with dual citizenship as a citizen of any of the states of which he is a citizen. It is believed that in the question of which country's nationality should be given "priority", it is necessary to proceed from which of these countries in Lately a person lived (the so-called principle of closest connection). We can meet a similar approach in the legislation of a number of foreign countries. Thus, according to the Austrian Law on Private International Law, a person who has the citizenship of several foreign states is considered a citizen of the state with which he is more closely connected.The problem of internment
We consider it necessary to briefly touch upon this problem, since, despite the multiple efforts of peacekeeping and humanitarian organizations, the political situation in the world (in some of its regions) is still often unstable, and with the outbreak of an armed conflict, the usual way of life of any state undergoes significant changes. This applies to almost all vital areas of society, which are beginning to work in a special, emergency regime. Such a special war-related regime directly affects the legal status of foreign citizens, and especially citizens of enemy states, as well as citizens of states providing various support to the enemy, located on the territory of the belligerents. Such foreign nationals may be interned. Under internment should be understood as a state-sanctioned temporary restriction of the rights and freedoms of citizens of an enemy state, based on the interests of ensuring the state security of the belligerent. The basis for the internment of citizens of a hostile state may be the potential threat emanating from them to the host state or the desire of the authorities to ensure their personal safety from the consequences of hostilities.CHAPTER 2. THEORETICAL AND PRACTICAL FOUNDATIONS OF THE LEGAL STATUS OF FOREIGN CITIZENS
Classification of foreign citizens by time of stay in the country
The current legislation of Russia distinguishes between foreign citizens permanently residing and temporarily residing in the country. Article 5 of the Law of the USSR of June 24, 1981 "On the Legal Status of Foreign Citizens in the USSR" states that foreign citizens can permanently reside in the country if they have a permit and a residence permit issued by internal affairs bodies. Foreign citizens who are on a different legal basis are considered temporary residents. They are required to register their passports in the prescribed manner and leave the country after a certain period of stay. Belonging to one category or another is of great practical importance, since the scope of the rights and obligations of foreign citizens depends on which category they belong to. The legal status of permanently residing (domiciliated) foreigners is broader than that of foreigners who are only temporarily staying on the territory of the Russian Federation. This applies, for example, to such important issues as labor activity, the use of medical care, the provision of social security. It should be noted, however, that the former legislation classified foreigners in one category or another, depending on the time they spent in the country. The current legislation carries out such a division, guided not by the criterion of the length of stay, but by the legal grounds for the person's stay, the degree of stability of his legal connection with the state. Noting the important practical role of dividing foreign citizens into permanent residents and temporary residents, it should be emphasized that it cannot be considered sufficient, since it does not reflect all the features of their legal status.Classification of foreign citizens on other grounds
In works on constitutional and international law, attempts have already been made to classify foreign citizens on a variety of grounds. An analysis of various points of view on the question of the classification of foreign citizens allows us to draw certain conclusions. It must be remembered that the circumstances affecting the constitutional and legal status of foreign citizens cannot be considered in isolation from each other. In this regard, it seems possible to indicate the following groups of foreigners: - foreign citizens who do not have immunities and privileges; - foreign citizens endowed with certain immunities and privileges; - foreign citizens who have received asylum. The first group includes foreigners permanently residing and temporarily staying in the Russian Federation, who are subject to the jurisdiction of Russia in full, on an equal basis with its own citizens. This group of foreigners is predominant in the Russian Federation, and employees of internal affairs bodies most often encounter it in the course of their professional activities. Since foreigners can stay in Russia for a variety of purposes, it is hardly possible to list everything. These include foreign citizens who arrived in the Russian Federation to work at various joint ventures, foreign students, journalists, athletes, businessmen, artists and many others. The group of foreign citizens with certain immunities and privileges includes employees of diplomatic and consular missions, members of government and parliamentary delegations, employees of intergovernmental organizations and some other persons. Depending on the nature and scope of the privileges and immunities granted, foreign citizens who have them can be divided into the following subgroups: - enjoying full immunity; - enjoying partial immunity. Foreign citizens enjoying complete immunity from the jurisdiction of the Russian Federation include heads of diplomatic missions (in the rank of ambassadors, envoys, chargé d'affaires), members of the diplomatic staff of missions (advisers, trade representatives and their deputies, military attachés and their assistants, first, second and third secretaries, attachés and secretaries-archivists), as well as family members of the heads of diplomatic missions and family members of the diplomatic staff of missions, if they live with the said persons and are not Russian citizens. In addition, they also include representatives of foreign states (heads of state, government, etc.), members of parliamentary and government delegations who come to participate in interstate negotiations and conferences or with other official assignments, as well as representatives of foreign states, the following for the same purposes in transit through the territory of our country, and family members of these persons accompanying them (if they are not citizens of the Russian Federation). This group is joined by employees of some international organizations (UN, CSCE, etc.).Refugees and forced migrants
