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MIGRATION AND HUMAN RIGHTS

Proceedings of the International Scientific-Practical Conference

28 / 11 / 2019
MINSK
Institution “Advisory Centre
on contemporary international practices and their implementation in law
‘HumanConstanta’”

MIGRATION AND HUMAN RIGHTS


Proceedings of the International Scientific-Practical Conference

28/11/2019
MINSK
The aim of the conference was a public professional
dialogue on the topic of migration from a human
rights perspective. Together with other organizations
and experts, we gathered to talk about the following:
••national migration policy and human rights;
••regional migration challenges;
••place of human rights on the global migration agenda.
Inhalt

Place of Human Rights on the Global


Migration Agenda ............................................................................... 4
Protecting the Rights of Migrants: .
The World Experience of the Trade Union Movement.
Dmitry Poletaev................................................................................................. 5
The situation with migrant children .
in Eastern Europe and Central Asia.
Evgenia Andreyuk............................................................................................ 12
International labor migration: problems and solutions.
Nadezhda Denisenko........................................................................................ 19
The place of human rights on the global migration agenda.
Victoria Davtyan.............................................................................................. 26

Regional Migration Challenges............................................. 32


Legal protection of migrants in the context .
of mixed migration flows in Europe .
Sabuni R.M....................................................................................................... 33
Integration starts at home.
Anna Fedas...................................................................................................... 40
Measuring and Improving Integration .
of Beneficiaries of International Protection: case of Lithuania.
Giedrė Blažytė.................................................................................................. 47

National Migration Policy


and Human Rights.............................................................................. 56
Deportation and expulsion.
Eugene Maslov................................................................................................. 57
Appeals to the Human Constanta free legal office .
for the protection of the human rights of foreign citizens .
and stateless persons: trends and challenges.
Enira Bronitskaya, Alena Chekhovich............................................................. 64
The application of the principle of proportionality .
in the process of making a decision on expulsion .
on the example of the Republic of Belarus.
Ann Alymova.................................................................................................... 72

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Place of Human Rights
on the Global
Migration Agenda
Protecting the Rights of Migrants:
The World Experience of the Trade Union Movement

Dmitry Poletaev,
Center for Migration Studies

The world experience of trade unions protecting the rights of migrant


workers working both in organizations and for individuals is analyzed in
this article. The reasons why trade unions were able to start working with
foreign citizens and the history of such work in different countries of
Europe, Asia, Africa, North America, and post-Soviet countries, as well
as the practices of joint work of trade unions of different countries are
considered. The experience of Russia in protecting the labor rights of
migrant workers is presented. The prospects and opportunities for the
development of the trade Union movement in the framework of the
protection of the rights of migrant workers are considered.

Labor migration is seen not only as a trend of globalization, but even


as an alternative to class struggle [1], so the issue of the most effective
practices with which migrant workers can protect their labor rights is
becoming increasingly acute. Researches [2] show that migrants prefer
to solve their problems themselves, so such a form of self-organization as
trade unions seems to be the most promising and simple for them, which
is proved by the existing practice of trade unions working with foreigners,
both in Russia and in the world. But the existing trade unions in Russia
and in the world play a very different role in protecting the rights of
migrant workers.

World experience in organizing trade unions of migrant workers


Migrant unions do not exist in all countries. There are countries where
the authorities do not allow them or disperse and close such unions. So,
for example, it was in South Korea, where the migrant union was

5
dispersed [3]. There is an “all-Ukrainian trade Union of migrant workers
in Ukraine and abroad” [4], which works with its members living and
working abroad, outside Ukraine.
In the world, solidarity with migrant workers is complex and broad-
based. For example, in the United States, the American Federation of
labor and Congress of industrial unions (AFL-CIO) [5] has a partnership
agreement with the network Association of temporary workers  — “The
National Day Laborer Organizing Network” [6]. This network, through
“work centers” throughout the United States, works with migrant workers
who do not have permanent jobs and are often employed without
employment contracts. This Association is not a trade union in the classical
meaning since the network does not conduct collective bargaining. But
with its help, temporary workers come together to define the rules and
conditions of work, in particular, the level of the minimum wage below
which they are not applying for a job. Most of the temporary workers and
most of the workers in the “work centers” are immigrants, so they develop
political, legislative and legal measures that affect migrants as well. There
is also a partnership with another network — “Interface justice” [7].
The AFL-CIO Executive Committee adopted a resolution in Chicago
that allows work centers to join labor unions at the local and state levels
as partners from the public (Central Labor Councils/State AFL-CIO). 
There is a practice of preparing migrant workers for life away from
home in the form of their involvement in trade unions before leaving the
country [8]. For example, Belgian trade unions promote dialogue with
trade unions in the countries of origin by organizing seminars and
information centers, while French trade unions have offices in the
countries of origin of migrants to provide information on trade Union
rights and membership. 
Trade unions in the countries of origin are also interested in liaising
with the members of their associations who left abroad, such as the
Senegalese trade Union Federation UNSAS and the Dominican trade
Union CNTD, the Trade Union GEFONT in Nepal which has branches
for Nepalese workers who work in India [8]. The Ceylon Workersʼ
Congress (Sri Lanka), the Moroccan Union UMT (Union marocaine du
travail) and the Portuguese CGTP-IN, attracting migrants to the Union in
the countries of origin. Trade unions in labour-supplying countries are
developing policies to help migrant workers to return home. 

6
The Farm Labor Organizing Committee (FLOC) [9] operates in the
United States and Mexico, providing protection and involvement in the
Union of agricultural workers. In Mexico, FLOC advocates for the new
rights of workers that farmers import into the United States. 
The global trade Union Federation, the Union Network International
(UNI), issued a “UNI passport” to help migrant workers maintain their
trade Union rights and receive assistance when moving from country to
country [10].
“UNI passport” allows service workers [11]: 
••join any of the more than 900 UNI affiliates worldwide; 
••Get support and assistance from a local union in the UNI member
country of destination; 
••to get acquainted with the life of the local trade Union, including
being included in the mailing list of information materials,
invitations to cultural and political events; 
••to participate in the life of the local trade Union — for example, in
the work of groups dealing with specific professional issues or in
the organization of training; 
••get access to information on working conditions, banking and tax
systems, housing conditions, school facilities, health care and
pension systems; 
••get advice on employment, employment contracts, local labour
laws, and collective agreements; 
••get legal support in case of problems with the employer. 
An important reason for attracting migrant workers to trade unions is
the influx of new members. Changes in the labour markets of developed
countries have led to a reduction in the number of trade unions, an
increase in the average age of Union members and a decrease in the
number of trade unions in industries that are highly active. In these
conditions, the search for new members in areas outside the scope of trade
unions, including areas where migrant work, becomes an important work
for strengthening the labour movement. For example, in Switzerland, the
Industry and Construction Trade Union (GBI), the number of workers
born abroad is already more than half of the number of trade unions, and
in the UK, Portuguese migrants join the ranks of trade unions. Among the
new members who joined the American Federation of labor And the
Congress of industrial unions, after a long period of decline in the number

7
of trade unions in the United States, many are migrant workers from Latin
America and the Caribbean [8]. 
Trade unions in Germany cooperate with Polish trade unions in the
construction industry and agriculture and in Warsaw there are their offices
where you can get information about working conditions and labour
rights in Germany, and potential migrants in Poland are invited before
leaving the country to join a trade Union. Trade unions support the
conclusion of bilateral and trilateral agreements between the countries of
origin and destination of migrants, when the possibility of simultaneous
membership in trade unions of both countries is recognized so that
German trade unions can help migrant workers, without joining their
Union. 
In September 2004, the German Trade Union for Building, Forestry,
Agriculture and the Environment (IG BAU) created the European Migrant
Workers Union [12], which advocates for seasonal workers, especially
migrant workers in the construction industry and agriculture. The Unionʼs
assistance consists of providing legal aid and advice, support in case of
illness or accident, receiving agreed payment for work performed and
improving housing conditions. 
In the United States, a number of trade unions have developed a
project in Boston to promote immigration, training and education
rights(Immigration Rights Advocacy, Training and Education Project-
RATE), to promote the unification of migrant workers, providing
information and legal assistance, assistance in the creation of working
committees, to further establish the training of trade Union activists. 
Even domestic workers who are isolated from the host society and
most exploited, such as the South African Domestic Service Allied
Workers Union, are joining [13]. Joining domestic workers requires
innovative strategies and approaches, as well as providing them with a
wide range of services, such as helping them to overcome low self-esteem
and develop work consciousness.

Russian experience
Russian trade unions, which have their origins in trade unions which
came from the USSR, as a rule, act as opponents of labor migration,
opposing the fact that migrants are needed. It is difficult to consider such

8
trade unions as partners in the protection of labour rights by labour
migrants. Migrants do not join these unions, such unions do not work
with migrants and their employers. Their position of opponent of
cooperation with migrants has been unchanged for quite a long time.
The Moscow trade Union of migrant workers [14] acts as an
intermediary organization in resolving labor conflicts between migrants
and employers, provides quality services to migrants, is engaged in
information and consulting. Its activities are not limited to mediation
services: it publishes the newspaper “Labor migration news”, informs
migrants and their leaders about the latest legislative changes and news.
This Union is strong because it showed: trade Union type of work with
migrants in Russia is possible. But, unfortunately, this structure has not
been able to stimulate a large-scale association of migrant workers yet
and has only about 35 000 members. 
In Moscow, as the center of Russia, officials cannot afford to be
overly conservative. The situation is more complicated in the regions,
where officials are more conservative and therefore it is very difficult to
create any active trade Union there, especially a trade Union for migrants.
There have been attempts to create structures similar to the migrant trade
Union. But, for example, in the Ural region, they ended unsuccessfully:
on the one hand, due to the sufficient number of already existing
intermediary organizations in the region, and, on the other hand, the
consolidation of migrants around the trade Union was difficult, since each
of the Diaspora organizations operating in the region had its own interest,
primarily financial. 
In 2008, in the Arkhangelsk region, there was an attempt to establish
the work of the Territorial trade Union of workers of organizations using
migrant labor in the Arkhangelsk region, but, according to the center
“Sova” [15], the local authorities of the Arkhangelsk region opposed the
work of this trade Union and it actually ceased its existence.

***
As a result, the following conclusions can be drawn:
1. The trade Union movement around the world is quite actively
involved in the protection of the rights of migrant workers working in

9
various fields, including the protection of the rights of domestic workers
employed by private employers;
2. Trade unions that protect the rights of migrant workers have
specific difficulties in their work, namely connected with the protection
of the rights of foreigners, who have a more limited range of opportunities
for their protection, compared with the local population;
3. The practice of working with foreigners on the basis of trade
unions still has very limited prospects for implementation in Russia, due
to the conservative position of Russian trade unions and legislative
restrictions, but, for example, the work on the protection of labor rights
of migrant workers, already carried out within the EAEU, has good
prospects and significant potential for development.

List of references
1. Milanović, B. (2011). Global inequality. Washington, D.C.: World Bank. https://
openknowledge.worldbank.org/handle/10986/3583 [Accessed 09 Nov. 2019].
2. Полетаев, Д.В. (2018) От настороженности к неприязни: динамика отноше-
ния в России к трансграничным трудовым мигрантам в 2002–2016 гг.. От
века бронзового до века цифрового: феномен миграции во времени. Барна-
ул, Изд-во Алт. ун-та, 2018. стр. 267–284 https://book.ivran.ru/f/fen-migr.pdf.
3. iuf.org (2007) Депортация лидеров Корейского профсоюза мигрантов 14.12.
http://www.iuf.org/cgi-bin/dbman/db.cgi?db=default&uid=default&ID=4751&vi
ew_records=1&ww=1&ru=1 Дата обращения: 09.11.2019.
4. Migrant.org.ua. (2019). migrant.org.ua. [online] Available at: http://migrant.org.
ua/ [Accessed 09 Nov. 2019].
5. aflcio.org (2019). [online] Available at: http://www. aflcio.org / [Accessed 09
Nov. 2019].
6. Поденщики нового времени (2015) Настоящее Время 27 мая https://www.
currenttime.tv/a/27040122.html.
7. Interfaith Justice Coalition. (2019). Interfaith Justice Coalition. [online] Available
at: http://www.interfaithjusticesd.org/ [Accessed 09 Nov. 2019].
8. ILO (2008) In search of Decent Work — Migrant workers’ rights: A manual for
trade unionists. International Labour Office. — Geneva: ILO.
9. Floc.com. (2019). [online] Available at: http://www.floc.com [Accessed 09 Nov.
2019].
10. UNI Global Union. (2019). UNI Passport. [online] Available at: http://www.
uniglobalunion.org/groups/managers-professionals/uni-passport [Accessed 09
Nov. 2019].

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11. UNI Global Union. (2019). UNI Passport. [online] Available at: http://www.
uniglobalunion.org/groups/managers-professionals/uni-passport [Accessed
17 Feb. 2019].
12. Emwu.org. (2019). European Migrant Workers Union. [online] Available at:
http://www.emwu.org/ [Accessed 09 Nov. 2019].
13. Sadsawu.com (2019). [online] Available at: http://www.sadsawu.com / [Accessed
09 Nov. 2019].
14. Profmigr.com. (2019). [online] Available at: http://www.profmigr.com/ [Accessed
09 Nov. 2019].
15. Сова (2011) Профсоюзная деятельность как насильственное изменение
основ конституционного строя 22.07. Центр Сова http://www.sova-center.ru/
misuse/news/persecution/2011/07/d22173/.

