In 2017 representatives of the Civic Assistance Committee have regularly encountered incidents where foreign citizens applying for asylum to the migration services in the city of Moscow and Moscow region, were detained by the police before their case was considered. Employees of the migration service called the police to bring charges against the applicants under Article 18.8 of the Code of Administrative Offences of the Russian Federation (violation of the rules on entering the Russia Federation or residing in the Russian Federation by a foreign citizen or a stateless person). In other words, the police take a person seeking asylum in Russia, who often speaks no or little Russian, directly from the offices of the migration services to the police station, where administrative charges are brought against him. The foreign citizen is then sent to court, where a judgement is handed down based on a standard template imposing a fine and sometimes, if the case is heard in the city of Moscow, a deportation order. Subsequently, if the asylum seeker is not deported, he is brave enough to return to the offices of the migration services, and the employees of the migration service do not further impede his asylum application, then after presenting proof of payment of the fine the foreign citizen is given an appointment where his application for asylum or temporary asylum will be considered.
In addition to the cases witnessed directly by employees of the Civic Assistance Committee and accounts from refugees themselves, the pervasiveness of this practice is confirmed by an analysis of court decisions, which are freely available on the official websites of the Lyuberets City Court in Moscow Region, and the Izmailovo District Court in Moscow.
Bringing administrative charges and fines against asylum seekers for the violation of migration rules contravenes Article 31 of the UN Convention Relating to the Status of Refugees. It is also a violation of legal procedures, has a harmful psychological impact, and, if the refugees do not have the resources to pay the fine, may deprive them of the right to asylum and worsen their already difficult material circumstances.
It should be noted that as well as imposing fines, there have been attempts to deport people seeking asylum. This practice, which unfortunately is not uncommon in Russia’s legal and law enforcement systems, is a more serious violation of international obligations and basic humanitarian values than those cases that only involve fines. The Civic Assistance Committee publishes regular reports of deportations to bring this problem to the attention of society and the state, and provide assistance in specific cases. The report below examines the issue of the imposition of fines on asylum seekers, which to date has received little attention from human rights activists and journalists in Russia.
Arrests in the Directorate for Migration Affairs of the Ministry of Interior in Moscow Region.
Until recently applicants for refugee status or temporary asylum were rarely taken to court from the Directorate for Migration Affairs. But the situation changed in May 2017. Between May 22nd and May 31st, four citizens of the Democratic Republic of Congo (DRC) one Moldovan citizen, and three Syrian citizens were transferred from the offices of the migration services to the Lyubertsy City Court. They were detained by police in the Directorate for Migration Affairs for Moscow Region itself. With the exception of one Syrian citizen (whose protocol was incorrectly completed and returned to the police), all of them were charged with administrative offences under Article 18.8 of the Code of Administrative Offences of the Russian Federation and received fines, but were not deported from Russia.
It should be noted that in several of the court rulings against citizens of Syria, Afghanistan, the DRC, Sudan and Yemen (citizens of countries suffering from largescale military conflicts) it is clearly stated that the arrest took place in the offices of the Directorate for Migration Affairs of Moscow Region. In the text of some rulings, however, it simply states that the arrest took place “in the course of verification of the observance of migration legislation.” Given that from the start of the year until the beginning of May only two citizens of the countries listed above were charged with administrative offences under Article 18.8 in the Lyubertsy court, it can be concluded that the majority, if not all, of the dozens of foreign citizens who have appeared in court since May were transferred there from the offices of the migration services. Several of those who received fines were receiving support from the Civic Assistance Committee, and we can state for certain that they were arrested while attempting to apply for asylum.
In June, 24 refugees were arrested and sent to court from the offices of the migration authorities (20 citizens of Syria, four citizens of Afghanistan). In 15 of the decisions of the Lyubertsy City Court it was stated that the arrest took place in the offices of the Directorate of Migration Affairs. In the other cases, as noted above, it is likely that the arrest took place either in the offices of the Directorate, or on the way to it, or in one of the other offices of the migration services of Moscow Region.
In July, the number of cases rose to 28. The Directorate of Migration Affairs of Moscow Oblast was mentioned in the text of 25 court decisions. As before, the majority of these were citizens of Syria (23 individuals), two were citizens of Georgia and one each from Afghanistan, DRC and Ukraine. All those sent to court from the Directorate were fined 5,000 roubles and released, enabling them, after paying the fine, to apply again for asylum, if they could muster the courage to do so.
