What is deportation: concept, reasons, procedure

Migration problems, in particular, with migrants who violate the rules of stay on the territory of the state, are experienced by most of the developed countries of the planet. Every day, thousands of illegal immigrants cross the borders of prosperous countries in search of a better life. But violation of the migration legislation is fraught with sanctions for them, and Russia is no exception in this case. In most cases, the authorities will deport the perpetrators back to their home countries. Let us consider in order what deportation is, to whom it applies and how it happens.

Deportation concept

Modern law recognizes deportation as one of the types of administrative responsibility for foreigners and, in one form or another, violating the migration legislation of the country in which they are staying.

Translated from Latin (lat. Deportatio), deportation means expulsion or expulsion, and this is reflected in the legislation of most countries applying this type of responsibility.

So, the concept of deportation was interpreted in Art. 2 of the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation", according to which deportation is the forced expulsion of a foreigner or stateless person who has lost legal grounds for staying in Russia through his own fault or for reasons beyond his control.

It should be noted that the legal definition may differ depending on the country and the specifics of its legislation. For example, according to the Polish Law "On Foreigners" of 13.06.2003, deportation is a decision on the voluntary or forced expulsion of a foreigner from the country.

Similar wording is contained in the Law “On Foreigners in the Republic of Bulgaria” dated 11.11.1998 and Law No. 326/1999 “On the Stay of Foreigners in the Territory of the Czech Republic”.

But, despite the possible differences in wording, deportation from Europe, including, occurs according to the general rules and grounds provided for by the domestic legislation of the countries. A similar interpretation of deportation is found in most other countries of the world, including the countries of North America and the United States.

The very procedure for its implementation in most cases may differ: differences may relate to the expulsion procedure, the authorities that make decisions about it, the procedure for appealing, and so on. Moreover, deportation from the country is almost always accompanied by a temporary or permanent ban on entry into it in the future.

Despite the similarity of procedures and a seemingly common legal nature, deportation should be distinguished from.

The difference between deportation and expulsion

Some legal scholars equate the concepts of deportation and expulsion, but this point of view is erroneous. Firstly, because administrative expulsion, at least by Russian law, is considered as a direct administrative punishment under Art. 3.10 of the Code of Administrative Offenses, while deportation is only a measure of responsibility.

Thus, the deportation of a foreigner from the country is applied in cases where there are no legal grounds for further stay. Expulsion as a form of punishment is applicable even if there are grounds for the legal stay of a foreigner, but in the event that he commits any offense. Individuals are expelled from the state in the interests of national security, public order, protection of health and morals, and so on.

Secondly, the decision on deportation is applied by the migration authorities, and the expulsion in most cases is ordered by the court. Thirdly, the procedure itself is also different: deportation is always compulsory, and the execution of expulsion is possible independently.

Grounds for deportation

Since the deportation of a stateless person or a citizen of another state is a type of responsibility regulated by each country separately, then the grounds for it in each country may differ. At the same time, since deportation is an aspect of international law, the grounds for its implementation always correspond to general principles. As already mentioned, deportation is always carried out in cases of loss or termination of legal grounds for staying in the country.

Given this, we can identify the main reasons for deportation, for which foreigners can be expelled from Russia, the Schengen countries, the United States and many others:

• violation of the rules for entering the country: presentation of forged documents, illegal crossing of the state border, including outside the checkpoint, and other violations at entry;
• violation of the conditions of stay:, the rules of temporary stay or permanent residence, illegal employment or employment, violation of the conditions for owning a green card (for the USA), failure to notify of a change of residence, lack of permission to enter or making a decision about the undesirability of staying in the country, violation other migration requirements of the legislation of the host country;
• termination of the grounds for staying in the country: expiration or cancellation of a visa, temporary right of residence, residence permit, labor patent and other grounds for legal stay in the country;
• committing administrative offenses: deportation for administrative offenses is practiced in the countries of the European Union, including the Schengen area, the United States and many other countries. In particular, the United States also provides for deportation for criminal offenses. In Russia, expulsion is provided for for administrative offenses, deportation in these cases is not applied;
• visiting one of the EU countries on a visa of another country: it is common for the migration authorities of European countries to deport a citizen who visited it on a visa from another country (for example, France on a Polish visa with a stamp of the Polish border service);
• immoral behavior: in the countries of the Middle East, they can be recognized as drinking alcohol in unidentified places, in China - visiting brothels.