11
The situation with migrant children
in Eastern Europe and Central Asia

Evgenia Andreyuk,
Anti-Discrimination Center «Memorial»

October 14, 2015 in St. Petersburg a 6-month-old baby Umarali


Nazarov died, forcibly taken from his mother in the police Department
during the proceedings on the violation of her migration regime.
On October 13, Zarina Yunusova  — Umaraliʼs mother was at home
with her husbandʼs brother Daler Nazarov when three employees of the
Federal Migration Service (FMS) came to them. They were all in civilian
clothes. Without introducing themselves, they demanded Zarina to show
documents, but neither she nor Daler had a passport with them. The only
document she had was Umaraliʼs birth certificate, but because Zarina
didnʼt understand Russian language, and there was no interpreter with the
staff of the FMS, she didnʼt show it.
Yunusova, her husbandʼs brother and little Umarali were taken to the
police Department. Umarali was taken from his mother without provision
of an interpreter to her, without finding out personally whether the child
was hers. Later, Umaraliʼs grandmother brought the documents to the
police Department which confirmed the relationship of the child and the
mother, but these documents were not accepted, the child was not returned,
but taken to the hospital named after Cymbalina, where he died within
45 minutes of feeding for unknown reasons. The parents were not
informed until the next morning.
Only 6 days after the death of Umarali, the Investigative Committee
of the Russian Federation opened a criminal case, which was then
discontinued. Umaraliʼs mother was expelled from Russia, and she took
the childʼs body with her [1].
In recent years, this is the most famous and egregious case of violation
of the rights of migrants. But similar cases of violations of the rights of

12
migrant children — separation from their parents, deprivation of liberty,
denial of education and health care-occur daily in many countries of
Eastern Europe and Central Asia. One of the main reasons is the outdated
approach to migrant children, which equates them with criminals and
limits basic rights.

International standards on the rights of migrant children


The 1989 Convention on the Rights of the Child guarantees that all
children shall fully enjoy all the rights provided for in the Convention,
regardless of their migration status or that of their parents or legal
guardians [2].
In 2017, the Committee on the rights of the child, together with the
Committee on the protection of the rights of migrant workers, adopted the
most important General Comments, which specifically and in detail
explained the application of the provisions of the Convention in the
situation of mass migration. The basis of any action with respect to
migrant children should be the principle of non-discrimination (article 2
of the Convention); the principle of the best interests of the child
(article 3); the principle of the right to life, survival and development
(article 6) and childrenʼs right to Express their views on all matters that
concern oneself and to expect that his views will be taken into account
(article 12) [3].
The Committee on the rights of the child reiterated that children
should never be detained solely for reasons related to their migration
status or that of their parents, and that States should immediately and
completely eradicate such practices and prohibit them at the legislative
level [4].
States have an obligation to treat migrant children as individual rights
holders, not as violators of the migration regime, and to take into account
the views of children. The Committee recalled that States should refrain
from actions that could lead to the separation of families, and, on the
contrary, take measures to preserve families. In addition, all children in
the context of international migration, whatever their status, should have
unimpeded access to all levels of education and to all aspects of health
care [5].

13
Awareness of the rights of the child is growing worldwide, and some
governments are trying to implement the Convention and the Committeeʼs
recommendations on migrant children. Thus, in a number of countries,
the detention of children on migration grounds has been prohibited at the
legislative level, alternatives to detention are being created (in Norway,
for example, a court, based on an individual assessment of the situation,
assigns migrants to live at a certain address instead of detention, control
visits to the police at the place of residence, delivery of documents for
travel abroad). Some countries prohibit the forcible removal of
unaccompanied children, allowing only the possibility of voluntary return
if it is in the best interests of the child and the childʼs family agrees to it.
In France, even voluntary returns cannot be decided on for unaccompanied
children [6].
In a situation where the child cannot be returned to the country of
origin, some countries provide for the issuance of a residence permit and/
or the postponement of return: in Germany, it is possible to obtain a
residence permit on humanitarian grounds, for education or on the basis
of employment for 18 months, after several years of temporary stay, it is
often possible to obtain a permanent residence permit. The continuation
of assistance to the child even after the age of 18 is welcome (for
example, Latvia in this case provides a delay of return up to one year if
the 18-year-old person attends school or there are other humanitarian
reasons) [7].

Chisinau agreement on the return of children [8]


Children as independent subjects of law are absent in the migration
legislation of the countries of the Eurasian region. There are no special
agreements between countries that ensure the rights of children in the
situation of migration. In these circumstances, the main document
regulating the movement of children remains the outdated and repressive
Chisinau agreement on cooperation of the CIS member States on the
return of minors to their States of permanent residence (2002) [9].
According to the Chisinau agreement, the return of children to the
country of origin is carried out through the “transit institutions” listed in
the Annex to the Agreement. These are closed institutions, whether they
are childrenʼs receivers of the Ministry of internal Affairs, transit shelters

14
and child adaptation centers related to the social or educational sphere —
children can not leave them on their own, relatives and independent
observers can not freely visit them. In such institutions, children are
usually not provided with education, as well as the necessary leisure and
entertainment for their development. Childrenʼs pastime is subject to
a  strict daily routine under the supervision of the staff of the centers.
In  some countries, conditions in transit facilities are unsatisfactory and
even inhumane.
In practice, the presence of children in a transit institution in fact is
not so short. Thus, in 2015, the majority of children from the CIS countries
admitted to the transit shelter (St. Petersburg) spent up to 3 months there
(65 people), but a significant number of children stayed there from 3 to
6 months (21  people) and even from 6 months to a year (4 people, all
citizens of Uzbekistan) [10]. In Ukraine in 2014–2019 in Kiev distribution
receiver children spent an average of 50–60 days.
Meanwhile, the placement in closed institutions of children who have
not committed any crime, but only have problems with documents,
is interpreted by the UN Committee on the rights of the child and the UN
Committee on the rights of migrant workers and members of their families
as deprivation of liberty and is considered unacceptable. Thus, the
Chisinau agreement does not meet modern international standards in the
field of childrenʼs rights.
According to the Chisinau agreement, migrant children are placed in
reception centres, where, in addition to migrant children, juvenile offenders
are detained [11]. Thus, States parties equate children who have committed
offences with children without parental care and place them in the same
institution, despite the fact that an unaccompanied foreign child is not
automatically an offender.
The problem is that both textually and in the “police” spirit, the
Chisinau agreement practically repeats the Volgograd agreement on
cooperation of the Ministries of internal Affairs (1993), created a decade
before it, with some formal changes. The signing of Volgograd agreement
is a legacy of the Soviet system of treatment of migrant children. Structures
controlling the movement of people within the USSR (passport offices,
receivers, distributors, etc.) belonged to the sphere of the Ministry of
internal Affairs. Therefore, it is not surprising that after the collapse of

15
the USSR, when it became necessary to coordinate migration issues
between the newly independent States, migration, including children, was
subordinated to the Ministry of internal Affairs [12].
Today, the list of transit childrenʼs institutions available in the
Chisinau agreement has long been untrue: Armenia, Georgia, Moldova
have eliminated the MIA distribution centers; in Kazakhstan, migrant
children are placed in adaptation centers subordinated to the Ministry of
education; in Kyrgyzstan, Russia, Ukraine, the MIA transit receivers
coexist with social centers for migrant children. Moreover, the Chisinau
agreement was signed between the CIS countries in 2002 and no longer
corresponds to the foreign policy situation in the region: Georgia withdrew
from the CIS in 2008; since the spring of 2014, Ukraine has been in the
state of armed conflict with Russia and officially withdrew from the CIS
in 2018. In these circumstances, the cooperation of States in the field of
the return of children is extremely difficult.
The Chisinau agreement should be replaced by special bilateral
treaties between the countries of the region on the return of children.
These treaties should be based on the position of the UN Committees on
the rights of the child and on the rights of migrant workers on the special
rights of children in situations of migration and should include [13]:
•• prohibition of criminalization and immigration deprivation of
liberty of children, i.e. placement of migrant children in closed
institutions only on the basis of their migration status or the status
of their parents;
•• prohibition of separation of children and parents without sufficient
grounds (if there is no threat to the life and health of the child),
only because of the migration status of children and/or their parents;
•• transition of the topic “children in migration” from the police to the
social/educational sphere, support of the child by social services at
all stages of return to the country of origin;
•• ensuring the right to education of migrant children in the process
of returning to their country of origin;
•• the childʼs ability not to return to his or her country of origin if it
is in his or her best interests to do so;
•• monitoring by social services of the situation of the child who has
returned to the country of origin, social support and rehabilitation
of the child and his family;

16
••
ensuring independent public monitoring of the rights of migrant
children in the process of return to the country of origin;
••
improving coordination and cooperation between different countries
in the field of transit of children between agencies within the same
country.

References

1. АДЦ Мемориал, Гибель Умарали Назарова — младенца, отнятого у матери


полицией, — трагический пример нарушения прав детей-мигрантов,
9.10.2019, https://adcmemorial.org/www/18642.html
2. Convention on the Rights of the Child of 20 November 1989, article 2 https://
www.un.org/ru/documents/decl_conv/conventions/childcon.shtml
3. Joint General comment No. 3 (2017) of the Committee on the protection of the
rights of all migrant workers and members of their families and No. 22 (2017)
of the Committee on the rights of the child on the General principles regarding
the human rights of children in the context of international migration, 16 November
2017, p. 19.
4. Joint General comment No. 4 (2017) of the Committee on the protection of the
rights of all migrant workers and members of their families and No. 23 (2017)
of the Committee on the rights of the child on Statesʼ obligations with regard to
the human rights of children in the context of international migration in countries
of origin, transit, destination and return, 16 November 2017, paragraph 5.
5. Joint General comment No. 4 (2017) of the Committee on the protection of the
rights of all migrant workers and members of their families and No. 23 (2017)
of the Committee on the rights of the child on Statesʼ obligations with regard to
the human rights of children in the context of international migration in countries
of origin, transit, destination and return, 16 November 2017, paragraphs 15, 27,
54, 59.
6. European Migration Network (2018). Approaches to Unaccompanied Minors the
Following Status Determination in the EU plus Norway  — Synthesis Report.
Brussels: European Migration Network, 2017, pp. 40–47.
7. There.
8. Full name: Agreement on cooperation of the CIS member States on the return of
minors to the States of their permanent residence (2002, hereinafter-the Chisinau
agreement).
9. ADC «Memorial», #Crossborderchilhood campaign, https://adcmemorial.org/
crossborderchildhood

17
10. АДЦ Мемориал, Дети-мигранты в странах СНГ: нехватка адекватных пра-
вовых норм, регулирующих сотрудничество вовлеченных стран, 2018,
https://adcmemorial.org/wp-content/uploads/Transit_RU.pdf, стр. 12.
11. Соглашение о сотрудничестве государств-участников СНГ в вопросах воз-
вращения несовершеннолетних в государства их постоянного проживания,
2002 г., статья 2.
12. АДЦ Мемориал, Дети-мигранты в странах СНГ: нехватка адекватных пра-
вовых норм, регулирующих сотрудничество вовлеченных стран, 2018 г.,
https://adcmemorial.org/wp-content/uploads/Transit_RU.pdf, стр. 10.
13. ADC «Memorial», #Crossborderchilhood campaign, https://adcmemorial.org/
crossborderchildhood

18
International labor migration:
problems and solutions

Nadezhda Denisenko,
winner of the essay competition
“Migration and Human Rights”

International migration is a complex phenomenon involving many


economic, social and security issues, affecting our daily lives in an
increasingly interconnected world. One of the most common goals of
migration is search for employment. According to global estimates of
labour migration in 2013, labour migrants are accounted for 150 million
of the approximately 232 million international migrants in the world.
If women migrants have a higher level of economic activity than women
in general (67 % vs. 50,8 %), then mens one doesnʼt depend on the status
of migrants (78 % vs. 77,2 %) [1]. International labour migration is
caused by a number of reasons, which need to be established in order to
solve the issues arising in its process. The issues related to international
labour migration include: lack of adequate migrantsʼ awareness,
discrimination against migrant workers and others. An effective mechanism
for addressing the problems referred to is ratification of international
treaties in this field and, above all, of the United Nations International
Convention on the protection of the rights of all migrant workers and
members of their families. Problems in the field of labour migration are
also lack of migrantsʼ involvement in trade unions, as well as delegation
of migration management to the competence of the ministries of internal
affairs, not the ministries of labour. This paper attempts to find solutions
these issues.

Labour migration has a long history. The movement of large numbers


of people has always played a large part in social development. In some
millennia B.C., large populations moved from region to region. Greatness
of an ancient world states (Egypt, Babylon, Persia, Greece, Rome, and

19
others) is in no small measure due to labour of slaves captured during
numerous wars and campaigns. The main feature of the ancient labour
migration was its forced nature. In recent years, we have seen an increase
in migration and relocation resulting from conflicts and persecution.
Sharp stratification of countries depending on the level of socio-economic
development, incessant processes of globalization are conducive to growth
of labour migration in the world [2, p. 241].
Today, the rights of migrant workers and their working conditions are
violated in many countries. Issues related to the work of such workers are
enshrined in documents on different levels.
The principles and standards of protection of migrant workers are
developed in the framework of the United Nations (hereinafter UN),
International labour organization (hereinafter ILO), the Council of
Europe, the Commonwealth of Independent States and set out in the
relevant documents, including the universal Declaration of human
rights, the ILO Convention on migrant workers (revised in 1949),
No. 97, ILO Convention Concerning Migrations in Abusive Conditions
and the Promotion of Equality of Opportunity and Treatment of Migrant
Workers No. 143 European social Charter, the European Convention on
the legal status of migrant workers, UN International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families [2, p. 242].
The main causes of peopleʼs movement from one state to another in
search of employment are poverty and inability to earn or produce enough
to provide for themselves and their families. These reasons are not a
phenomenon exclusive only for migration from poor States to rich ones;
poverty also causes movement from one developing country to another,
where prospects of work, at least from afar, look preferable [3, p. 4].
In addition to the striving to earn more, structure of motives and
needs of migrant workers can be also identified such as “the need to find
the desired job”, “self-realization”, “change the situation”, “striving to see
the world”, “striving to spice up their life”, “for the ride”, “striving to be
independent”, “get out of parentsʼ care”. The last two motives for going
abroad are often given by young people aged 19 to 25 years [4].
There are other reasons for people to go abroad in search of
employment. Wars, civil conflicts, threats to security or persecution due