A separate group of foreign citizens is made up of persons who have received asylum in the Russian Federation. Moreover, we can only talk about those persons (refugees) in respect of whom their state has not taken a decision to deprive them of citizenship or citizenship. The accession of the Russian Federation to the Convention relating to the Status of Refugees (1951) and the Protocol relating to the Status of Refugees (1966) created the need to bring the norms of Russian law into line with the above acts, and the Russian law of February 19, 1993 "On Refugees" regulates the issues of granting asylum already in accordance with the universally recognized norms of international law. The constitutional and legal status of refugees is in many respects similar to the status of foreign citizens who do not have immunities and privileges. Meanwhile, it also has a number of significant features that make it possible to distinguish refugees into a separate group with their own special legal status. First of all, refugees, unlike ordinary foreigners, do not enjoy the diplomatic protection of their own state and are not bound by any obligations with it, although they are formally considered its citizens (subjects). It should be added to the above that, in accordance with the established norms and customs of modern international law, refugees are not subject to extradition on the territory of the state where they may be subjected to persecution, since otherwise the meaning of the right of asylum itself is lost. A refugee is a person who has arrived or wishes to arrive on the territory of the Russian Federation, having citizenship of the Russian Federation, who was forced or intends to leave his place of permanent residence in the territory another state due to violence or other forms of persecution committed against him, or a real risk of being subjected to violence or other persecution on the basis of race or nationality, religion, language, as well as membership in a particular social group or political opinion. Unlike a refugee, the term forced migrant refers, as a rule, to citizens Russian Federation who were forced or have the intention to leave their place of permanent residence on the territory of another state or on the territory of the Russian Federation on the same grounds as a refugee. A forced migrant may also be recognized as a person who does not have the citizenship of the Russian Federation, who left the place of permanent residence on the territory of the Russian Federation, as well as a citizen of the former USSR who lived on the territory of a republic that was part of the USSR, who arrived on the territory of the Russian Federation on the same grounds.CHAPTER 3. Analysis of the constitutional and legal status of foreign citizens
The constitutional legal status in its most general form can be defined as a system of fundamental rights and obligations enshrined by the state in constitutional and other legal acts. The basis that determines the initial element of any status, its main content is the corresponding rights and obligations. Meanwhile, such phenomena of legal reality as citizenship, legal capacity and guarantees, in a certain sense, are not among the elements of the constitutional and legal status of foreign citizens, have an important, and sometimes decisive, influence on its regulation and implementation. The remaining elements mentioned in the legal literature (responsibility, legitimate interests, etc.) are hardly appropriate to include in this structure, since they are either a derivative, generalizing characteristic of the already named components, or do not have a noticeable impact on the constitutional legal status foreign citizens.Citizenship
If you follow this path, then you must first turn to citizenship, since it is an objective factor, an important prerequisite for extending to an individual the whole complex of rights and obligations that exist in the state. It must be borne in mind that a foreigner is a person who is a citizen of a particular foreign state, which in some cases is of direct importance for establishing one or another scope of rights and obligations of foreigners in the Russian Federation. In support of the above, one can refer to the current legislation. So, in paragraph 3 of Art. 2 of the USSR Law "On the Legal Status of Foreign Citizens in the USSR" establishes that the legal status of foreign citizens can also be determined on the basis of international treaties, and paragraph 3 of Art. 3 of the same law provides for the possibility of establishing retaliatory restrictions (retortions) against citizens of those states in which there are special restrictions on the rights and freedoms of our citizens.Legal capacity