In August, the Directorate for Migration Affairs was mentioned much more rarely in court decisions. Judges either started using a different standardised text in their rulings that did not mention the Directorate, or they consciously decided not to mention the details of the arrest. At the same time, the number of Syrians taken to the Lyubertsy City Court by the police did not fall. There are known to be 24 such cases. As well as Syrians, citizens of Sudan, Yemen and Afghanistan appeared in court. In total, 32 people from these countries appeared in court, 31 of whom were fined but not deported. One citizen’s case was sent back to the police.
In September, the number of court cases involving administrative charges against refugees fell sharply. We found 6 rulings that mention the Directorate for Migration Affairs of Moscow Region, in four of these rulings the case was closed, as the group of Syrians who appeared in court on September 8th 2017 had already been fined. In a further 9 decisions, involving administrative charges against citizens of Syria, Afghanistan and Nigeria, the Directorate of Migration Affairs is not mentioned. The reduction in the number of cases may be linked to a decline in the number of applications to the migration agency. Foreign citizens seeking asylum, who even previously were reluctant to visit the offices of the migration services, are now openly afraid of going there.
It is not possible to determine the precise number of refugees who have been sent to Lyubertsy City Court from the offices of the migration services of Moscow Oblast. From the end of May to the end of September, a total of 90 citizens from Syria, Afghanistan, DRC and Yemen were fined under Article 18.8. A further ten citizens from these countries were sent to court but no punishment was imposed. In some cases, this was due to mistakes in the preparation of the protocol regarding the administrative violation, in some cases because they had already been fined. The majority of those who were fined were Syrians (80 people). In more than 50 of the court rulings relating to administrative violations, the text mentions that the foreign citizen was detained in the offices of the Directorate for Migration Affairs of Moscow Region. In many other cases there is a high likelihood that the fact that the detention took place in the offices of the migration service was simply not recorded for some reason. The fine typically totalled 5,000 roubles. It is therefore not difficult to calculate that in just four months and one week, employees of the migration service of Moscow region together with the courts fined people seeking refuge from armed conflict and persecution around half a million roubles.
Arrests in the Directorate for Migration Affairs of the Ministry of Interior in the city of Moscow.
Unfortunately, it is not possible to provide even a rough estimate of the number of refugees transferred to court from the Directorate for Migration Affairs in the city of Moscow (located at 32 Kirpichnaya Street). This is because many court decisions are not published on the website of the Izmailovo Regional Court (where those arrested are sent). In those decisions that are published, court employees remove references to the country of origin, dates, and any information enabling one to determine the country of birth of the person charged, or what happened. As a result, some of the published court rulings appear as standardised texts without dates, names, references to country of origin, or the circumstances or place of arrest.
There is a long history of people being arrested and sent to court from the Directorate for Migration Affairs of the city of Moscow, and Civic Assistance Committee employees have witnessed disgraceful cases that illustrate the poor observance of human rights by the agency. However, various outcomes are possible. Refugees who come to the Directorate without valid documents (visa, valid migration card, registration) and do not insist on an appointment are often simply not processed and the police are not called. In some cases, an employee of the migration service has told the applicant that they will not receive refugee status and recommended that they do not waste time applying. If a refugee starts to insist on their right to asylum, then it is likely that the police will be called. The situation is made worse by the fact that judges in the Izmailovo Regional Court do not just issue fines but also include deportation orders in their decisions. Many refugees are terrified of applying to the city migration services. As a result, for some refugees it is more difficult and dangerous to seek asylum in the Directorate for Migration Affairs of the city of Moscow than in Moscow Region.
Why should fines not be imposed on asylum seekers?
The right to asylum is guaranteed by the Universal Declaration of Human Rights, Article 14 of which states: “Every person has the right to seek and to enjoy in other countries asylum from persecution.” The practice of imposing fines prior to granting access to the asylum system is forbidden by Paragraph 1 of Article 31 of the UN Convention Relating to the Status of Refugees. It states that “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who […] enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
There are four basic reasons why the imposition of fines on those applying for asylum is a violation of the right to asylum: 1) conceptual, 2) procedural, 3) psychological, 4) economic.