20
to discrimination against race, ethnicity, colour, religion, language or
political beliefs — all the mentioned affect the flow of migrant workers.
Of course, addressing the causes of labour migration will not only
reduce the number of migrants, but will also contribute to solving the
problems arising in the process of labour migration.
As already noted, international labour migration is a complex
phenomenon. There are a number of issues related to labour migration
that need to be addressed.
One such issue is that a large number of migrant workers lack the
necessary information and are ill-prepared to live and work abroad. In
addition, most of them donʼt know about the protection of human rights
and fundamental freedoms, which are guaranteed to them in accordance
with international treaties and national laws [3, p. 6].
In accordance with article 33 of the UN International Convention on
protection of the rights of all migrant workers and members of their
families (hereinafter — the Convention), the States parties are obliged to
take all measures, as they may deem appropriate, to inform migrant
workers and members of their families, at their request, free of charge,
and, if possible, in a language they can understand, about their rights
under the Convention and about all other matters that will enable them to
comply with administrative and other formalities in the state of
employment [5].
The solution to the problem of awareness of migrants in the European
Union had become the opening of the «EU immigration portal» (EU
Immigration Portal http://ec.europa.eu/immigration) in 2011, functioning
in English, French, Spanish and Arabic . It contains extensive information
on immigration procedures of all member countries, contacts with national
government authorities and non-governmental organizations in the field
of migration. Such electronic portals are designed to provide potential
migrants with up-to-date information on the channels of entry. They
operate in most member States of the European Union [2, p. 243].
Another problem in the field of international labour migration is
discrimination against migrant workers in the field of employment. It
emerges in many forms, such as failure to provide or preferential provision
of certain types of work that are available to migrants and difficulty of
access to professional training. With regard to labour rights, different

21
standards are often applied to citizens of the country, on the one hand,
and to migrants, on the other hand, and the conditions of contracts may
set out deprivation of certain benefits to migrants [3, p. 6–7].
Article 25, paragraph 1, of the Convention states that «migrant
workers shall be treated no less favourably than nationals of the state of
employment in respect of remuneration» and in respect of other conditions
of work and employment [5]. In accordance with paragraph 3 of the same
article States parties are obliged to take all appropriate measures to ensure
that migrant workers are not deprived of any of these rights [5].
As we can see, the legal situation of migrant workers is complicated
by existence of a significant number of difficulties and obstacles in
exercising their rights. The Convention is designed to solve these problems
at the international level, the one, which, unfortunately, only 55 States
have ratified; 39 have signed, but not ratified [6]. Most of the countries
that have ratified the Convention are countries of migrantsʼ origin.
Signing of the Convention is urged by its positive characterization of
a number of scholars. According to I.I. Lukashuk, “The Convention
ensures a fairly high standard of protection for the rights of migrant
workers and members of their families. The main thing will be to ensure
the implementation of the provisions of the Convention by the States
parties” [7, p. 134–135]. V.A. Kartashkin considers that adoption of this
Convention and establishment of the Monitoring Committee of the
implementation of its provisions by States parties have created a
qualitatively new basis for protection of rights of migrant workers and
members of their families [8, p. 276].
Thus, the problem of implementing the Convention at the national
level is the major obstacle in ensuring high standards of protection of the
rights of migrant workers and members of their families. In our view,
ratification of the Convention by as many States as possible is the key to
success in ensuring the rights of migrant workers and countering illegal
labour migration.
One of the problems with the treatment of migrants in general and
labour migrants in particular is often injustice and violation of norms,
both national and international. As stated in the Final document of the
2004 International labour conference, despite the positive experience,
a  significant number of migrant workers face unfair treatment and
discrimination in low wages, harsh working conditions, lack of social

22
protection, lack of freedom of forming associations in order to claim their
rights, xenophobia and social exclusion [9, p. 71].
Of course, protection of migrant workersʼ rights should be addressed
at the legislative level, as well as through the system of agreements and
collective agreements. And, for this purpose it is necessary to encourage
migrantsʼ membership in trade unions.
Of course, trade Union organizations are aimed at ensuring that
employers respect the rights and interests, above all, of their Union
members and local workers, meaning their priority right to employment
and decent pay. But it is not quite right to absolve themselves of the
problems of migrant workers. And thatʼs what the workersʼ group of the
ILO governing body says on the matter: “Formation of migrant
organizations is an urgent task of trade unions, and the legislation
preventing migrants from joining trade unions should be abolished, as
well as the provisions of the statutes of trade unions and rules that contain
obstacles, preventing migrants from becoming their members” [10, p. 15].
Moreover, we agree with the opinion of V. Shcherbakov, who believes
that “when concluding agreements and collective agreements, trade Union
organizations should ensure that the provisions provided for local workers
apply equally to foreign workers” [10, p. 17]. This opinion is justified, as
it fulfils the requirements of international treaties on equality between
migrants and citizens of the host country.
The problem as equally important is the one of attributing migration
management issues to the competence of the ministries of the internal
affairs rather than the ministries of labour, which accordingly changes the
context of migration policy development and its practical implementation:
instead of being part of labour market policy, migration management
becomes part of policing and national security policy.
Despite the fact that migration in the overwhelming part is migration
for the purpose of employment, it actually remains beyond competencies
of those institutions that are responsible for regulating the labour market,
working conditions and formation of labour relations [9, p. 73]. To ensure
purposeful management of labour migration, it is necessary to entrust the
issues of its regulation to jurisdiction of the ministries of labour.
Thus, on the basis of the study, it can be concluded that in order to
solve the problems associated with labour migration, the world community

23
as a whole and individual States in particular need to take the following
measures:
••addressing the causes of migration, that is, taking measures that
promote economic development and reduce the gap between
industrialized States and developing regions;
••ratification of the Convention, which will guarantee the realization
of the rights of migrant workers in the States concerned;
••supporting the process of integration of migrant workers into
professional organizations and joining existing ones;
••assignment of issues of regulation of labour migration to jurisdiction
of the ministries of labour.

References
1. ILO global estimates on migrant workers [ Electronic resource] / International
labour organization.  — 2019.  — Access mode: https://www.ilo.org/wcmsp5/
groups/public/---dgreports/---dcomm/documents/publication/wcms_436343.
pdf. — Access date: 20.10.2019.
2. Абдуллаев, Э.Э. Контроль за соблюдением законодательства о труде мигран-
тов в сфере уголовного права в Российской Федерации, Франции и Объеди-
ненных Арабских Эмиратах / Проблемы экономики и юридической практи-
ки. — 2018 г. — № 5. — С. 241–245.
3. Права человека : изложение фактов № 24 : Права трудящихся-мигрантов. —
Женева : Центр по правам человека при Отделении ООН, 2003 г. — 100 с.
4. Мошняга, В. Молдавские строители в России: проблемы интеграции в при-
нимающий социум [Электронный ресурс] / Демоскоп Weekly. — 2019 г. —
Режим доступа: http://www.demoscope.ru/weekly/2005/0223/analit04.php.  —
Дата доступа: 20.10.2019 г.
5. Международная конвенция о защите прав всех трудящихся мигрантов и чле-
нов их семей [Электронный ресурс] / Организация Объединенных Наций
в  Беларуси.  — Минск, 2019 г.  — Режим доступа : https://un.by/dokumenty/
prava-cheloveka/253-zashchita-trudyashchikhsya-migrantov/4179-
mezhdunarodnaya-konventsiya-o-zashchite-prav-vsekh-trudyashchikhsya-
migrantov-i-chlenov-ikh-semej. — Дата доступа: 20.10.2019 г.
6. International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families [Electronic Reuss] / United Nations Treaty
Collection.  — 2019.  — Access mode: https://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&clang=_en.  — Access date:
20.10.2019.

24
7. Лукашук, И.И. Права трудящихся-мигрантов // Сов. журнал международно-
го права. — М., 1991 г. — № 3–4. С. 134–135.
8. Карташкин, В.А. Права человека: международная защита в условиях глоба-
лизации.  — Институт государства и права РАН.  — М.: Норма, 2009 г.  —
288 с.
9. Таран, П.  Глобализация и трудовая миграция: необходимость политики,
основанной на правах человека // Век глобализации.  — 2010 г.  — № 1.  —
С. 66–88.
10. Щербаков, В. Трудовая миграция в странах СНГ и защита прав трудящихся-
мигрантов / В. Щербаков // Общество и экономика.  — 2004 г.  — № 11–
12. — С. 5–19.

25
The place of human rights
on the global migration agenda

Victoria Davtyan,
winner of the essay competition
“Migration and Human Rights”

The article examines the system of protecting and ensuring of human


rights and freedoms in the regulation of migration processes at the present
developmental stage. International migration policy, the definition of its
global strategic priorities allow us to conclude that in its development it
is necessary to take into account the impact of such factors as political,
economic, social and cultural. The proclamation of the fundamental
rights of a human and his freedoms is the highest value of universally
recognized principles and rules of International law. Migration is a
complex phenomenon affecting all aspects of life of modern society:
international relations, social component, economy, demography, and
regional politics. Migration processes are an integral part of the
development of society and humanity as a whole. At this stage of
development under the influence of globalization, the process of internal
and external migration is inevitable. Consequently, there is a must to
build a proper migration policy. With the right heading migration policy
can have a profound impact on many important processes in society.

Migration is the process of movement across the international border,


or within the country itself, which in turn covers any type of movement
of people, regardless of the reasons. Currently, there are more than
232 million migrants in the world, which constitutes approximately 3 %
of the world population. Despite the fact that many people decide to leave
their country each year for various reasons, an increasing number of
migrants are forced to leave their place of residence for a number of
reasons, including poverty, lack of access to health services, education,
water, food, housing, and in connection with the consequences of

26
environmental degradation and climate change, as well as more
“traditional” factors of involuntary resettlement, such as persecution and
conflict [1]. Thereby, while some people are moving in search of a decent
education, a better job, some economic benefits or family reunion, others
are forced to escape terrorism or violations of fundamental human rights.
The number of those who migrate as a result of natural disasters or other
environmental factors is growing.
Today we are witnessing the movement of people on a huge scale.
More people than ever do not live in the countries of their birth. It is
worth considering that in year 2000 the total number of migrants was
173 million people. However, the share of international migrants in the
total number of inhabitants of the planet has not changed much over the
past decades: 3,4 % in 2017, 2,8 % in 2000 and 2,3 % in 1980
respectively [2]. Over the past 50 years the level of migrants is about
three percent of the total population of the Earth.
Discussions on migration issues are usually based on the positions of
developed states (“first world” countries), where the flows between
developing and developed countries are concentrated. However, if we
turn to statistics, the vast majority of migrants move in their own countries.
The number of internal migrants is about four times that of international
migrants. Moreover, the bulk of movement within international borders
occurs in countries with the same levels of development. About 60 %
move either between developing countries or between developed states
and only 37 % of international migrants move from developing to
developed countries, and 3 % — from developed to developing [3].
For some people migration is a matter of choice, for others it is a
matter of life and death. Today there are 68 million forcibly displaced
persons in the world, including 25 million refugees, 3 million asylum
seekers and more than 40 million internally displaced persons [4].
According to the definition of the International Organization for
Migration (IOM), a migrant is any person who moves or has already
moved across the international border or within the state and has left his
usual place of residence regardless of the legal status of the person;
voluntary or involuntary displacement; reasons for moving; or length of
stay [5].
Like all people, migrants possess human rights. The provisions of
human rights documents cover everyone, including migrants. The right to

27
freedom of movement in and out of the country is recognized by the
Universal Declaration of Human Rights. Article 13 UDHR states that
“everyone has the right to move freely or choose his place of residence
within each state” and “everyone has the right to leave any country,
including his own, and to return to his country”. However, there are no
international documents that would recognize the choice of the country
of residence as a human right [6].
In todayʼs world people are in constant motion and dynamics.
Migration blurs the traditional boundaries between cultures, ethnic groups
and languages, and also contributes to diversity, cultural and economic
wealth and development. For many of us migration is also perceived as
a challenge or even as a kind of a “threat”. First of all, in my opinion,
migration processes are the challenge for the mechanisms of operation
and the protection of human rights, which are designed to ensure full
respect for human rights for all, including migrants; however, despite this,
the rights of migrants are often violated [7].
Although migrants do not initially belong to vulnerable groups, their
rights are frequently violated. Migrants are much more vulnerable to
discrimination, exploitation, and human trafficking. Migrants often seek
to live and work in the shade being afraid to make a complaint and
deprived of their rights and freedoms. Violations of migrantsʼ rights
include, inter alia, denial of civil and political rights, such as arbitrary
detention, torture or lack of legal guarantees, as well as economic, social
and cultural rights, such as the right to health, housing and education.
Denial of migrants’ rights is often associated with discriminatory laws
and ingrained prejudices [8].
Besides, there are many myths around the definition of migration and
the migrants themselves, that are rooted in the heads of people and are
still reflected today. Such myths include the following: migrants live off
public funds; the main reason for migration is the desire to increase
income; migrants steal jobs from the local population, etc. Most of these
myths are in one way or another connected with the economic situation
in the country and society, as well as with employment. Although, if we
delve into this issue, we can conclude that migration processes always
contribute to the development of mankind. According to archaeologists,
almost all people on Earth are migrants: humanity arose in Africa about

28
200 thousand years ago and spread throughout the world  — to Europe,
Asia, Australia and America. Migration processes have always been, are
and will continue to exist in our society since migration is the engine of
progress.
As the economy develops and the population grows, the burden faced
by local specialists and workers increases several times. Therefore, many
countries now need highly skilled migrant workers to work in rapidly
developing sectors of the economy or in sectors where there is a shortage
of local labor. Thanks to migration processes, jobs are emerging. According
to a study by the OECD (Organization for Economic Co-operation and
Development), migrants are expanding the domestic market. In the United
States, for example, immigrant contributions accounted for one third of
economic growth between 2007 and 2013 [9].
As for the state funds spent on the maintenance of migrants, the
majority of migrants pay much more to the state treasury than they receive
benefits from the state. Researches in the UK, Canada, Germany, Greece,
Portugal and Spain show that migrants are to the same or even less
dependent on public funds than local residents [10].
Not to forget, a person’s decision to migrate is mainly related to his
lifestyle. People move around the world to get education, work experience
or to be closer to family and their loved ones. The economic factor is also
important, but in most cases it is not the prevailing one.
If we talk about the migration processes of people with the aim of
finding work and employment, it is worth noting that according to Art. 8
of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, migrant workers and
members of their families are free to leave any state, including the state
of their origin. Migrant workers and members of their families have the
right to enter and remain in their state of origin at any time. Thus, the
right of migrant workers and members of their families to free movement
is regulated by law and must be protected by rules of law.
According to the UN High Commissioner for Refugees (UNHCR),
refugees and asylum seekers constitute a separate group of people because
they left their homes as a result of serious threats to their life and freedom.
UNHCR warns of the risks of blurring the line that separates refugees
from other groups of migrants who moved from one country to another

29
for economic or social reasons to improve their lives, while refugees were
forced to flee in order to save their lives or freedom.
Human rights guaranteed by both national and international law play
the main role in the protection of migrants. The basic rights of all persons,
regardless of their immigration status, include the following: the right to
life, liberty and security of person; the right to be free from discrimination;
the right to protection from violence and exploitation; right to a fair trial
and legal assistance; the right to protection of economic, social and
cultural rights, including the right to health, an adequate standard of
living, social security, normal housing conditions, education, as well as
fair and favorable working conditions and other human rights guaranteed
by international human rights instruments, by a participant which is the
state, and customary international law [11].
All these rights and human rights belong to all people without
exception. These rights are not acquired by people on the grounds that
they are the citizens, workers, or on the basis of any particular provision.
No one can be deprived of his human rights just because he entered the
country or remained on its territory, just as no one can be deprived of
these rights for any reason [12].
It is appropriate to mention the principle of universality of human
rights, which has a certain weight and significance in relation to migrants
[13]. Thus, human rights are an inalienable possession of all people,
without any distinction on the basis of race, color, sex, language,
religion, national, social origin, migration status or any other aspect.
Migrants are not criminals. Migration is the world in motion. And there
is no innovation or horror in looking for your own corner and starting
your life in a new place.

