School principals from different regions who talked to Civic Assistance complained about being pressured by migration services when it came to admittance or study continuation for children with unsettled migration statuses or no registration (either registration at the place of stay or residence).
This happened to principals in Moscow, Moscow region and Tver. Many non-governmental organizations told us that schools in other regions were facing similar problems. We wrote multiple stories about admission denials and exclusion risks if the refugee family had no registration in Russia or their registration expired. In private talks many school principals confided that there were threatened with fine risks if they admitted a child without registration or official status in Russia.
Sometimes principals specified that migration services warned them about holding them liable under part 3 of Article 18.9 (Violation of rules of stay in Russia for foreign citizens and stateless persons) of the Administrative Code of the Russian Federation) for admitting children without registration or letting them continue studies if their parents’ “legal” stay in Russia expired.
Part 3 of Article 18.9 of the Administrative Code of the Russian Federation says: “Providing an alien or a stateless person, staying in the Russian Federation in violation of the established procedure for, and the rules of, transit across the territory thereof, with living premises or a transport vehicle – involves the imposition of an administrative fine on individuals in the amount of two thousand to four thousand rubles; on officials – from twenty five thousand to thirty thousand rubles; on juridical person – from two hundred and fifty thousand to three hundred thousand rubles.” It’s clear that the sum of 250 – 300 thousand rubles is very substantial for any school, especially if it’s a small educational establishment.
In the summer of 2015 the Civic Assistance Committee described the case of 2 children, both citizens of Uzbekistan, being expelled from a school in Tver. The reason for the exclusion was the unregulated migration status of the children’s mother despite the fact that their father’s papers were in order. Civic Assistance helped the family to appeal the exclusion in court. In the same summer the judge of the Zavolzhsky City District of Tver ruled that the exclusion order was illegal and the children were readmitted to the school.
While undergoing a hearing in court, this case obtained new details of how the school principal cooperated with migration services. According to the court, “On June 10th, 2014 educational establishments in Tver received informational letters from Tver Region FMS with a request to monitor pupils with an unregulated legal status. The letter contained an analysis of the legislative framework for this student category and a warning, that violation of migration regulations would be followed by the establishment being held administratively liable for committing an offence under Part 3.4 of Article 18.9 of the Administrative Code of the Russian Federation.” Meanwhile FMS officers didn’t show up in the court leaving the school principal answerable for the anti-constitutional order of that very school principal. The court also established that the principal’s arguments about issuing the order following recommendations from UFMS were invalid since school administrations do not have the right to assess the legitimacy of foreign citizens’ stay in Russia.”
Thus it’s obvious that school principals are not entitled to exclude children if they believe that they and/or their parents are staying in Russia illegally. More to that, are migration officers in the right to threaten with fines and prosecute principals based on the fact that their schools have pupils with unregulated status or without registration? As you will be able to see below, the answer is a strict no; and even if they do it they are acting unlawfully, anti-constitutionally and against the court’s ruling, including the Supreme Court of the Russian Federation.
On April 21st, 2014 officers from UFMS Rostov region in Volgodonsk run an inspection which “discovers that citizens of Armenia, Mkrtchan Arsen Stepanovich and Mkrtchan Stepan Azizovich are staying at a certain address without any documents proving their right to be on the territory of Russian Federation”.
On April 23rd, 2014 UFMS launch an investigation into MBOU “Staro-Petrovskaya secondary school”, in which Mkrtchan A.S. is a student, suggesting possible administrative violation under Part 3 of Article 18.9 of the Administrative Code of the Russian Federation”.
On June 20th, 2014 “a protocol of administrative violation under Part 3 of Article 18.9 of the Administrative Code of the Russian Federation” is drawn up in the presence of a school representative.
On July 31st, 2014 the acting head of UFMS Rostov region issues a decision to “hold the educational establishment liable under Part 3 of Article 18.9 of the Administrative Code of the Russian Federation”.
First instance court (Arbitral tribunal)
The school principle acted as a true citizen and appealed the decision of the Rostov region UFMS in court which reviewed the case on January 1st, 2015 and ruled “to consider it illegal and to suspend the order of the migration control office of the Federal Migration Service (UFMS) for Rostov Region d/d July 31st, 2014”.