As for legal capacity, it is known to be an important legal property of any individual subject of constitutional (state) law. Therefore, the constitutional legal capacity of foreigners predetermines the possession of basic rights and obligations of this category of persons. It is universal, equal and inalienable for any foreign citizen. At the same time, the legal capacity of domestic and foreign citizens has natural differences due to the nature of their legal relationship with the state. These differences are manifested, for example, in the fact that the constitutional legal capacity of a foreigner arises from the moment when he enters into specific legal relations with a state of which he is not a citizen. According to many authors, the most developed and appropriate from a theoretical and practical point of view is the classification of fundamental rights and obligations according to their social purpose. The fact is that with all the variety of classifications, all of them, with some amendments, ultimately proceed from the social purpose of rights and duties. This criterion is also widely used in international legal documents (International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights, etc.). Thus, all the basic rights and obligations of foreign citizens can be conditionally divided into: - personal (civilian); - political; - socio-economic. It should be emphasized that the rights of foreign citizens in the Russian Federation cannot be restricted on the grounds of race, nationality, language, social origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. And any kind of restrictions on the rights of foreigners, established by their national legislation for these reasons, are not recognized and cannot be applied on the territory of our state.Rights and obligations of foreign citizens
All foreign citizens enjoy equal protection from the Russian state in relation to their personal rights (inviolability of the person and home, freedom of conscience, etc.), as well as economic, social and cultural rights, if they are provided for non-citizens (the right to economic activity and private property , pond activities, recreation, health protection, social security education, participation in public organizations, use of cultural achievements, etc.). But they are deprived of those rights, mainly from the political category, which, according to the Russian Constitution and laws, are granted only to citizens of Russia (holding certain public positions, participating in political parties, the right to elect and be elected to government bodies, participation in referendums, etc.). A foreign citizen has the right to protect his rights by all means provided for by the Constitution of the Russian Federation, including the right to apply to the court. The same principle underlies the determination of the duties of foreign citizens. These citizens do not perform military service in the Armed Forces of the Russian Federation (according to the Constitution of the Russian Federation, this is the duty of only citizens of Russia), but they are subject to the constitutional obligation to pay legally established taxes and fees, preserve nature and environment , take care of natural resources, protect historical and cultural monuments. Foreign citizens are obliged to respect the Constitution of the Russian Federation and comply with the laws in force on the territory of Russia, and foreign citizens who have committed crimes, administrative or other offenses on the territory of Russia, are liable on the same basis as Russian citizens. Foreign citizens in the Russian Federation are equal before the law regardless of any conditions. The exercise of their rights and freedoms must not prejudice the interests of the Russian Federation, the legitimate interests of citizens of the Russian Federation and other persons. Foreign citizens are obliged to observe the Constitution of the Russian Federation and its legislation. Foreign citizens permanently residing in the Russian Federation may work as workers and employees or engage in other labor activities on a common basis with citizens of the Russian Federation. They have the right to rest, health protection, allowances, pensions and other forms of social security, the use of residential premises, the ownership of a residential building and other property, education, and the use of cultural achievements. Foreign citizens permanently residing in the Russian Federation may join trade unions, cooperative, stock, scientific, cultural, sports and other public associations, if this does not contradict their charters. Along with citizens of the Russian Federation, they are guaranteed freedom of conscience, inviolability of the person and home. They may enter into and dissolve marriages with citizens of the Russian Federation and other persons. Foreign citizens in the Russian Federation cannot elect and be elected to elected state bodies, hold public office, and also participate in popular votes (referendums). They do not have the duty of military service in the ranks of the Armed Forces of the Russian Federation. The movement of foreign citizens across the territory of the Russian Federation and the choice of place of residence in the manner prescribed by law, as well as the relevant international treaties of the Russian Federation, are allowed. However, in the interests of ensuring state security and protecting public order, restrictions may be imposed on their movement and choice of place of residence. Subject to the rules established by law, foreign citizens may enter the Russian Federation and leave it. Foreign citizens who have committed crimes, administrative or other offenses on the territory of the Russian Federation shall be liable on the same basis as citizens of the Russian Federation. Those of them who violate the legislation on the legal status of foreign citizens may have their stay in the Russian Federation reduced.Restrictions on rights
