Administrative liability for violating stay regulations: the problem of distinguishing between illegal migrants and asylum seekers

Abstract

Goal. The purpose of this study is to identify the conflict between the policy of increasing administrative liability for violations of the migration regime in the Russian Federation and the protective norms of legislation on refugees and asylum seekers, including the principle of non-deportation, as well as the limits of application of Article 18.8 of the Code of Administrative Offenses of the Russian Federation to this category of foreign citizens.Method. The study is based on an analysis of current federal legislation, including the Concept of the State Migration Policy of the Russian Federation for 2026-2030, the legal positions of the Constitutional Court of the Russian Federation, and the materials of the law enforcement practice of general jurisdiction courts. The study also focuses on the historical and legal analysis of the stages of the evolution of administrative and legal regulation of migration in Russia from the 1990s to the present.Results. The paper shows that the transition of Russian migration policy from targeted repressive measures to a model of constant and digitalized control (registries, digital records, and so on) is explained both by economic expediency and by the demand of Russian society for more comprehensive migration control. In addition, the author's criticism of the formal approach of law enforcement officers is presented, in which the very fact of violating the residence regime is stated without taking into account the forced nature of the asylum seeker's movement. Arguments have been made in favor of the need for a court or administrative authority to verify the person's actual ability to legalize or safely leave the country, as well as the risk of persecution upon return to their home country. It has been shown that the issue is primarily procedural.Conclusion. The article proves that the solution to the identified conflict lies not in the complete exclusion of asylum seekers from administrative liability, but in the refusal to apply the general rules of the Code of Administrative Offenses of the Russian Federation to them in a subsidiary and formal manner, and in the individualization of administrative coercion. The author proposes to enshrine at the level of the Plenum of the Supreme Court of the Russian Federation the obligation to establish the reasons for the violation of the migration regime when a person claims that their life or health is at risk, to provide for the suspension of administrative deportation during the consideration of an asylum application, and to ensure judicial control over the validity of the detention of such persons in temporary detention centers for foreign citizens.