References

1. IOM World Migration Report, 2013. Migrant Well-Being and Development.


2. Кононов, А.А. Миграционная правовая политика (теоретико-правовой
аспект) / А.А. Кононов, А.С. Лукьянов // Новый индекс. Современное пра-
во. — 2010 г. — № 4. — С. 72–76.
3. Миграция и международное право в области прав человека. Практическое
руководство № 6. Обновлённое издание, 2016 г.

30
4. Karen McVeigh. 2008. “Skilled Migrants are Vital to Economy”, Study Says.
Guardian, March 25, p. 10.
5. Защита прав мигрантов в соответствии с нормами Европейской Конвенции
О правах человека и Европейской Социальной Хартии. Пособие для прак-
тикующих юристов. Яннис Ктистакис, Февраль 2013 г.
6. Center for Economics and Business Research, 2007. Future Flows: Forecasting
the Current and Future Economic Impact of Highly Skilled Migrants. London,
CEBR.
7. Дюваль, Ф. Пространственная мобильность населения: индикаторы, катего-
рии и типологии / Ф. Дюваль //Методология и методы изучения миграцион-
ных процессов: междисциплинар. учеб. пособие / Центр миграц. ис-след.;
под ред. Ж. Зайончковской [и др.]. — М., 2007 г. — С. 72–74.
8. UN Report of the Secretary General, International Migration and Development,
UN General Assembly 60th Sessions, May 2006.

31
Regional Migration
Challenges
Legal protection of migrants in the context
of mixed migration flows in Europe

Sabuni R. M.,
aspirant of the Department of international law of BSU

Constant monitoring of human rights and protection of migrantsʼ


rights is a very urgent problem in modern Europe, given that the
mobilization of people is in most cases motivated by situations of a
political, economic, social or environmental nature, as a result of which
people emigrate in search of better living conditions, facing various risks
and numerous violations. The main point is that during displacement,
human rights must be respected in accordance with the universal
Declaration of human rights (1948), which sets out the right to freedom
of movement and the right to choose a new place of residence. The article
considers the consequences of the migration crisis in modern Europe.
This crisis has led to a mixture of migration flows, which has become a
manifestation of a new form and model of displacement.

One of the key manifestations of globalization is the increase in


spatial mobility of the population, involving an increasing number of
people in international migration processes. Thus, cross-border migration
is growing worldwide. The growing mix of forced displacement and
migration presents particular challenges for governments. Indeed, the
migration motives and migration paths of refugees and migrants have
long been difficult to distinguish, in part because asylum is also used for
migration purposes. Many migrants try to obtain residence permits in
destination countries by seeking asylum. As a consequence, the asylum
system in the host countries is severely overloaded, as it was not designed
for refugees of this amount. It is important to emphasize that attempts of
categorical distinguishing of migration flows are directly related to legal
approaches in their regulation.
Researchers-lawyers, such as L.A. Vasilyeva [1], C.V. Kiseleva [2],
A.V. Pokhlebaeva [3], attempted to classify migration according to

33
different criteria and develop its definition, thereby denoting the nature of
migration with the following elements: legal status (legal and illegal
migration), motives (voluntary and forced migration), term (permanent
and seasonal migration), purpose (seeking asylum, obtaining refugee
status, study, work, etc.), territorial direction (external and internal
migration).
A.V. Pokhlebaeva believes that to understand the essence of the
migration process, it is necessary to highlight the legal status of the
migrant (legal or illegal). She notes that “ ... in classifying migration
into these types, it should be borne in mind that legal migration is legal
with: visa, granting of legal status, residence permit, as well as illegal
migration has no such elements” [3, p. 4]. In its turn, L.A. Vasilyeva
identifies five main migration flows: external migration, internal
migration, external labor migration, forced migration, illegal migration
[1, pp. 42–44]. According to C.V. Kiseleva “...the most common
classifications are the following: by territorial limit of implementation
(domestic and international), by duration ((irrevocable, long-term, short-
term (seasonal, pendulum, episodic)), by legality of implementation
(legal and illegal)” [2, p. 33].
Along with the classical classification of migration in the modern
world against the background of events in Europe in 2015, a new type of
migration appeared, which is characterized by the merger of several
migration flows — legal, illegal, economic migration and refugees — into
one powerful stream. These mixed movements (or mixed migration) have
become an extremely acute and complex problem for European countries
and have shown the inefficiency of existing mechanisms, both legal and
institutional, aimed at the adequate regulation of migration processes.
According to UNHCR, the number of forcedly displaced persons
reached 65,6 million by the end of 2016 [4]. As of 2017 55 % of refugees
worldwide came from three countries: South Sudan, Afghanistan and
Syria. Of all displaced persons, 17 % live in Europe. Since then, this
influx, although declining, has nevertheless continued [4]. The number
of asylum applications filed by Syrian refugees in European countries
grew steadily between 2011 and 2017. According to Eurostat data in
2015 alone, more than 1,25  million people applied to the EU for a
refugee status. By December 2017, UNHCR had counted more than one
million asylum applications in 37 European countries (including both EU

34
and non-EU members) [4]. Thus, in 2018, there were 634 700 applications
for international protection in the EU. This is comparable to
728 470 applications in 2017 and two times less than in 2016 (1,3 million).
In 2018, EU countries provided protection to more than 333 thousand
asylum seekers, which is almost 40 % less than in 2017. Almost one in
three (29 %) of them were from Syria, while Afghanistan (16 %) and
Iraq (7 %) rounded out the top three. Of the 96 100 Syrian citizens who
received international protection in the EU, almost 70 % received it in
Germany [5]. However, these figures alone are not able to provide a
complete picture of the current migration processes. For example, they
leave out the diversity of migration motives, as well as the mixing of
migration flows and migration routes.
In order to monitor mixed migration flows, the mixed migration
centre was established in February 2018 (hereinafter — MMC — Mixed
Migration Centre) [6]. It is a global network consisting of six regional
centres and a Central unit in St. Petersburg dedicated to data collection,
research, analysis and policy development in the field of mixed migration.
The MMC is a leading source of independent and high-quality data,
research, analysis and expertise in mixed migration. The MMC seeks to
deepen the understanding of mixed migration, the positive impact of
global and regional migration policies, to inform with evidence-based
responses to protect people in the migration process. The MMC focuses
on human rights and the protection of all people.
In Europe, the migration centre for mixed migration, as one of the
regional centres, was established in February 2019 [7]. Its main activity
is to collect data in Italy and Greece to survey refugees and migrants from
Nigeria, Ivory Coast, Pakistan, Syria, Iraq and Afghanistan. Its aim is to
expand data collection and analysis to cover other migration routes in
Europe, both in the countries of first arrival and on other routes further
within Europe.
The MMC gave a general definition of mixed migration, noting that
it includes cross-border movements of people, including refugees fleeing
persecution and conflict, victims of trafficking and people seeking a better
life and opportunities. Driven by multiple factors, people in mixed streams
have different legal status as well as different vulnerabilities. Although
they are entitled to protection under international human rights law, they
face numerous human rights violations along the way [8].

35
The problem of mixed flows in Europe is increasingly discussed by
international organizations and in international forums, such as the UN
General Assembly and the European Union, when discussing asylum and
migration. However, it should be noted that in modern legal science there
is no detailed study of international legal mechanisms for regulating
mixed migration flows. The difficulty is that people moving in mixed
migration have different goals. In particular, in the case of unregulated
migration, the reasons for leaving the country of origin, i.e. the decision
to migrate, are often not clearly distinguishable. For example, political
persecution, violent conflict and human rights violations can put people
on the run. But, economic crisis and, as a consequence, unemployment,
poverty and lack of prospects can also force a person to leave their
homeland to find a better or safer life elsewhere. In addition, natural
disasters and the loss of natural resources necessary to maintain living
standards, or in the broadest sense, climate change, in turn, can also be
grounds for choosing to emigrate.
These different motives often make it difficult to differentiate between
refugees who are forced to migrate and who are thus entitled to protection
under international law, and immigrants in the broadest sense who migrate
voluntarily and for economic reasons. Thus, both groups do not have a
legal opportunity to immigrate to Europe, for example due to lack of
financial resources or lack of documents. Accordingly, both groups use
the same irregular routes, structures and networks in order to reach
Europe. Often they even use the services of smugglers.
This form of migration not only entails risks for those involved but
also poses serious problems for host countries. Despite all the similarities
between refugees and immigrants with regard to migration routes and
networks, and despite the difficulties in clearly identifying migration
motives, there are indeed differing roles and powers for host countries:
for example, EU countries are bound not only by international law to
protect refugees but also by European and national law. Thus, as rightly
pointed out by N.V. Karkanitsa, “ ... the correctness of the legal regulation
of migration directly depends on its typology, and at the same time, the
main purpose of the typology of migration in public policy is to create a
tool for dividing the general category of migrants, in particular, the
division of mixed flows of migrants into subgroups that can be managed
separately” [9, p. 89].

36
In our opinion, the main problem of dividing mixed flows of migrants
into subgroups is the lack of reliable data. Up-to-date data on migration
flows are particularly important for tracking the dynamics of mixed
migration. The statistics currently available is insufficient, as the exact
volume of mixed migration and its trends over time are unknown.
However, their availability could help in assessing the proportion of
refugees in mixed migration flows. Moreover, the motives and paths of
refugees and migrants are becoming increasingly difficult to differentiate,
making it difficult to divide them into subgroups. But differentiation is
necessary from the point of view of migration policy.
Another problem is that all States that have signed the Geneva
Convention relating to the status of refugees (1951) have an obligation to
protect refugees. In contrast, they approach the issue of the admission of
migrants and their admission to the labour market on the basis of their
own interests and the sovereign decision of the host country.
The above indicates the need to develop legal norms establishing the
legal status of migrants. For this reason, the members of The United
Nations, in the 2030 agenda for sustainable development, decided to
“promote orderly, safe, legal and responsible migration and mobility of
people, including through the implementation of planned and well-thought
migration policies” [10]. Thus, on the basis of the 2030 agenda for
sustainable development, the UN Global Сompact on safe, orderly and
legal migration was developed, which deals with migrants and is a
framework document. It notes that “... refugees and migrants enjoy the
same universal human rights and fundamental freedoms that must be
respected, protected and exercised on a permanent basis. However,
migrants and refugees are separate groups with different legal and
regulatory instruments. Only refugees are entitled to specific international
protection as defined by international refugee law” [11]. To date, the UN
Global compact on safe, orderly and legal migration is the first international
mechanism of cooperation on migration, the application of which by
interested States, regional and universal international organizations could
solve the problem of mixed flows of refugees and migrants in Europe.
However, a number of European States (Hungary, Austria, Poland,
Czech Republic, Slovakia, Italy, Latvia) refused to sign this Treaty, citing
a threat to the national interests and sovereignty of their countries, since
migrants in general pose are a huge economic and social risk to countries

37
in general, and to the population in particular, especially in the issue of
integration.
European migration policy in recent decades has been guided by the
principle of “Europeanization of migration policy”, which implies
migration within Europe, but the current migration flows to Europe are
directed from outside. Thus, the problem of population migration in
modern Europe, which was called the “European migration crisis”, which
began in 2015, showed primarily ineffective legal mechanisms for
regulating migration flows.
As new patterns of displacement emerge, including forms of
displacement and forced migration that do not fall under international
refugee law, it must be borne in mind that, in addition to refugees, there
are other categories of persons who need international assistance and
protection. The normative consolidation of the concepts of “migrant” and
“migration” in international law would contribute to the solution of many
issues related to the legal protection of migrants. At the same time, it is
necessary to harmonize the legislation of European countries on the
regulation of migration processes.
Monitoring the dynamics of mixed migration and obtaining reliable
data, in assessing the share of refugees and migrants in mixed migration
flows, is necessary to enhance the collection and analysis of data to cover
other migration routes in Europe, both in the countries of first arrival and
on other routes further within Europe. In this regard, improving EU
cooperation with countries of origin and countries of transit is a key task.
Refugee flows must be prevented as much as possible because they are a
humanitarian disaster. On the contrary, voluntary migration is an important
driver of development if it is managed on the basis of equitable agreements
between countries of origin and host countries, and if the rights of
migrants are respected.