It is worth noting that the exemptions from the rights of foreign citizens established in the past in the legislation were not numerous, and they can be reduced to two groups. To the first group include exceptions regarding the possibility for foreigners to hold certain positions or engage in certain activities on an equal footing with our citizens. According to clause 7 of the Regulations on the Protection of Fish Stocks and on the Regulation of Fishing in the Waters of the USSR of September 15, 1958, foreign citizens and legal entities are prohibited from engaging in commercial production of fish and other aquatic animals and plants in the waters of the USSR, with the exception of cases provided for by agreements of the USSR with foreign states. In accordance with Art. 16 of the Law of the USSR on the state border of the USSR of November 24, 1982, fishing, research and prospecting activities of foreign ships in the territorial and internal waters of the USSR are prohibited. In accordance with the Decree “On the Economic Zone of the USSR” of the Presidium of the Supreme Soviet of the USSR dated February 28, 1984, fishing and other living resources in the economic zone of the USSR can be carried out by foreign legal entities and individuals only on the basis of international treaties or other agreements between the USSR and the relevant foreign state. second group exceptions are the rules that establish a special regime of the rights of foreigners, determined by the nature of the protected rights, the peculiarities of their legal nature. Thus, due to the territorial nature of copyright (according to Article 5 of the Law on Copyright and Related Rights), the national regime for the copyright of foreigners is established in relation to works published on the territory of the Russian Federation or unpublished, but located on the territory of the Russian Federation in some objective form. In relation to other works by foreigners, copyright is recognized in accordance with international treaties of the Russian Federation (see Chapter 12).legal capacity
The legislation also contains special rules regarding the legal capacity of individuals, which is understood as the ability to perform certain actions, to assume certain obligations. Conflict issues of legal capacity of an individual arise primarily due to the fact that the laws different countries not always equally determine the age at which a person reaches adulthood and thereby becomes fully capable. As in many countries of continental Europe, our law proceeds in matters of legal capacity from the principle lex patriae. According to the Fundamentals of Civil Legislation, “civil capacity of a foreign citizen is determined by the law of the country of which he is a citizen” (Part 2, Article 160). This is the general rule regarding the legal capacity of foreigners. Along with this, the law also provides for some special rules. The civil capacity of a stateless person is determined by the law of the country in which he has a permanent place of residence (part 3 of article 160). The civil capacity of foreign citizens and stateless persons in relation to transactions made in the Russian Federation and obligations arising from the infliction of harm in the Russian Federation is determined by Russian law(part 4 of article 160). Thus, parts 3 and 4 of Art. 160 of the Fundamentals of Civil Legislation contain exceptions to the operation of the principle of the personal law of a person in favor of the territorial principle. Foreign citizens and stateless persons permanently residing in the Russian Federation may be recognized in the Russian Federation as legally incompetent or partially legally capable in the manner prescribed by our legislation. In legal aid treaties concluded with other countries, the legal capacity of an individual is usually determined by the law of his nationality. According to the multilateral Convention on Legal Assistance of the CIS Countries of January 22, 1993, the legal capacity of individuals is determined by the legislation of the contracting party of which this person is a citizen (Article 23).Legal regimes for foreign citizens
Within the framework of this issue, of particular importance is the fact that the basic rights and obligations of foreign citizens are largely due to the application of the so-called legal regimes established in the state for foreigners. In this regard, there is a need to understand in more detail the issues related to the essence and content of these regimes. Here the concept of the legal regime itself is of decisive importance. Legal regime is nothing more than a procedure established and controlled by the state for the acquisition and exercise by foreign citizens of certain rights and obligations. In the literature on international and state (constitutional) law, as a rule, they are distinguished in various combinations three types of legal regimes: national, special and most favored nation.1. National treatment
The rules on the rights of foreigners are contained in various international treaties concluded by the Russian Federation with other countries (trade agreements, consular conventions, agreements on legal assistance, taxation, etc.). In these treaties, the equalization of foreigners in rights is fixed either with domestic citizens (granting national treatment), or with citizens of any other state with which an agreement has been concluded on similar conditions (granting most favored nation treatment). Here are some examples from contractual practice. According to the agreement between the USSR and France on trade relations of September 3, 1951, French citizens or legal entities formed in accordance with French law will, in respect of their person and property, enjoy the same favorable treatment as citizens and legal entities of the most favored nation, in the implementation by them directly or through intermediaries of their choice economic activity on the territory of the USSR under the conditions in which this activity is permitted by the legislation of the USSR (Article 4). The national treatment enshrined in the legislation in relation to the civil legal capacity of foreigners is unconditional, that is, it