The conceptual reason relates to the fact that international and Russian law does not allow the host state to deny an individual access to the asylum system because they entered or are present in the country illegally. There are of course no regulations that allow a host state to make an asylum application conditional on the payment of a fine for illegal entry or stay in a country. However, a foreign citizen who applies to the Directorate for Migration Affairs for refugee status or temporary asylum, and instead of being processed is taken by the police to court is a) denied access to the asylum system and b) must pay a fine in order for his application to be considered.
The Procedural reason. Article 31 of the Convention Relating to the Status of Refugees stipulates that in order to avoid a fine, refugees must apply to the authorities without delay and show “good cause” for their illegal entry or presence in the country. However, it is not possible to show good cause unless each case is considered in depth and on an individual basis. In examining an asylum case, the authorities should consider personal reasons that may have prevented the individual from applying to the migration services immediately, and whether it was in principle possible to apply for asylum. This includes questions of the availability and quality of information regarding the procedure for applying for refugee status. As there is no systematic information in Russia on the procedure for receiving refugee status or temporary asylum, and the relevant official pages on the website of the migration services are not even translated into English, understanding the asylum process requires a lot of time.
The psychological reason relates to the fact that the state, which is obliged to provide asylum to refugees, that is, people who have fled persecution, violence and war, instead subjects applicants to further pressure and at times inflicts serious emotional trauma. Refugees, who speak little or no Russian and who are in an unfamiliar or completely alien country are taken to court, instead of being interviewed and informed about their position. In court, refugees cannot be sure that the judge will not order their deportation back to the country they have fled. As a result, this vulnerable group of people is subjected to further psychological pressure and danger by representatives of public bodies that should be protecting them. Even if a deportation order is not served, the refugee will think twice before applying again to the migration services. There is no guarantee that he or she won’t be insulted, ordered to leave the office, or sent to court. As a result, many refugees remain without official status, and as a result without protection from the state.
The economic reason. Refugees are often in a very difficult financial position. They often lack money for food. They are often counting every rouble, and the asylum system is designed in such a way that the applicant does not have the right to work until the migration services recognise him as a refugee or grant temporary asylum. It can take several months for this to happen. As a result, a 5,000 rouble fine often serves as an additional or even the principal reason why refugees lose the right to seek and receive asylum in Russia.
Why are refugees fined in Russia?
There are several interrelated reasons:
The conceptual explanation, based on a specific world view. This relates to how Russian institutions understand the very idea of asylum, and what a refugee is. In the foreword to the “Guidelines on the Process and Criteria for Determining Refugee Status” published by the UN Refugee Agency, the first general principle states that “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” The migration services usually take a fundamentally different approach. This is based on the view that it is the migration services themselves that recognise a refugee as such, and until that moment he or she is not a refugee, but simply a foreign citizen, who, if he is admitted to the asylum process, becomes “a person seeking refugee status,” and only in if his application is successful becomes “a person awarded refugee status.”
The legal explanation follows from the conceptual one and relates to the fact that Russian legislation does not reproduce several provisions in the UN Convention Relating to the Status of Refugees and at the same time contains several provisions that contradict the spirit and letter of the Convention. A detailed analysis of how the norms of the Convention are reflected or not reflected in Russian legislation, and in particular in the Federal law “On Refugees”, is set out in the report “Russia as a Country of Asylum,” published by the Civic Assistance Committee in 2015. Regarding the imposition of fines, it should be noted that (a) Article 31 of the Convention, which stipulates that the state should not “impose penalties, on account of refugees’ illegal entry or presence” is not reflected in Russian legislation; (b) Russian legislation introduces additional definitions of what constitutes a refugee. According to Paragraph 2, Part 1, Article 1 of the Federal law “On Refugees”, a person applying for refugee status is “a person who is not a citizen of the Russian Federation,” and is a foreign citizen or a stateless person, who either wishes to enter or has entered the country (without an indication of their legal status), or is “legally present on the territory of the Russian Federation.” The fact that Article 31 of the Convention Relating to the Status of Refugees is not included in the Federal law “On Refugees” and the reference to “legal” presence in the country raises the risk of malpractice, such as administrative and criminal proceedings for the violation of migration law. However, the fact that there is no reference to this article in national legislation does not mean that it can be breached.