References
1. Васильева, Л.А. Связь межу убежищем и миграцией: учеб.-метод. пособие /
Л.А. Васильева [и др.]. — Минск: Асобны, 2007 г. — 240 с.
2. Киселева, Е.В. Международно-правовое регулирование миграции: учебное
пособие / Е.В. Киселева. — 2-е изд., перераб. и доп. — М.: РУДН, 2015 г. —
398 с.

38
3. Похлебаева, А.В. Понятие миграции и ее классификация / А.В. Похлебаева
// Журнал международного права и международных отношений. — 2005 г. —
№ 3. — С. 3–6.
4. UNHCR Population Statistics  — Data  — Overview //  UNHCR Population
Statistics [Electronic resource].  — Mode of access: http://popstats.unhcr.org/en/
overview. — Date of access: 30.09.2019.
5. European Parliament News. Asylum and migration in the EU: facts and figures
// European Parliament [Electronic resource].  — Mode of access: http://www.
europarl.europa.eu/news/en/headlines/society/20170629STO78630/asylum-and-
migration-in-the-eu-facts-and-figures. — Date of access: 29.09.2019.
6. Mixed Migration Center. Introduction to the Mixed Migration center. [Electronic
resource].  — Mode of access: http://www.mixedmigration.org/wp-content/
uploads/2019/10/terminology_MMC.pdf. — Date of access: 05.11.2019.
7. Mixed Migration Center // Europe. Mixed Migration Regional hub [Electronic
resource]. — Mode of access: http://www.mixedmigration.org/regions/europe. —
Date of access: 05.11.2019.
8. Mixed Migration Center [Electronic resource].  — Mode of access: http://www.
mixedmigration.org/home/Mixed Migration Center. — Date of access: 08.10.2019.
9. Карканица, Н.В. Определение вынужденной миграции // Международные
отношения: история, теория, практика: материалы VIII науч. практ. конф.
Молодых ученых.  — ф-т междунар. отношений БГУ.  — Минск : БГУ,
2018 г. — С. 89–91.
10. Refugees and Migrants. World leaders’ spotlight 2030 Agenda, climate action at
UN General Assembly’s annual debate // Refugees and Migrants [Electronic
resource].  — Mode of access: https://refugeesmigrants.un.org/world-leaders-
spotlight-2030-agenda-climate-action-un-general-assembly’s-annual-debate.  —
Date of access: 08.10.2019.
11. UN General Assembly. Global Compact on Safe, Orderly and Regular Migration:
Final Draft, 11 July 2018. [Electronic resource]. — Mode of access: https://www.
un.org/pga/72/wp-content/uploads/sites/51/2018/07/migration.pdf  — Date of
access: 29.10.2019.

39
Integration starts at home

Anna Fedas

“We, the female and male inhabitants of Gdańsk, call with an urgent
request …” begins an appeal to the City Council of Gdańsk to resettle
families and orphaned children from the city of Aleppo in Syria. “Idly
watching the fate of these people is unbearable and inhumane. Fortunately,
we have an independent, local government of the free and proud city of
Gdańsk. We are counting on you.”
“Increasing migratory flows are a fact. So far, Poland has hardly faced
any problems concerning the integration of immigrants. It is likely,
though, that in the near future local governments will need to address the
challenges connected with the influx of people from different parts of the
world who speak different languages, have different values, and possibly
worship a different God.” This is how the document introducing the
Immigrant Integration Model for the city of Gdańsk begins. It is the first
cross-sectoral interdisciplinary task force which was elaborated in Gdańsk
in May 2015 and officially accepted by the City Council in June 2016.

Grassroots approach
The fact that the Polish government has refused to take part in the
refugee resettlement programme, and to open a humanitarian corridor for
Aleppo, does not mean that all Polish cities and all citizens share this
attitude. Two grassroots initiatives from the Tri-city area of Gdańsk,
Gdynia and Sopot show that there is an alternative to Poland’s anti-
immigrant discourse. The first is characterised by the changes in the
system as represented by the Immigrant Integration Model (IIM). The
second is the initiative taken up by the inhabitants of the Tri-city, together
with local immigrants and refugees.
The dominant discourse on the recent rapid influx of migrants into the
EU, known as the refugee crisis, in Poland does not help to understand

40
the actual situation of migrants and refugees in the country. In fact,
foreigners have been living in Poland for many years, although mostly in
big cities. According to the Office for Foreigners in Gdańsk, on January
1st 2016, there were 211 869 foreigners (82 with refugee status, including
21 Syrians) registered in Poland, a country with a population of 40 million.
Most of the registered migrants (65 866 in total) are from Ukraine. At the
beginning of 2016 there were 9134 foreigners registered in Gdańsk alone
(including 2693 from Ukraine) and the numbers nearly double when we
also take into account foreign students (over 2000), Polish visa holders
(1000), and those with refugee status (up to 15).
“We have over 20 visitors and about 40 phone calls a day asking for
assistance with documents needed for temporary/permanent residence
permits as well as procedures on how to set up a business in Poland,”
explains Yulia Szavlovkaya from the Immigrants Support Centre (Centrum
Wsparcia Imigrantów i Imigrantek w Trójmieście), an NGO providing
assistance to migrants in the Tri-city area. They support the newcomers
in various ways: show how to apply for temporary residence and work
permit using the electronic system, what documents companies should
prepare to employ non-EU citizens, what to do when an employer does
not pay wages, and who to refer to in case of discrimination.
The latter in particular has been a growing problem. The number of
reported hate crime incidents and the level of hate speech have been on
the uptick. According to police statistics the number of proceedings
initiated for hate crime incidents against people of different race, ethnicity
or religion has increased from 678 in 2014 to 954 in 2015. The most
common victims are Jews (154 cases), Muslims (140 cases) and Roma
(123 cases).

The spirit of solidarity


Gdańsk is known worldwide for the role it has played in history: the
place where the Second World War broke out and the birthplace of
Poland’s Solidarity movement. Are these new immigrant initiatives
evidence that the spirit of solidarity lives on today? Do historical references
help the inhabitants of Gdańsk maintain this spirit? Or maybe it is due to
the size of the city and the number of NGOs which enable a relatively
greater success of such projects than in other cities like Warsaw? Zygmunt

41
Bauman, the famous sociologist who passed away in January this year,
understood solidarity as one of the three foundations of society, together
with trust and responsibility. According to Bauman’s diagnosis, published
in Gazeta Wyborcza in April 2012, Polish society still lacks these three
values. Without these foundations, Poles will never find peace as a society.
“Following the current situation in Poland, one may ask, ‘What
happened with Polish solidarity?’”, — says Basil Kerski, the director of
the European Solidarity Centre in Gdańsk. “Is it because most Poles have
never deeply understood Christian values, which seem to be the basis of
their identity? Or maybe the reason is that the Polish elite have not
matured enough to face the challenges of today’s world? Most have
matured enough to lead the transition process, but seemed to have failed
when they had to face the current issues and show solidarity with the
countries of Western and Southern Europe. The encouraging news is that
civil activists may be ahead of the elite and that is why grassroots
initiatives are to become role models for innovative policy”,  — he
concludes.
However, among professional politicians there are also people who
have the courage to work on less popular topics. When it comes to
immigration policy, Paweł Adamowicz, the Gdańsk city Mayor, has
emerged as one of the brave voices. But the local government is not the
only one helping out. In 2016, after reading an article about a refugee
camps for children in Italy, Zosia — an artist, trainer, university lecturer,
mother of four children and president of the Educational Foundation
ODiTK  — decided to do something to help the children in need. She
assumed that while Poles might be afraid of refugees, they cannot be
afraid of children. “My family democratically decided to invite a refugee
orphan or orphan siblings from Syria”,  — Zosia said. She did some
research among her friends and created a Facebook group dedicated to
refugee child adoption and foster care called “Refugee children  —
adoption/creating foster families” (pol. Dzieci uchodźcze  — adopcja/
tworzenie dla nich rodzin zastępczych). With the help of Zosia’s friend,
Katarzyna Kifner, a representative of a large company to financial
institutions, the group was soon joined by enthusiasts who support the
initiative, including migrants, trauma experts who work with children in
camps in Berlin and the Middle East, lawyers, psychologists, non-
governmental organisations, and many others.

42
Although there are still no international rules regulating the scope and
form of adoption and foster care for refugee children  — orphans and
unaccompanied minors, victims of war  — there is a hope that such
provisions will soon be in place. The EU has recently announced an
international competition to create a model of support for unaccompanied
immigrant minors. Zosia and Katarzyna do not lose hope and enthusiasm.
They are seeking aid from other European organisations which might join
or support their efforts to help children and victims of war. Zosia dreams
of a scholarship system and Katarzyna has begun to learn Arabic and is
planning to join a volunteer team helping children in a refugee camp on
the Greek island of Chios during her holiday break this year. Meanwhile,
both Katarzyna and Zosia are organising, together with a local informal
group of enthusiasts, several events including concerts, “Gdańsk Aleppo
Fair”, Valentines Day “Heart for Syria”, workshops etc. to collect money
for the residents of Aleppo and to raise awareness of the situation on the
ground among Gdansk citizens. Through such actions they also want to
organise a better support for Syrian migrants already living in Poland.

Policy framework
Yet, this is not the only charity initiative in the Tri-city area. After the
midnight mass on the Christmas night in St. John’s Cathedral in Gdańsk,
nearly 2000 euros were collected and transferred to the Polish Humanitarian
Action. Caritas Gdańsk has also gathered money during the Epiphany. On
December 26th a Polish woman living in Berlin organised a march in
solidarity with Aleppo, which was joined by volunteers from all over
Europe. They aim to march into the war-torn city.
The grassroots charity and humanitarian initiatives, however, do not
relieve us of the obligation to help immigrants and refugees already living
in our communities. “I appreciate the charity work but I also see the need
to work at the local policy level. The lack of procedures and integration
law in Poland is not only an issue for immigrants and refugees”, — says
Marta Siciarek from the local Immigrants Support Centre. “No matter
what politicians say at the central level, there is also the local level where
we all have been suffering from the lack of procedures and integration
law. That is why we had such a motivation to develop the model”, — she
added.

43
Lilyana Dulinova, a Ukrainian student of Chinese at the University
of Gdańsk, quickly became the co-creator of the model. “I was lobbying
for an information and support programme for foreign students”,  —
Dulinova explains. “Personally, I lost a lot of nerve having to deal with
all the procedures, including gaps in the health care system for foreign
students. I hope that those who come in the future won’t have to deal with
such issues anymore”, — she continued.
At the same time, the lack of procedures is not only a matter of the
higher education system. “In schools in Gdańsk there are more than
200 foreign children. One may think that the schools and teachers have
been already prepared to host a child with a migrant background”,  —
explains Nina Markiewicz-Sobieraj, the headmaster at primary school
number 16 in Gdańsk, who is also responsible for the educational part of
the city’s model. “But the truth is that at the beginning we had no time
to prepare our teachers and other pupils. The lack of Polish language
competency, culturally motivated misunderstandings with parents, special
menu for students who don’t eat pork for religious reasons, teachers
without intercultural competences, a lack of Polish personal identity
numbers (which are needed for exams), all these challenges were arriving
with the children”, — Markiewicz-Sobieraj explained. “Our goal was to
provide for the children’s welfare and their integration (not assimilation),
and eventually my teachers and I became role models for other schools
in Gdańsk”, — she added.
“There should be extra lessons during which new kids could integrate
with the class”,  — says a ten year-old Nazar who moved from Ukraine
to Gdańsk two years ago. “I came from another country, other kids knew
almost nothing about it. I also couldn’t answer to all of the questions
because of the language.” Nazar now speaks fluent Polish and attends the
fourth grade of one of the public primary schools in Gdańsk. He has got
a lot of friends, good grades and attends football classes. “Nazar is a very
talkative and sociable child. Thanks to that, he has integrated very quickly
but not every child is able to fit in so smoothly”,  — the child’s mother,
Natasha Kovalyshyna, explained. “That’s why the school system should
be prepared for every type of child’s disposition and temperament”,  —
she added.

44
Places and main actors of integration
Schools are not the only places where integration can take place.
Cultural institutions and organisations can also take on this role. “Everyone
knows that culture is one of the best tools for integration. It is a space for
dialogue and understanding”,  — says Patrycja Medowska, the deputy
director of the European Solidarity Centre and the leader of the cultural
part of the model. “If it is so obvious, why so few institutions offer
programmed facilitating real integration between immigrants and the host
society? And why so few institutions of culture ask themselves if their
offer is available for immigrants (not just because of economic reasons)
and if their staff have the proper skills to start a dialogue with immigrants.
One of our proposals in the model is to encourage many cultural
organisations to work towards the integration of Poles and foreigners —
without stigmatisation, and one-sided and superficial presentation of each
culture. It is not easy, but there are a lot of ideas on how this can be
implemented”, — Medowska explained.
Moreover, immigrants themselves can be the main actors of the
integration process. A newly launched Council of Immigrants in Gdańsk
helps newcomers to influence the process and become agents of change.
“I would like the immigrants to finally feel represented by the Council:
by us, who are people like them”,  — says one of the Chairmen of the
Immigrants Council, Karol Liliana Lopez, who came to Gdańsk from
Colombia. “My personal ambition is to encourage immigrant women to
participate in the public life. I would like them to realise that beyond the
legalisation of their residence and the incorporation into the labour market,
we — the women of Gdansk — can be free, strong, innovative, capable,
resilient and we can continue with our social and personal development”, —
Lopez said.
“I engaged with the city of Gdansk in 2015 when they started the
process of writing the immigrant integration model and I was happy to
help them benefit from the experience of the Eurocities network on this
topic”,  — says Thomas Jezequel, a policy advisor on social inclusion
from the Eurocities Network in Brussels. “The work accomplished since
has been tremendous and should be an example for all cities in Central
and Eastern Europe willing to improve the way they deal with migration

45
and diversity. In a hostile context, marked by increasingly populist and
xenophobic attitudes, the role of cities like Gdańsk is fundamental to
defend the values of European solidarity, openness and inclusiveness.”
Can we treat Gdańsk’s initiatives fostering the integration of
immigrants and refugees as a new form of the solidarity spirit from the
1980s? Will this spirit set Polish society free in line with Bauman’s
conception of three values? The “new solidarity” has the potential to help
Central and Eastern Europe, and maybe the whole Europe, to embrace
diversity and inclusion of the “other”. For both integration and solidarity
begin at home.