is granted to a foreigner in each specific case without the requirement of reciprocity. It is known that when talking about national regime, they usually correlate the legal status of foreign citizens with the status of their own citizens. However, foreigners are almost never completely equalized with their own citizens in terms of rights and obligations, i.e. the scope of their legal status is in any case somewhat less. There are also a number of stateless persons in Russia. These include persons residing on the territory of the Russian Federation who are not citizens of the Russian Federation and do not have evidence of their belonging to foreign citizenship. According to the Fundamentals of Civil Legislation (Article 160), stateless persons in Russia enjoy civil legal capacity on an equal basis with our citizens. Individual exemptions may be established by legislative acts. Thus, in relation to stateless persons, regardless of whether they live in the Russian Federation or not, the principle of national treatment applies.2. Special mode
Obviously, in addition to the national regime, there is another regime called special, which provides for special rules for the treatment of foreigners. At the same time, it should be taken into account that the essence of the special regime is to establish not only restrictions, but also certain benefits provided by the state to foreigners. If we dwell in more detail on the issue of benefits that the state establishes for foreign citizens, it can be noted that citizens of certain states can, on the basis of reciprocity, be fully or partially exempted from paying income tax. The current state of affairs in this matter has changed somewhat. This is due to the fact that our state, for obvious reasons, seeks to speed up the flow of foreign investment, experience and modern technologies into the country's economy. Therefore, various benefits are established for foreign investors in the field of tax and customs taxation, currency control. In addition, in order to maximize the potential of foreign investors, it is planned to create free economic zones (free enterprise zones), which provide additional benefits.3. Most favored nation treatment
As noted, the legal literature also mentions the so-called most favored nation treatment. It means granting to foreigners the rights that citizens of any third country already enjoy or will enjoy. Special mention should also be made of the fact that the types of legal regime we have named usually do not apply to foreigners who enjoy privileges and immunities by the nature of their official activity. At present, the national regime is widespread, and its application in Russia is unconditional, i.e. it is granted to foreign citizens regardless of whether our citizens have similar rights in their countries. At the same time, it should be recognized that the current legislation still provides for the possibility of using retaliatory restrictive measures, the so-called retortions. But their application is possible only in cases where there is clear discrimination against Russian citizens in foreign countries. However, in modern conditions, retortion measures are rare and exceptional. An example from everyday life is the situation with Baltic countries, where the attitude towards the citizens of Russia does not withstand any criticism from the point of view of respect for human rights. However, as far as we know, no retortion measures are applied to the citizens of Estonia, Lithuania and Latvia, who are on the territory of the Russian Federation. Should this question be revisited?Limits of application of national treatment
As for the boundaries of the application of the national regime, they become almost transparent in the field of personal rights and obligations of foreign citizens. Therefore, it is no coincidence that foreigners enjoy almost all the rights on an equal footing with Russian citizens. This is the right to life, the right to liberty and security of person, and so on. They belong to the individual as a member of civil society, and therefore their own citizens and foreigners possess them. Civil, labor, family and other relations regulated by private law have practically no restrictions. In the sphere of personal rights for foreigners, the state establishes only some restrictions on freedom of movement and choice of place of residence, which in principle corresponds to the norms of international law and international practice. With regard to socio-economic and political rights, the operation of national treatment does not have such a wide application. This is due to the fact that the implementation of some of them provides for more significant restrictions for foreign citizens. In the field of political rights, these restrictions, in particular, affect the system of electoral rights and the right to membership in political parties. These rights are associated with participation in the political life of the state, in the management of state affairs, and therefore foreign citizens cannot claim to possess them. This practice is typical for most countries of the world. In turn, in the sphere of socio-economic rights, there are restrictions on certain types of labor and commercial activities of foreign citizens. There are various explanations in the literature for the need for such restrictions (considerations of state security, special economic interests of the state, ensuring the sovereign rights of the state to national Natural resources(as indicated in the example of the "Regulations on the protection of fish stocks and on the regulation of fisheries in water bodies") and some others). It must be admitted that in recent times, largely under the pressure of growing economic problems and the need to attract foreign investment, technology and experience to the country's economy, there are examples of reducing restrictions on certain types of labor activity of foreign citizens. At the same time, an analysis of the current legislation shows that these restrictions are still quite widespread. This situation can also be explained by the fact that reinsurance stereotypes continue to operate in many cases. Apparently, the determining criterion in this area should be the criterion of the maximum possible approximation to the national regime, but not excluding the establishment in a number of cases of a permitting (licensed) system of admission.CHAPTER 4. THE SPECIFICITY OF THE SITUATION IN THE IRKUTSK REGION