Having considered the main reasons for which they can be deported, we consider it appropriate to also consider situations where deportation is impossible.

Who can't be deported

Despite a very wide range of grounds on which Russia, the countries of the Schengen zone, the United States and others can justify the decision to deport, the expulsion of certain categories of persons is still prohibited by international law. Firstly, these are all citizens of the country without exception - according to the provisions of Protocol No. 4 of the European Convention on Human Rights, no one can be expelled and no one can be prohibited from entering the country of nationality. Simply put, Russians cannot be expelled from Russia, and Italians cannot be expelled from Italy.

Secondly, according to Art. 7 of the Rome Statute of the International Criminal Court, forced population displacement is recognized as a crime against humanity and carries international responsibility. It is about a ban on the deportation of entire indigenous peoples and national minorities.

In addition, international rules do not allow deportation of:

• persons applying for refugee status, seeking temporary or political asylum - until the final consideration of the application, including its appeal;
• persons who have been recognized as refugees or who have been granted asylum, including political asylum, before the expiration of their humanitarian status;
• persons who have lost one of the above humanitarian statuses, provided that their expulsion to the country of origin is impossible for humanitarian reasons - if there is a risk of racial, religious, political and other persecution;
• persons with diplomatic or consular immunity.

Deportation procedure

This is how deportation happens: it all starts with the violation by migrants of the requirements and norms of the law and detection of these misconduct by law enforcement officers or the migration service, whose functions, for example, in Russia are performed by the Main Directorate of Internal Affairs of the Ministry of Internal Affairs, and in the USA - by Immigration and Customs Enforcement.

In Russia, the process of expulsion is regulated by the Federal Law "On the Legal Status of Foreigners in the Russian Federation" and the Federal Law "On the Procedure for Entry into the Russian Federation and Exit from the Russian Federation".

According to Art. 31 of the Federal Law "On the Legal Status of Foreigners in the Russian Federation", in the event of termination of the grounds for legal stay, a foreigner must leave the country within three days, otherwise deportation will follow.

As a rule, after detecting a violator of migration rules, he is delivered to law enforcement agencies "until all the circumstances are clarified." Further, after clarifying the situation, the offenders are placed in the so-called special institution of the migration authorities for the detention of persons subject to deportation. The foreigner will stay there until the officials consider his issue and immediately prior to the implementation of their decision. If a person is placed in an institution for more than two days, there must be a court decision.

Who makes the decision

Let's figure out who makes the decision to deport. In most cases, such an official is considered the head of the territorial migration authority that identified the migrant. In Russia, this is the head of the territorial department of the GUVM. On his instructions, other officials of the body prepare documents, send necessary inquiries and resolve other organizational issues. The final decision on deportation is formalized by a decree of the migration authority. In some cases, when the procedure requires it, such a decision is coordinated with other state structures.

Possible options

In addition to general cases, it should be noted that deportation is already possible from the airport. For example, when the migration authorities of the country in which a foreigner has arrived find that he has an expired visa, an entry ban and other grounds. In this case, a person who entered the country illegally must be expelled directly from the airport. The decision is made in this case by the head of the migration service.

A slightly different procedure is provided for foreigners serving a criminal sentence on the territory of another country. They are subject to deportation after serving their sentence.

However, the decision to deport such persons is not made automatically, but only after the Ministry of Justice makes a decision on the undesirability of the subject's presence on the territory of the Russian Federation. According to the order of the Ministry of Justice of the Russian Federation and the Federal Migration Service No. 225/240 of October 7, 2008, upon receipt of such information, the migration authorities make a decision on expulsion, and notify the administration of the institution where the foreigner is serving his sentence.