46
Measuring and Improving Integration of Beneficiaries
of International Protection: case of Lithuania

Giedrė Blažytė,
PhD, Diversity Development Group

The asylum procedure has been implemented in Lithuania for more


than two decades. However, it has been started to talk about the issue
more publicly only when the numbers of asylum seekers peaked in the
aftermath of so called “migration crisis” in 2015. The latter year also
marks the beginning of significant changes and developments regarding
to integration of beneficiaries of international protection both on policy,
legal and practical levels.

This paper examines the asylum procedure applied in the Republic of


Lithuania; main legal acts putting the grounds for the implementation of
integration of beneficiaries of international protection and major actors
playing in the field. In addition, the results of international research the
“National Integration Evaluation Mechanism” (NIEM) are presented to
highlight the differences among various integration dimensions and legal
and policy frameworks.

Asylum in the Republic of Lithuania


The asylum procedure has been implemented in Lithuania since 1997,
when the Geneva Convention relating to the Status of Refugees (1951)
and its Protocol (1967) were ratified and the Law on the Status of Refugees
(later replaced by the Law on the Legal Status of Aliens on 30 April
2004) entered into force. By ratifying the Geneva Convention, Lithuania
committed to defend asylum-seekers on its territory and create favourable
conditions for their integration in line with the provisions of the
Convention.
Under the Law on the Legal Status of Aliens [1] (hereinafter the
“Law”), asylum in the Republic of Lithuania means refugee status or

47
subsidiary protection granted to an alien in the Republic of Lithuania
(RL) on the grounds and in accordance with the procedure laid down by
the Law. A refugee status is granted to an asylum applicant who, owing
to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion,
is outside the country of citizenship and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country or who, not
having a citizenship of and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it (Art. 86.1). Subsidiary protection is
granted to an asylum applicant who is outside his country of origin and
is unable to return to it owing to well-founded fear that: 1) he will be
tortured, subjected to cruel, inhuman or degrading treatment or punishment;
2) there is a threat of death penalty or execution; 3) there is a serious and
individual threat to his life, health, safety or freedom by reason of
indiscriminate violence in situations of international or internal armed
conflict (Art. 87.1). The Law also stipulates the granting of a refugee
status to aliens relocated to the RL in cooperation with other European
Union (EU) Member States, third (non-EU) countries, EU institutions, or
international bodies (Art. 87).
Between 1997 and 2018, a refugee status was granted to more than
800 asylum applicants, and subsidiary protection anchored in the EU
legislation has been granted to over 500 individuals since 2004 [2].
Unofficial sources say that currently there are between 300 and 350 aliens
with a refugee status or subsidiary protection residing in Lithuania.
Traditionally asylum applications received in Lithuania have been
low when compared to Western Europe and Nordic countries. However,
the number of asylum seekers, refugees and beneficiaries of subsidiary
protection still peaked in the aftermath of so called “migration crisis” in
2015. Compared to 2015, in 2017, due to more intense relocation/
resettlement processes, the number of asylum applications increased
52 per cent. In 2018 the number of asylum applications slightly
decreased  — totally 424 applications were received, 136 persons were
granted refugee status and 18 — status of subsidiary protection. Majority
of foreigners granted asylum is from Syria (54 per cent of all persons
granted refugee status in the RL in 2018), following citizens of Tajikistan,
Russian Federation, Turkey and Afghanistan.

48
Lodged applications of asylum and adopted decisions (2015–2018)

750

599
600

450 425 424 2015


2016
2017
291 278 278 280
300 255 2018
172 171 181
147 132 136
150 109
69
17 14 13 18
0
Asylum Rejected Pending Refugee Subsidiary
application application* application status protection

Source: migration department, 2016–2019 [3].

In 2015, Lithuania joined the European Commission Emergency


Relocation Scheme and began the relocation of foreigners from the EU
Member States that face numerous asylum seekers. Lithuania has
committed itself to receiving 1077 asylum seekers from Italy, Greece and
third countries by the 31st of October 2019 [4]. By the beginning of 2019,
486 asylum seekers were relocated to the territory of the RL  — Syrian
citizens, Eritrean nationals and stateless persons (mostly residing in Syria
before the departure). It is important to note that from 468 relocated
asylum seekers, 344 have left the country, while 21 have been returned
and 7 came back voluntarily.

Integration of beneficiaries
of international protection: legal acts and major actors
Integration of persons who have been granted asylum in the RL and
their family members (in the case of a family reunification) is done in line
with the Resolution On the Approval of the Description of the Procedure

49
of State Support for the Integration of Persons Who have been Granted
Asylum (hereinafter the “Description”) by the Government of the RL [5].
The Description governs the grounds, organisation of the granting of state
aid for the integration of persons who have been granted asylum in the
RL and their family members in the case of a family reunification to the
RL, the granting and administration of the aid, the payment of monetary
disbursements and subsidies.
Major actors in the field of integration of beneficiaries of international
protections in RL are the Ministry of Social Security and Labour, the
Refugee Reception Centre and two non-governmental organisations
(NGOs)  — Caritas of Vilnius Archdiocese and Lithuanian Red Cross
Society  — that have won the public tender to support integration of
beneficiaries of international protection on a municipal level.
The Ministry of Social Security and Labour coordinates and supervises
the provision of support for integration, analyses social processes related
to integration and drafts legal acts in order to ensure effective support for
integration. It is also responsible for the administration of the Asylum,
Migration and Integration Fund (AMIF), which is a key EU financial
instrument aimed at supporting the implementation of the EU asylum
legislation in the EU Member States.
There are two stages of integration of beneficiaries of international
protection in RL. First stage of integration takes place at the Refugee
Reception Centre, which lasts up to three months, with a possibility to
extend it to vulnerable groups for up to 6 months. During this period of
integration, social workers from the Refugee Reception Centre, in
collaboration with the Labour Exchange, assess refugees’ skills and
qualifications, check their health, perform an assessment of any health
problems, disabilities and others. Refugees are intensively taught
Lithuanian language and Lithuanian culture so that they are properly
prepared to integrate into the Lithuanian society and labour market.
Persons who are granted asylum in RL living in the Refugee Reception
Centre receive a monthly allowance (according to a set procedure)
enabling them to pay for food and pocket expenses.
After the integration period at the Refugee Reception Centre is over,
the support for integration is provided at the municipal territory, which
lasts 12 months, with a possibility to extend it to vulnerable groups for
up to 36 months. At this stage of integration NGOs play the major role

50
by providing mentoring services for beneficiaries of international
protection. Mentors provide for foreigners a wide range of services
including acquiring basic necessities; renting an apartment; finding an
employment; helping them complete and prepare all necessary documents;
paying out cash benefits; providing advices on various issues relevant for
successful incorporation into the society. During the period of integration
support on a municipal territory level, persons who are granted asylum
receive a monthly allowance for their essential needs (apartment rent,
utilities, food, transport and others).

Measuring and Improving Integration of Beneficiaries


of International Protection: case of Lithuania
The results of international research the “National Integration
Evaluation Mechanism” (NIEM)1 reveal that “the quality of integration
policies for beneficiaries of international protection vary widely across
European countries, in spite of the standards set by EU and international
law” (Wolffhardt, Conte and Huddleston, 2019:33) [6]. In addition,
authors of the Baseline report of the study claim that incomplete and low
quality integration policies in the EU Member States create different
opportunities for beneficiaries of international protection not giving same
fair and reasonable chance for their integration.
The NIEM study results show that the East-Central European countries
(Czech Republic, Latvia, Lithuania and Poland) and Central/South-
Eastern Europe countries (Hungary, Romania and Slovenia) share most
common features regarding to integration of beneficiaries of international
protection and define them as having “weaker linkages to longer-term
integration frameworks” (Wolffhardt et al., 2019:29).

1 The National Integration Evaluation Mechanism (NIEM) is a transnational

project which aims to prepare key actors in the integration field in 14 EU Member
States to better face the current challenges and improve the integration outcomes
of beneficiaries of international protection. The 14 countries that have undergone
a comparative, indicator-based assessment in the NIEM baseline and Evaluation
1 research phase have been the following: Czechia, France, Greece, Hungary,
Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovenia, Spain
and Sweden. More information is available here www.forintegration.eu/

51
The quality of integration policies for beneficiaries of international
protection in the Republic of Lithuania varies widely within integration
frameworks (legal, policy and implementation) and different integration
dimensions (legal integration, socio-economic integration and socio-
cultural integration). According to the latest results of the study1, on a
scale from 0 to 100 the median score of Lithuania in three steps are 81
(legal framework) indicating favourable situation, 52,3 (policy framework)
and 53,1 (implementation and collaboration), which indicate halfway
favourable situation.
Looking at the legal indicators across different dimensions, on
average, housing, vocational training and health are the areas with the
most favourable conditions both for recognised refugees and beneficiaries
of subsidiary protection. Citizenship emerges as the dimension with the
least favourable conditions under the legal framework. Particular
weaknesses include the requirements for naturalisation that are not
facilitated to beneficiaries of international protection and are the same as
for ordinary third country nationals. In addition the procedure of
naturalisation for the children born in the country to beneficiaries of
international protection (second generation) is the same as for the 1st
generation.
Evaluating policy indicators across different dimensions related to
legal, socio-economic and socio-cultural integration, residency, language
learning and social orientation are the areas with the most favourable
conditions with family reunification and social security somewhat behind.
On the other hand, “building bridges”, education and vocational training
emerge as the dimensions with the least favourable conditions. In the area
of “building bridges” particular weaknesses include lack of publicly
funded campaigns to sensitize the host society about the situation of
beneficiaries of international protection and target prejudices and
perceptions among them.
Regarding to the dimension of education the greatest weaknesses, first
of all, include the fact that education law does not take into account the
specific situation of vulnerable persons receiving international protection.
1 After completing Baseline report, which refer to the analysis of the legal

and policy framework in place as April 2017, an Evaluation I of the study has
been implemented in order to assess the developments within policy and legal
frameworks in the project partners’ countries.

52
Secondly, there are gaps placing children of beneficiaries of international
protection in the compulsory school system (the country does not provide
nation-wide criteria to assess their level of education and prior learning;
does not provide assessments with appropriate translation or in the first
language of the child; there is no a mechanism to monitor the placement
of these children in “special needs” schools, etc.). Finally, there is no
awareness raising to inform community of the education institutions
(staff, school children, etc.) about the specific situation of beneficiaries of
international protection.
The weakest dimensions in the area of vocational training is also
related to the awareness about the specific challenges beneficiaries of
international protection may face because of their specific situation, as
well as, with the fact that the country does not provide targeted measures
to increase the participation of beneficiaries of international protection in
vocational training and employment related education (i.e. scholarships,
campaigns, orientation, support) and does not take any actions (i.e.
campaigns, guidance, support) to encourage employers to provide and
increase the number of vocational training and employment-related
courses for beneficiaries of international protection.
Comparing the results of the Evaluation I of the NIEM, which covers
the period of April 2017 to 2019, with the data of the Baseline research,
referring to the legal and policy framework on place as April 2017, the
greatest changes within the policy framework are noticed in the area of
social security. They key changes have to do with the legal harmonisation
of the rights of persons who have been granted a refugee status and
subsidiary protection in the RL. Until 2017, foreigners under subsidiary
protection were in a much more vulnerable position because due to the
temporary permit for residence in the RL they were denied certain social
guarantees. On 1 October 2017, new items were included in the Law on
Benefits to Children of the RL and the Law on the Social Integration of
the Disabled of the RL, on 1 January 2018, to the Law on Relief Pensions
of the RL as well, stipulating that the provisions of the laws would also
extend to foreigners who have been granted asylum in the RL. Before said
amendments were made, individuals under subsidiary protection were
exempt from the provisions of the above laws. Despite the relevant
developments, the results of the Evaluation I reveal that foreigners under

53
the subsidiary protection remain in more vulnerable position comparing
with the persons granted the refugee status.
The significant changes can be also noticed within the Implementation
and Collaboration step, which was previously scored 26.0 out of 100. The
increase of scores is mainly related to the adoption of the “Action Plan
2018–2020 on the Integration of Foreigners into Lithuanian Society”
(hereinafter Action Plan) [7] at the end of 2018. This plan aims to improve
the implementation of integration of foreigners (including asylum seekers
and beneficiaries of international protection in RL) and ensure their
successful integration into society. The Action Plan also includes measures
of monitoring and research of the implementation of foreignersʼ integration
process and policy which is particular significant aiming to achieve
successful foreignersʼ incorporation into the local society. The
implementation measures of the Action Plan are funded with appropriations
of the state budget of the Republic of Lithuania for the ministries and
bodies participating in the implementation of the Acton Plan, and with
money of the EU funds (Chapter III, 67 para.). However, the State budget
funds constitute only a small part of all financial resources foreseen for
the Action Plan implementation.

Conclusions
Lithuania receives relatively low numbers of applications for asylum
in the Republic of Lithuania. However, due to the resettlement/relocation
process caused by the so called “migration crisis”, the number of asylum
seekers has increased in recent years. The last few years also mark
significant changes and developments regarding to integration of
beneficiaries of international protection both on legal, policy and practical
levels. The results of international study the “National Integration
Evaluation Mechanism” (NIEM) reveal that integration of beneficiaries of
international protection highly varies among different dimensions and
policy, legal and implementation frameworks. Many significant changes
and developments regarding to integration of beneficiaries of international
protection have been implemented since 2017, however, there are still lot
of gaps and weaknesses that need to be solved and improved. Under the
legal framework citizenship emerges as the dimension with the least
favourable conditions both for recognised refugees, and beneficiaries of

54
international protection. Policy indicators are evaluated as a halfway
favourable, however, especially high attention is needed to the dimensions
related to education, vocational training and “building bridges”. During
the recent years the greatest improvements are noticed within the
implementation and collaboration step. This is mainly related to the
adoption of the “Action Plan 2018–2020 on the Integration of Foreigners
into Lithuanian Society”, which also covers the areas of integration of
beneficiaries of international protection.