Here are some actual data: in the region there are 2 checkpoints through state border RF at the airports of Irkutsk and Bratsk, Irkutsk border veterinary checkpoint with railway at st. Irkutsk - passenger and Irkutsk - sorting. The main migration flows of the population: for the purpose of tourism - about 20 thousand foreign citizens and 30 thousand Russian citizens who travel abroad annually, about 1000 people per year of internally displaced persons arriving in an unorganized manner; about 2000 foreign students.Problems of illegal migration
Not so long ago (in 1997), for example, Chinese law enforcement officials stated that half of Chinese citizens have false passports, which is an important condition for illegal migration. At the same time, they cannot cope with this phenomenon on their own and therefore turn to the International Service for Combating Illegal Migration for help to resolve this problem. Since then, about two years have passed. However, judging by the number of identified Chinese citizens illegally staying in the territory of the Irkutsk region, this problem has not been properly resolved. If we consider various aspects of illegal migration, then this phenomenon, first of all, must be divided into three components: First, illegal border crossing with forged documents (passports, visas), or without presenting any documents at all outside the laws of one or another other country of places of production of customs clearance; Secondly, outwardly legal entry into the territory of a particular country and subsequently not to leave within the established time limits; thirdly, outwardly legal border crossing (for example, tourist visas, for study), with the subsequent use of their status for illegal labor activity; migration to a third country; conducting criminal activities, for example, committing acquisitive crimes against their compatriots. With regard to Russia, and in particular to Irkutsk region, it is necessary to highlight the following issues that require immediate resolution: - illegal migration to Russia of foreign citizens from the countries of the Asian region; –– illegal migration to Russia of citizens of the former republics USSR; –– illegal migration of Russian citizens to foreign countries. Recently, the volume of illegal migration to Russia of citizens from the countries of the Asian region has significantly increased. First of all, this concerns China, North Korea, Vietnam, Mongolia, and secondly - Afghanistan, Jordan. For example, okay visa-free entry to the territory of the Irkutsk region only through one of the travel companies (especially in summer time) passes up to 80 Chinese citizens per week. Traveling back is much less. In recent years, the number of "defectors" has increased by more than 20 times and continues to grow. In 1998, 4,528 foreign citizens and 4,679 citizens of the CIS were fined for violating the rules of residence on the territory of the Irkutsk region. For the first half of 1999, respectively, 2,293 and 1,596. In 1998, 1,504 Chinese citizens were forcibly returned to their homeland from the Irkutsk region, for the first half of 1999 - 1,652. According to experts, the population of the Angara region annually grows by 5-7 thousand Human. In 1996, about 1,200 people were registered in the department of external labor migration of the Irkutsk Regional Migration Service, in 1997 - 807, in 1998 - 3014. According to experts, officially registered Chinese workers and workers from the CIS countries are no more than 20 -30% of their real number, however, no one is constantly searching for foreigners illegally staying on the territory of Russia. The main problem associated with the stay of foreign citizens in the Russian Federation is the absence of modern federal legislation that would regulate in detail the procedure for such a stay. The current regulations, adopted back in Soviet times, are hopelessly outdated and do not meet the realities of modern reality. Therefore, practically without exception, the subjects of the Russian Federation, which currently have a certain independence, adopt various temporary regulations and laws on the procedure for the stay of foreign citizens on their territory, which often contradict the current federal legislation. Identification of foreign citizens illegally staying on the territory of the region, in most cases, does not bring any results. Law enforcement agencies cannot detain a foreign citizen for more than 48 hours (Decree of the Constitutional Court of the Russian Federation of February 17, 1998 "On the case of checking the constitutionality of the provision of part 2 of Article 31 of the USSR Law of June 24, 1981" On the legal status of foreign citizens in the USSR "in connection with the complaint of Yahya Dashti Ghafoor"), even if this is required for his further expulsion. The detainee is usually released, imposing a fine on him. The amount of the fine paid by the detained foreign citizen is several times lower than the amount charged travel companies for a visa extension. Thus, it is more profitable for a foreign tourist to pay fines than to officially extend a visa. Even if a decision is made to expel a foreign citizen, the question arises: at whose expense should this be done? Neither law enforcement agencies, nor receiving legal entities, and even more so