When there is a criminal fine or other punishment not related to deprivation or restraint of liberty, expulsion, in accordance with Part 11 of Art. 31 of the Federal Law "On the Legal Status of Foreigners in the Russian Federation" is possible only after the sentence has been served. That is, after paying off the fine, completing compulsory work and other punishment provided for by the court verdict.

In some cases, provided for by the legislation of the countries, readmission is permissible. It is carried out on the basis of international treaties and agreements signed between countries, and is also one of the types of forced expulsion of persons who are subject to deportation. Its peculiarity is that if there is an international agreement, not only its citizens can be deported to a particular country, but also citizens of other states who have arrived from this country. The decision on such persons is also taken by the leadership of the migration authorities.

Readmission should not be confused with extradition. Extradition is the extradition by a court of a foreigner to another state, where he violated the law, and has nothing to do with deportation.

Deportation notice

After the relevant decision is made, the migration authority sends a notification of its adoption to the country's Ministry of Foreign Affairs, which, in turn, notifies the Ministry of Foreign Affairs of the country to which the person will be deported (part 7.8, article 31 of the Federal Law "On the legal status of foreigners in RF "). In addition, many EU countries also practice notifying the host party - organizations and citizens who have invited the deported.

As for the foreigner himself, his notification is carried out by an authorized employee of the migration authority. In the document proving the identity of a citizen abroad, depending on the legislation of a particular country, appropriate marks may be affixed. This is how the deportation in the passport, issued by the migration authorities of the Republic of Belarus, looks like.

But not all countries put deportation marks in their passports. In a number of countries, which is especially common in Eastern Europe, the procedure involves entering a ban on entry stamp in the passport. This is how it looks in Ukraine.

As a rule, the ban is between 3 and 10 years. How many years the ban is established depends on the grounds for deportation and the specifics of the legislation of the country banning entry. Please note that the countries of the Schengen area, in addition to making a mark in the passport, enter the relevant information into the Schengen Information System (SIS), so replacing the passport itself will not solve the problem with the ban.

Deportation methods

In the overwhelming majority of cases, deportation of foreigners from the territory of the country involves forced expulsion, including escorting the offender under escort on a flight to his country. Such control is provided in order to avoid further violations of the conditions of stay on the territory of the country.

However, some states also provide for the voluntary controlled departure of citizens in respect of whom a decision on expulsion has been made. Such persons are given a period for independent departure. In the event of a violation, a forced expulsion process is initiated.

At whose expense does the expulsion take place

According to general rules, including in Russia, the expulsion of a deported citizen outside the country is carried out at his expense (part 5 of article 31 of the Federal Law "On the legal status of foreigners in the Russian Federation"). However, if he does not have such funds, expulsion is carried out at the expense of:

• the inviting body, including an international organization or employer;
• the individual who invited him;
• consulate or diplomatic mission of his country of origin.

If it was not possible to determine the inviting party, and it is impossible to finance the expulsion from the diplomatic missions, the allocation of funds is made by the receiving state.

Checking for deportation and reasons for the ban on entry

Visiting a foreign country is often associated with very significant costs, which cannot be reimbursed in the event of detection and subsequent deportation. Unfortunately, for a trip to the countries of the Schengen zone, the presence of a ban in the SIS database cannot be found out using the Internet. However, such information can be obtained by sending an official request to the migrant countries or by making such a request through intermediaries.

Many other countries provide this information online. For example, in Russia in 2019, it can be obtained using the electronic services of the Main Directorate of the Ministry of Internal Affairs. This requires:

1. Go to the official website of the GUFM Ministry of Internal Affairs.
   
2. Go to the section "Useful services of the Ministry of Internal Affairs of Russia".
   
3. Go to the "Migration Services" section.
   
4. Scroll down and go to the section "Checking if there are grounds for not allowing entry to the territory of the Russian Federation".
   
5. Fill in all the fields provided for in the section.
   
   
   
6. Press the "Send request" button.
   

Please note that the answer to such a request will be for reference only. To obtain reliable information, it is recommended to contact the territorial division of the GUVM. If you find a ban, we recommend contacting lawyers who will help speed up the deportation or appeal the decision.