The structural explanation. There are many aspects to this. It reflects the lack of employees in migration services, the fact that regional managers off the migration services tend to report to the heads of regional offices of the Ministry of Interior rather than the Main Directorate for Migration Affairs, and many other issues. The most significant of these is the decision in 2014 to abolish the Federal Migration Service (FMS) and to transfer responsibility for handling refugees to the Ministry of Interior. As a result, the responsibility for providing social support, international protection, and integrating foreign citizens was entrusted to a state institution which is focused on maintaining order within the country, that is the Ministry of Internal Affairs. Moreover, the ministry is focused on investigating crimes and bringing charges against people, and not providing legal, social and humanitarian support. It is not surprising that instead of considering the international and humanitarian reasons why a refugee cannot return to his country of origin and needs additional protection, the migration services and the police, which are part of a single security service, work in tandem and are more concerned with finding a reason to bring administrative or criminal changes against the refugees. Needless to say, this does not excuse the illegal and repressive actions of employees of the migration services.
Protection from fines
Lawyers working with the Civic Assistance Committee are currently contesting several cases where refugees have been sent to court after applying to the migration services.
As well as appealing against verdicts that have already been handed down, employees of the Committee have sometimes succeeded in preventing the detention of refugees when they apply for asylum. This is only possible in cases where our employees accompany the applicant to the migration offices. However, even when lawyers and witnesses are present, employees of the migration services often do not miss the opportunity to cause a scandal.
For example, one month ago, employees of the Civic Assistance Committee were involved in an shameful but relatively typical case involving an attempt to apply for refugee status or temporary asylum in the Directorate of Migration Affairs of the city of Moscow. In this case ,a minor from Guinea accompanied by a lawyer, a consultant on migration issues for the Committee, and an employee of a rehabilitation centre, tried to register for an interview. When the employee of the Directorate responsible for registering applicants found out that the long-suffering girl only had a copy of her passport, she ordered her to “clear out” of the office. When the consultant to the Civic Assistance Committee pointed out that under the administrative procedures of the Federal Migration Service “there is no basis for refusing to consider the application for temporary asylum in the Russian Federation”, the employee of the Directorate flew into a rage, started to shout and called the police. Only the intervention of the lawyer enabled them to retrieve their documents and leave the offices of the Directorate (the case is described in detail here [in Russian]).
Sometimes frightened refugees are forced to leave the office of the migration service after waiting for hours in the hope of getting asylum. In May 2017, a family from Afghanistan (a husband, wife and three children) applied to the Directorate for Migration Affairs just as the practice of sending applicants to court was picking up steam. A representative of the Directorate took their passports and disappeared without explanation. After waiting several hours with their lawyer, Philip Shishov, who works with the Civic Assistance Committee, the refugees realised that no one would receive them and were forced to leave the office. Philip Shishov subsequently managed to establish that the employees of the Directorate wanted to send the family to the police to be charged under Article 18.8 of the Code of Administrative Offences, but as the victims had left the office, they only handed over the passports to the police. The lawyer contacted the police, who confirmed that they had the documents but refused to return them, saying that the Afghan family had to appear in person so that administrative charges could be brought. Philip Shishov submitted a formal complaint regarding the actions of the migration services and the police to the Ministry of Interior, the Prosecutor, and the Lyubertsy Court. The Main Directorate of the Ministry of Interior of the city of Moscow stated explicitly that “Under the Code of Administrative Offences an application for asylum by a foreign citizen does not free an individual from administrative responsibility under Article 18.8.” Unsurprisingly, the Lyubertsy City Court, which imposes fines on refugees, did not identify any violations in the actions of the migration services or the police. Their passports were eventually returned but the refugees remain unable to apply for refugee status or temporary asylum. It remains to be seen what decision the Moscow Regional Court reaches.
The position of the Civic Assistance Committee is that fines or other penalties for illegal entry or presence in the country should not be imposed on foreign citizens applying for refugee status or temporary asylum as a matter of principle. The offices of the migration services are not the place to investigate violations of the laws on entry and presence in the country by those applying for asylum.
By Konstantin Troitskiy (the English version translated from Russian by Alexander Nice)