References
1. Seimas of the Republic of Lithuania (2004), Republic of Lithuania Law on Legal
Status of Aliens, 29 April 2004, no. IX-2206.
2. Migration Department under the Ministry of the Interior of the Republic of
Lithuania. Asylum Affairs Division (2019), Asylum in Lithuania 2018.
3. Migration Department under the Ministry of the Interior of the Republic of
Lithuania. Asylum Affairs Division (2016; 2017; 2018; 2019), Asylum in
Lithuania 2015; Asylum in Lithuania 2016; Asylum in Lithuania 2017; Asylum
in Lithuania 2018.
4. The Government of the Republic of Lithuania (2015), Resolution on the
Relocation of Asylum Seekers to the Territory of the Republic of Lithuania,
22 June 2015, no. 628.
5. Government of the Republic of Lithuania (2016), Resolution on the Approval of
the Description of the Procedure of State Support for the Integration of Persons
who have been Granted Asylum, 5 October 2016, no. 998.
6. Wolffhardt, A., Conte, C., Huddleston, T. (2019), The European benchmark for
refugee integration: A comparative analysis of the National Integration Evaluation
Mechanism in 14 EU countries, Migration Policy Group and Institute of Public
Affairs, June 2019.
7. Ministry of Social Security and Labour (2018), Order on the Approval of the
Action Plan 2018–2020 on the Integration of Foreigners into Lithuanian Society,
21 December 2018, no. A1-755.

55
National Migration Policy
and Human Rights
Deportation and expulsion

Eugene Maslov

The present report examines general legal provisions on expulsion


and deportation of foreign citizens and stateless persons in the Republic
of Belarus. Among other issues analyzed in the report there are grounds
for the decision on expulsion or deportation, legislative framework and
appealing against such decisions.

The main part of the report, based on evidence gained during


attorney’s professional activities, formulates circumstances that are being
examined by competent officials and the court while considering appeals
against imposing administrative charges in form of deportation or
expulsion. Additionally, a focus is made on complementary procedure of
filing a motivated request for reducing duration of a prohibition on entry
into the Republic of Belarus.

The report formulates practical recommendations for cancellation of


decision on expulsion or deportation, provides features of to-be-expelled
persons that have to be taken into consideration while deciding on
cancellation of expulsion or deportation as well as on reducing duration
of a prohibition on entry into the Republic of Belarus.

Legal status of foreign citizens and stateless persons residing on the


territory of the Republic of Belarus is enshrined in the law No.  105-3 dd.
04.01.2010 “On legal status of foreign citizens and stateless persons in
the Republic of Belarus” (hereinafter — the Law).
In cases of acting contrary to the constitutional and other legal
provisions, the foreigner may be subjected to either procedure of expulsion
or — in administrative cases — deportation from the Republic of Belarus.
Although both expulsion and deportation have a common aim of
expelling a non-complying foreigner from the State, these procedures

57
have different normative frameworks, grounds for their application, and
appealing procedures.
Deportation is an independent form of administrative penalty
stipulated in the article 6.11 of the Code of Administrative Offences
(hereinafter — CAO). A procedure of appealing against the judgement on
imposing an administrative penalty in form of deportation of a foreign
citizen or a stateless person has to be carried out in accordance with the
provisions of the Procedural-Executive Code of Administrative Offences
(hereinafter — PECAO). The judgement on imposing the administrative
penalty in form of deportation has to be well-grounded. It can be subjected
to appeal within 5 days from the date of its pronouncement. The appeal
is to be filed to the superior authority or the court via the authority that
has delivered the decision on deportation.
In accordance with the article 65 of the Law, expulsion may be
imposed on a foreign citizen for the protection of national security of the
Republic of Belarus or of public order, or of public health or morals as
well as of rights and freedoms of citizens of the State and other persons.
Also expulsion can be imposed following the release from an arrest house
or correctional facility if the person cannot be subjected to deportation.
An appeal against the decision on expulsion to the court has to be
filed after the appeal to the supreme authority in regard of the competent
authority that has delivered the judgement. The appeal against the actions
or inaction of the State entities and officials to the court is regulated by
the Code of Civil Procedure of the Republic of Belarus. The appeal to the
court can be filed within a month from the date of denial of the appeal to
the supreme authority.
In cases of both expulsion and deportation, a foreign citizen has a
right to stay on the territory of the Republic of Belarus while his appeal
is pending. If the appeal is denied, after the date of the decision coming
into force, the foreign citizen still has an additional period of time for
leaving the Republic of Belarus.
In case of a foreigner being subjected to deportation or expulsion, s/
he are getting included in the List of persons whose entry into the Republic
of Belarus is prohibited or undesirable. The term of prohibition on entry
is determined by the authority delivering the decision on deportation or
expulsion, and depending on the circumstances of the concrete case and
person can variate from 6 month up to 10 years.

58
A special attention require circumstances examined by the officials
and the court while considering appeals against the judgements on
deportation or expulsion, or while verifying legitimacy of such judgements,
and, consequently, the issues that the appeal has to cover.
While appealing against the decision on imposing an administrative
penalty in form of deportation or expulsion a compliance with the norms
of substantive law have to be examined, in particular, legitimacy of
imposing an administrative penalty. In addition, the competent authority
has to comply with the procedural norms. There are some typical
violations: violation of the right to legal defense; making a judgement
based on unreliable or inadmissible evidences; absence of grounding part
of the judgement or contradiction of the grounding part to the judgement
itself; absence of the proof of either guilt or innocence of the person in
question; insufficient grounds for imposing this particular form of an
administrative penalty, etc.
In this light, the decision on imposing an administrative penalty in
form of deportation under art. 23.55 p. 1 of the CAO dd. 23.09.2019
delivered by the DIA of Zavodskoy district in Minsk in regard of a citizen
of the Russian Federation was changed from deportation to a fine. The
aforementioned decision was changed due to the intractable violations of
the procedural norms that were present in the materials of the case: after
the judgement was delivered, a representative of the competent authority
working on the case was demanding from the foreign citizen to sign the
documents on completion of the case. The foreigner refused.
Additionally, a ruling on deportation of a citizen of Georgia, which
was adopted by the Citizenship and Migration Department (thereinafter —
CMD) of Zavodskoy district in Minsk dd. 13.03.2018 and entered into
force under art. 23.55 p. 1 of the CAO, was revoked due to severe
violations of the PECAO provisions in the case: wrong passport data;
contradiction of the introductory, descriptive and resolutive parts of the
ruling in regard of the person’s surname; violation of the right to legal
defence by not providing an interpreter (the person was not able to write
a sentence told him by the police officer without grammatical and
interpretive errors).
In order to ensure implementation of the right to legal defense,
persons under proceedings have to be able to not only sign the procedural
document but also put in words concrete phrases that might influence on

59
the following judgements made by the representative of the competent
authority or by the court. For example, interpretation services are not
required; I know Russian, interpretation services are not required, at the
same time it is necessary to refuse to sign prepared templates suggested
by the officials gathering data on the case.
While considering the legitimacy and justification of the ruling on
deportation or expulsion grounding of the decision has to be examined.
According to the art. 65 of the Law to be subjected to the deportation or
expulsion, actions or inaction of the foreign citizen have to pose a
(possible) threat for the national security, public order, health or morals,
or rights and freedoms of citizens of the Republic of Belarus.
It is necessary to find out whether the foreign citizen was charged for
administrative or criminal offences on the territory of the Republic of
Belarus. If so, then a precise list of articles, under which the person was
prosecuted, has to be compiled. The list has to include also the timing of
the judgements, the facts of (not) filing appeals, enforcement of the
judgements and compliance with them.
The procedure of making the decision on expulsion and notifying the
interested persons has to be examined for the fact of compliance with the
procedure stipulated in the Regulation on expulsions. Additionally, other
conditions have to be complied with: provision of all the requisites of the
ruling on expulsion (time, place of issue, correctness of the person’s data,
signature by the person who delivered the decision, grounding of the
decision, etc.), presence of an interpreter in necessary cases, also his
signature of the ruling.
Similarly, the ruling made under the art. 9.3 of CAO on expulsion of
the Russian citizen was revoked on 19.08.2019 as a result of appealing
against it to the court of Cherven’s district of Minsk region. The revocation
was based on the fact that actions of the person did not concern the
national security or the public interest. The court has reiterated in the
decision that considering characteristics of a particular person and her
material situation, a manifestly not high degree of a threat to the general
public caused by the personal relationship can not be considered sufficient
ground for expulsion.
As follows from the aforementioned court practice, making decision
on revocation of the ruling on expulsion or deportation requires also

60
taking into account personal characteristics of the foreigner in question.
Such characteristics may include:
•• continuance of the permanent residence in the Republic of Belarus;
•• graduation from institutions of pre-school, primary, secondary,
specialized secondary or higher education in the Republic of
Belarus;
•• having a stable and permanent employment in the Republic of
Belarus;
•• having a real estate property in the Republic of Belarus;
•• being a breadwinner for family members (e.g. underage children,
citizens of Belarus; adult children, who is getting the first higher
education on the full-time program and does not have financial
sources for an independent existence; not working spouse, who is
taking a parental leave, etc.);
•• positive recommendations from the working places, educational
institutions, awards in the Republic of Belarus, etc.;
•• being indebted to the republican and/or local budgets of the
Republic of Belarus;
•• having a real estate property, permanent job, and family members
outside the Republic of Belarus, etc.
We should separately dwell on the recent practice of courts reviewing
complaints about a ruling on expulsion and imposing an administrative
penalty in the form of deportation, including when determining the term
for a ban on entry into the Republic of Belarus, according to which the
courts pay attention to the violation of the right to family reunification
under Part 1 of Art. 55 of the Law, in case of expulsion or deportation.
The reflection of the provisions enshrined in Art. 55 of the Law and their
implementation in practice comes from international legal documents, in
particular: the Convention on the Rights of the Child (Concluded in New
York on November 20, 1989) (as amended on December 21, 1995).
An example of implementing the right to family reunification might
serve a case of the Russian citizen, who was charged with expulsion by
ruling of the CMD of the Frunzenskiy district in Minsk dd. 03.05.2019.
In this case the person was charged with an administrative penalty under
the art. 18.16 p. 1 of the CAO. An appeal filed against the penalty to the
Main Internal Affairs Directorate of the Frunzenskiy district in Minsk was

61
rejected. Nevertheless, the court the Frunzenskiy district in Minsk have
decided differently. The ruling of the CMD was revoked because the
person’s characteristics and her marital status  — she has got a husband
and a child, who are citizens of the Republic of Belarus  — present a
sufficient ground for choosing another form of penalty.
At the same time, there are cases of people being expelled from the
Republic of Belarus for a specified period of time regardless any evidences
and reasoning.
Nevertheless, there is a way for a foreign citizen to enter the Republic
of Belarus earlier than the prohibition period is over. In order to do so the
person has to file a well-grounded application for shortening the prescribed
period of prohibition on the entry to the CMD of the Ministry of Internal
Affairs of the Republic of Belarus.
During consideration of such applications, the grounds for entering
the State, reasons of the imposed prohibition, characteristics of the person,
his/her marital and financial statuses are being examined. Every decision
on such applications is being made by the CMD official based on the
personal perception. The practice of considering these applications
highlights that handing them directly to the CMD official during the
individual appointment via the applicant’s representative (family member,
lawyer, etc.) is more efficient for the positive outcome.
In the light, a case of Russian citizen can be brought as an example.
On 31 August 2016, the Russian citizen was expelled from the territory
of the Republic of Belarus for the period of 10 years by ruling of the
CMD of the Tsentralniy district in Minsk. The reason for making such
decision was an administrative offence made within the territory of the
Republic of Belarus and falling under provisions of the art. 18.23 p. 1 of
the CAO. The ruling entered into force on 30 March 2017. While being
outside the Republic of Belarus, the person has applied for the shortening
of the prohibition period to the CMD chief officer through the individual
appointment of his representative, mother. The application reflected the
reasons of disagreement with the 10 years prohibition on entry into the
Republic of Belarus and personal characteristics of the applicant. Among
other things there was mentioned the longevity of his residence in
Belarus, which lasted since 2001; the fact that throughout this time he
had permanent employment and was characterized in an exceptionally
positive way; and he also was registered as an individual entrepreneur in

62
the local administrative entity. Additionally, the applicant had a share in
the right to ownership of a real estate property on the territory of the
Republic of Belarus; all his family members were living in Belarus; and
he was never prosecuted under the articles 9.1, 17.1, 17.3, 18.16 of the
CAO. As a result of this application the prohibition period was reduced
to 1 year only.
To sum up, expulsion and deportation are two alternatives of each
other. Both can be imposed on a foreign citizen or a stateless person and
can be revoked based on personal characteristics of the individual and
other extenuating circumstances of the case.
Every concrete case requires a thorough examination of not just
legality of the decision on imposing expulsion or deportation on a person
but an analysis of his personal characteristics, marital and financial status,
etc. Also, as practice shows, it is necessary to analyze whether the adopted
decision (on expulsion, deportation) violates the rights and freedoms of
other citizens of the Republic of Belarus.

63
Appeals to the Human Constanta free legal office
for the protection of the human rights of foreign
citizens and stateless persons: trends and challenges

Enira Bronitskaya, Alena Chekhovich

In 2017, Human Constanta opened a free legal office on the rights of


foreign citizens and stateless persons. We consult foreigners free of charge
in difficult situations related to the law. This report is an overview of the
situation and a description of the legislative and enforcement problems
that we encountered in 2019.

In the first 10 months of 2019, our free legal office for foreign citizens
and stateless persons consulted by phone, email as well as in our office
in Minsk 354 foreigners and stateless persons from no less than
60 countries on the widest range of issues related to their arrival and stay
in Belarus.

64
In 2018, for comparison, the free legal office consulted by phone,
e-mail, and also in our office in Minsk 134 foreigners and stateless
persons from at least 39 countries on a wide range of issues related to
their stay in Belarus.