The principal reason for this ruling was the fact that the administrative case prepared by UFMS didn’t provide “enough evidence to prove the administrative violation under Part 3 of Article 18.9 of the Administrative Code of the Russian Federation”. To be more precise, UFMS didn’t prove that the school was in fact obliged to know about the citizenship status of Mkrtchan A.S., let alone about the lack of documents confirming his right to be staying in Russia.
Court of Appeal (The Fifteenth Arbitration Court of Appeal)
UFMS for Rostov Region didn’t stop at this instance and appealed the decision in court, presumably trying to prove that the school was aware of the student’s citizenship and the school’s management didn’t attempt to determine the validity of his stay in Russia. After reviewing the case on April 18th, 2015 the court agrees with UFMS that Mkrtchan A.S. didn’t have any documents proving his right to be in Russia but points out that UFMS didn’t consider a few key moments. Among them:
– the right to receive an education stated in the Constitution of the Russian Federation
– the duty not only to proscribe any form of discrimination in education but also to promote equality of opportunity and treatment for all in education, which is recognized by UNESCO’S Convention against Discrimination in Education and ratified by Russia
– the Federal Law on Education in Russian Federation which says in Article 5, that Russian Federation guarantees the possibility to receive education irrespective of sex, race, nationality, language, origin, financial, social or official status, place of residence, attitude toward religion, personal convictions, membership in public organizations and other circumstances”. Items 1 and 2 of Article 78 define the right of foreign citizens to receive an education in Russia according to international agreements and the right to pre-school education, primary general education, basic general education and secondary (complete) general education”;
– the letter from the Federal Service for Supervision in Education and Science d/d July 24th, 2006 №№ 01-678/07-01 “Of the right to education for children in Russian Federation” which mentions the inadmissibility of “violation of international and Russian legislation by educational establishments”
– Convention on the Rights of the Child ratified by Russia in 1990 in which all Parties recognize the right of the child to education
– The European Convention of Human Rights and Fundamental Freedoms and a number of other legislative acts and enactments
The court concludes that “the establishment was not obligated to demand any documents proving the citizenship status of the child when admitting to school and certainly did not have the legal basis to deny Mkrtchan A.S. admittance into a general educational establishment”. The ruling says that “the decision of the Arbitration Court of Rostov region d/d May 21st, 2015 delivered in the case № А53-19637/2014 shall be upheld, the appeal shall be dismissed.”
Cassation Court #1 (Arbitration Court of the North Caucasian District)
Rostov region UFMS officers appeal this decision as well. But the Arbitration Court of the North Caucasian District basically repeats the arguments of the previous instance and refers to the Constitution of the Russian Federation, the European Convention of Human Rights and Fundamental Freedoms, UNESCO’S Convention against Discrimination in Education and the Federal Law on Education in Russian Federation. The court also points out that the school “did not have the legal basis to deny Mkrtchan A.S. admittance into a general educational establishment”, determines that “the establishment was not obligated to demand any documents proving the citizenship status of the child when admitting to school” and concludes that lower courts “rightfully indicated the absence of the school’s fault in committing the incriminated violation”. The decision d/d July 20th, 2015 says that “The decision of the Rostov region Arbitration Court d/d January 21st, 2015 and the ruling of the Fifteenth Arbitration Court of Appeal d/d March 18th, 2015 in case № А53-19637/2014 shall remain upheld, the cassation appeal shall be dismissed”.
Cassation Court # 2 (Supreme Court of the Russian Federation)
Rostov region UFMS officers appeal the decision in Supreme Court following their anti-constitutional and incomprehensible from a humane point of view wish to deprive children of the right to education and keep threatening schools with fines.
The court returns the appeal back to them, the officers alter the document and have it submitted for consideration. This doesn’t help though, in its short decision d/d January 22nd, the Supreme Court explicitly and irrevocably rules that “the appeal of the Rostov region UFMS shall be dismissed”.
I would like to close up with the following: School principals, don’t be afraid to admit children to school, don’t see skin color, nationality, social standing or migration status. The Constitution of the Russian Federation, European court of Human Rights, the Supreme Court of the Russian Federation and basic humane treatment of children are all on your side. There are no illegal children.
Konstantin Troitskiy, Civic Assistance Committee
Photo by Polina Rukavichkina