individuals, as a rule, are not able to pay for this procedure, which includes the cost of a ticket and the costs of the passport and visa service associated with moving the deportee to the railway station or airport, although local law on they have this responsibility. In an attempt to solve this problem, Legislative Assembly of the Irkutsk region, on October 9, 1998, made changes to the law "On the temporary stay of foreign citizens and stateless persons in the territory of the region", which caused shock among employees of organizations that maintain close international ties and some confusion among employees passport and visa area services. The legislators supplemented the local law with a norm on a "guarantee fee", the essence of which is to cover the costs of expelling foreign citizens if necessary. The fee was introduced only in respect of foreign citizens entering on official invitations, while the problems of illegal stay have almost nothing to do with this category of citizens (approximately more than 90% of violators are "tourists"). The massive appearance of the Chinese in the region was so unexpected that at first this problem was overlooked, but in 1993 it became clear that it was necessary to put this issue under control, and the essence of the new course was formulated by Governor Yu. Nozhikov: "As for foreigners .. .we will have a policy of restricting their entry into our region." From the depths of the regional administration, several draft resolutions came out, and when it became clear that they contradicted all-Russian legislation, an appeal was made to the Minister of Foreign Affairs A. Kozyrev demanding decisive measures at the government level. Without waiting for an immediate response, the governor issued a decree "On the stay of foreign citizens in the territory of the region" (December 6, 1994), which determined measures for strict control over the residence and economic activities of foreigners, the system of responsibility of officials. This stimulated a surge in law enforcement activity. Following the example of the Far Eastern neighbors, operations "Foreigner" have been regularly carried out since 1994, with a mass check of the places of residence and economic activity of the Chinese. Dozens, sometimes hundreds of violators are detained. They are fined (and the amounts of fines are ridiculously small), sometimes with difficulty - because there are no funds - deported. The effectiveness of these measures is not great - violators have learned to evade inspections, and the places of losers were immediately occupied by new migrants. Perhaps this softened the tough course, and now the system of entry into the Irkutsk region can be described as a checkpoint. Another problem in the fight against illegal migration is related to the lack of a unified all-Russian system for registering foreigners entering our country. Today, no one can say how many foreigners have left, how many live on the territory of the Russian Federation, including illegally. The figures given in the press are only estimates. It should also be mentioned that recently in many large cities of Eastern Siberia the number of thefts of foreign passports of Chinese tourists has increased significantly. The documents are then sold to the same Chinese illegally in Russia with expired passports who want to return home. A foreign citizen with an expired passport will not be allowed to leave Russia - an exit visa is required. To get it, you need to contact the passport and visa service. However, illegal immigrants prefer to buy a genuine passport in the market, the validity of which has not yet expired, the price of which does not exceed 200 US dollars. As a rule, a new photograph is not pasted into a purchased passport, since for Europeans "all Chinese are the same person." Those whose documents have been stolen also prefer to acquire other people's documents to travel to their homeland. In fact, Chinese citizens thus support criminal groups that specialize in these crimes. As a result, the number of Chinese citizens trying to cross the border in this way is increasing by an average of one and a half times every year. The conducted studies suggest that the reasons for the illegal migration to Russia of citizens from the countries of the Asian region can be combined into two groups. · domestic:- lack of real mechanisms to combat illegal migration, in particular, the imperfection of the current federal and local legislation;
- lack of compulsory insurance and a proper accounting system for foreign citizens entering the territory of Russia;
- insecurity of registration documents for entry into the territory of Russia;
- lack of proper coordination of the actions of Russian and foreign law enforcement agencies;
- a decrease in the volume of Russian industrial production, which contributed to the emergence of free "niches" in the field of entrepreneurial activity;
- favorable environment for conducting illegal business lack of proper control, lack of finances for control, etc.
- incorrect development of the institution of paid educational services (both at the state level and at the private level), which serves as a legal cover for illegal migration;
- corruption of authorities (for example, when the passport and visa service of the Internal Affairs Directorate of the Irkutsk region in Irkutsk checks hotels in which foreign citizens live (mainly citizens of China, Mongolia, Vietnam), in almost all cases the administration of these hotels and foreigners living in them (usually illegally) were warned in advance about upcoming inspections);
- -low standard of living selected countries Asian region;
- – overpopulation in China;
- - Unemployment in selected countries of the Asian region;
- - Stimulation of illegal migration to Russia by the state bodies of a number of countries in the Asian region;
- –– visa-free tourist entry from China.