More than 20 % of the foreigners are citizens of Russia and Ukraine.
Despite the absence of a language barrier and the similarity of the
legislative framework, the applicants have many problems connected with
the administrative procedures in Belarus, as well as more complex
problems during their stay in Belarus.

Topics of appeals
We have advised foreigners on many topics:
••
Visa issues: obtaining visas to the Republic of Belarus (entry and
exit), visa extension, visa-free regime.
••
Issuing invitations for the arrival of foreigners in Belarus.
••
Citizenship issues: acquisition/restoration/cancellation.
••
Marriage to foreigners in Belarus.

65
••
Employment issues, including obtaining permission to employ
foreigners; opening a business.
••
The procedure for receiving pensions.
••
Health care issues: medical insurance for foreigners, receiving
emergency and planned medical care.
••
Appeals against deportation, expulsion, extradition, reduction of
the period of stay or inclusion in the List of persons whose entry
into the Republic of Belarus is prohibited or undesirable.
••
Acceptance or refusal of protection in Belarus: refugee status,
additional protection.
••
Registration at the place of residence, renewal of registration,
change of address.
••
Registration and extension of the permanent residence permit,
temporary residence permit: what are the grounds, procedure,
grounds for cancellation, refusal to apply, etc.
••
Other issues (questions of inheritance, use of a right-hand drive
car, customs clearance of things, getting an education, issuing
a decree, etc.).

66
In 2018, the percentage distribution by topics was as follows.

Main problems for foreign citizens


and stateless persons in Belarus
General administrative procedures
A special invitation must be issued at the Belarusian authorities for a
foreigner to receive a guest visa to Belarus. In practice, we have identified
the problem of refusals by OGiM employees to issue invitations for
citizens of states that are included in the list of states unsuccessful in
terms of migration. The existence of such a list is not established by the
law, the criteria for assigning certain countries to it are not clear, and it
is not public. Thus, situations of abuse on the part of employees of
migration services may arise on the ground. For example, we were
approached by a citizen of Belarus who wants to issue an invitation for
her friend from Algeria. In OGiM they directly told her that it is better
not to apply for an invitation, as there is a high probability of refusal. The
reasons for the refusal in OGiM were not announced.
Already after arriving in Belarus, foreigners generally encounter
difficulties in obtaining temporary registration, in applying for a permit
for temporary or permanent residence.

67
For example, a problem was revealed that, in practice, a foreigner
who has arrived in Belarus on a visa-free regime cannot apply for
temporary residence permit. So, several foreigners came to us who came
under a visa-free regime, which did not prevent them from getting married
in the Belarusian departments of the registry office. However, in the
future, employees of the citizenship and migration departments require
them to have an entry visa to accept documents for a temporary residence
permit or residence permit on the basis of the marriage.
Other problems arise during the preparation of documents and the
going through various administrative procedures, for example, with
certificates from other states. So, two citizens of Uzbekistan came to the
office, their certificate of marital status was not accepted in the Belarusian
registry office, as they did not have an apostille. At the same time,
Belarus and Uzbekistan have an agreement on mutual legal assistance,
which allows the usage of official documents without additional
legalization.

Expulsion and deportation


Article 67 of the Law of the Republic of Belarus “On the Legal
Status of Foreign Citizens and Stateless Persons in the Republic of
Belarus” is applied for the expulsion of foreigners. The article provides
that “when making a decision on forced expulsion, the internal affairs
body or state security body, with the sanction of the prosecutor, take
measures to detain a foreigner for the period required for expulsion. A
foreigner detained in order to enforce a decision on expulsion shall be
placed in a temporary detention center for aliens or in the isolation
center for offenders, and in the absence thereof, in a temporary detention
center for the period necessary for his expulsion.” Decree of the Council
of Ministers of the Republic of Belarus No. 146 of February 3, 2006
“On the approval of the Regulation on the procedure for the expulsion
of foreign citizens and stateless persons from the Republic of Belarus
and the invalidation of certain decisions of the Council of Ministers of
the Republic of Belarus on the deportation of such persons” duplicates
the provisions of the Law and also establishes that a foreigner is detained
in order to ensure his expulsion for the period necessary for its
implementation.

68
Unlike the deportation procedure, the forced expulsion procedure is
not a part of the administrative process. Foreigners who are forcibly
expelled do not have the procedural rights provided for by the PIKoAP.
The procedure for appealing against a decision to expel an alien, as
provided for in the law, does not allow foreigners to exercise their right
to appeal. The decision to expel is suspended only after the filing of a
complaint, which can be submitted within 1 month from the date of the
decision. However, in practice there are situations when during this month
given for appeal, a foreigner can already be expelled from Belarus. Thus,
a complaint against a decision to expel is already becoming inappropriate.
A number of other problems with expulsion and deportation were also
identified. In particular, there are cases when a foreigner is not even given
the opportunity to exercise his right to appeal against the expulsion and
to file a petition for defense in Belarus, or such complaints and petitions
are simply ignored. So, in May 2019, Ismail Nalgiev, a citizen of the
Russian Federation, was detained at the Minsk airport. First, he spent
3 hours at the airport, after that he was taken under guard to the building
of the administration of the Oktyabrsky district of Minsk. On the same
day, it was decided to expel Nalgiev from Belarus forcibly. He was only
informed of the expulsion order on May 10, and on the same day he was
forcibly sent to Russia. Nalgiev’s lawyer managed to file a complaint on
his behalf against the expulsion order, which was registered. However, the
expulsion in violation of the legislation of the Republic of Belarus was
not suspended.
In the case of Nalgiev in Russia, he was threatened with arbitrary
arrest and torture, which is already an independent basis for not carrying
out the expulsion. Along with this, we faced cases when foreigners are
expelled from Belarus to a country of citizenship, where they are not in
danger, but they do not have any strong connection with these countries.
In December 2018 and January 2019, two foreigners permanently residing
in Belarus committed suicide due to the threat of expulsion from Belarus.
Such decisions were taken by the Belarusian authorities on the basis of
minor administrative offenses committed by foreigners. Moreover, it was
not taken into account that expulsion is an extreme measure when there
is a real threat to public safety, and also these foreigners had a strong
connection with Belarus and were not able to reside in countries of
citizenship. Thus, we identified the problem of the absence in Belarus

69
legislation of detailed grounds for expulsion and deportation, as well as
extenuating circumstances when making such decisions, for example, the
period of residence in Belarus, the presence of a family  — citizens of
Belarus, protection of childrenʼs rights, etc.

Foreign citizens in closed institutions


During this year, we periodically got information about foreigners and
stateless persons detained in Belarus. We made inquiries to the embassies
of the states of citizenship of the detainees, the Belarusian penitentiary
bodies and representative offices of international organizations in order to
obtain information about the status of the detainees.
According to our observations, detained or already convicted
foreigners face a number of problems.
Foreign citizens and stateless persons are often held for several months
in temporary detention facilities. They are awaiting identification and
deportation or expulsion. So, only in June 2019 the story of Mehrdad
Jamshidiyan, an Iranian citizen, who had been detained several times by
the Belarusian authorities since 2013 with the aim of expelling him to Iran,
where he was threatened with torture and the death penalty, ended. On
June 14, 2018, Mehrdad was once again placed in a temporary detention
center due to the lack of a valid Iranian passport, where he spent almost
11 months. It is important to note that information about Mehrdad is
contained in many databases, he also repeatedly confirmed his identity in
the process of passing through various administrative procedures in
Belarus. However, in Belarus, the period of imprisonment for foreigners
detained for identification, deportation and expulsion is not limited by law.
The detention is not a subject to periodic review and judicial review, which
often leads to long-term imprisonment of people who are not even charged
with anything. In addition, temporary detention facilities are not designed
for long-term stay. They lack the ability to communicate with relatives and
the conditions of detention are unfavorable for life and health. During the
last detention, Mehrdad suffered a heart attack, after which he was not
provided with proper medical care in the facility. The low level of medical
care or its complete absence for detained foreign citizens and stateless
persons, as well as conditions of detention incompatible with the principle
of humane treatment, are a systemic problem.

70
Access to legal assistance
Another important problem, that detained foreign citizens may face,
is access to legal assistance. When foreigners are detained and put in
custody in Belarus, they may be ordered to be deported or expelled
forcibly.
Deportation is provided for in the Code of Administrative Offenses.
Moreover, as part of the administrative process, a defender is not provided
by the state. Article 2.8 of the PIKoAP stipulates that “an individual in
respect of whom an administrative process is ongoing has the right to
protection. He can exercise this right both personally and with the help
of a defender.” Article 4.5 of the PIKoAP provides that the powers of a
lawyer are confirmed by a lawyerʼs certificate and a power of attorney
drawn up in simple written form, or a warrant. At the same time, in
accordance with paragraph 4 of the Decree of the Ministry of Justice of
the Republic of Belarus dated 03.02.2012 No. 37 “On approval of the
Instructions on the issuance, recording and storage of warrants”, the
grounds for issuing a warrant to a lawyer are a contract for legal assistance
signed between a lawyer or law office and a client. It turns out that a
foreigner detained as part of an administrative process must call a lawyer
in a place of detention in order to conclude a contract for the provision
of legal assistance or for the issuance of a power of attorney. Only then
a lawyer can protect the detainee. At the same time, without an issued
warrant, a lawyer will not be allowed into the place of administrative
detention.
In practice, we face situations where detained foreigners who do not
speak Russian or Belarusian, as well as who do not have contacts in
Belarus, cannot exercise their right to defense because of the complexity
of the procedure for access to lawyers. In fact, they are denied access to
legal assistance.
In connection with this problem, we turned to the Belarus National
Bar Association with a proposal to consider the issue of access to legal
assistance for foreigners detained for an administrative offense or
undergoing compulsory deportation/expulsion from Belarus; and also
invite the authorized bodies to amend the current legislation regarding the
establishment of guarantees of access to legal assistance for such
foreigners.

71
The application of the principle of proportionality
in the process of making a decision on expulsion
on the example of the Republic of Belarus

Ann Alymova

This article shows the problem of the diverse practice of applying the
principle of proportionality by the Republic of Belarus in the process of
making a decision on expulsion. This article analyzes examples of
decisions made on expulsion in the interests of public order and the
annulment of such decisions, explores international standards for applying
the principle of proportionality in this matter, schematically demonstrates
some negative consequences which may entail disproportionate expulsion
for expelled individuals, their families and the country. The essay also
identified and substantiated the necessity to amend the national legislation
of Belarus in this area.

It is known that people leave the state of their origin in search of a


better life: decent work and wages, an improved level of education, and
so on, but, first of all, most of them seek to find a state where they can
find peace. Can foreigners fully feel peace and security in a state where
they can be expelled for minor administrative offenses, despite the degree
of their integration in the society of that state? Despite, for example, how
many years they have lived in the territory of a given state, whether they
have a family, etc. The answer is obvious. However, is the legislation of
the Republic of Belarus regulating the issue of the expulsion procedure
comprehensive enough?
A foreigner may be expelled from the Republic of Belarus in the
interests of national security of the Republic of Belarus, public order,
protection of morality, public health, rights and freedoms of citizens of
the Republic of Belarus and other persons, as well as after being released
from a detention or a correctional facility if a person cannot be subjected
to deportation [1]. Expulsion is an extreme measure against an alien and

72
it can be compared with a criminal punishment. In view of this and the
fact that the expulsion entails many negative consequences, when deciding
on its implementation, first of all, it is necessary to conduct a comprehensive
analysis of the situation and life of the expellee. Periodically, such analysis
is not carried out in Belarus, which often leads to a violation of a person’s
right to private and family life.
As an example the case of a citizen of the Russian Federation can be
named. This citizen B. had lived in the Republic of Belarus with his
mother (pensioner) and brother with disability for 17 years. In 2018, a
decision was made to expel him “in the interests of public order” for two
offenses committed in one year [2]. Another case occurred with Russian
citizen V. He had lived in Belarus for 14 years, where he raised six
children with his wife. In 2018, a decision was made to expel him also
because of an “interest of public order” [3]. 
However, the practice of Belarusian courts varies. There are also
known cases when factors of a person’s life were taken into account and
the decision to expel was reversed. For example, Russian citizen K., who
lived in Belarus with her husband and children, was threatened with
expulsion in 2018. The decision to expel her was reversed. [4]. In 2019,
the decision on the expulsion of a citizen of Ukraine P., who lived in
Belarus with his wife and three children, was also reversed [5].
All of the above cases are united by the following:
•• all of these individuals were threatened with expulsion “in the
interests of public order” for several minor administrative offenses;
•• all of them lived for many years on the territory of the Republic of
Belarus;
•• all of them had family members on the territory of the Republic of
Belarus.
The problem is that Belarusian legislation does not provide a clear
definition of the term “interests of public order” and does not explain
which administrative offenses constitute a threat to such interests and in
which cases these offenses are sufficient to apply such an extreme measure
as the expulsion of a foreigner from the territory of the Republic of
Belarus. Moreover, the legislation does not directly stipulate the need to
assess the important circumstances of a foreigner’s life before deciding
on expulsion; accordingly, state bodies often make decisions contrary to
the principle of proportionality.

73
Certainly, we should not forget about the margin of appreciation1,
however it is not absolute and the method of restricting human rights
chosen by the state should be really necessary and proportionate to the
legitimate goals. In 2009, this was even noted by the Constitutional Court
of the Republic of Belarus in his message to the President: “... taking into
account the principle of proportionality, legal restrictions should ensure a
proper balance of the interests of society and the state” [6].  
For a clearer understanding of the application of the principle of
proportionality in the process of making a decision on expulsion, it is
necessary to analyze international practice on this issue.  
I would like to note the case Madafferi v Australia, examined by the
UN Human Rights Committee (hereinafter — the HRC). In this case, the
HRC concluded that expulsion would be recognized as a violation of
article 17 of the Covenant on Civil and Political Rights in cases where it
would lead to significant changes in long-established family life. The
Committee noted that in assessing the validity of expulsion, it is necessary
to consider, on the one hand, justification in the light of the reasons for
expulsion and, on the other hand, in the light of the difficulties that other
family members will face as a result of expulsion [7].
As noted by Vasilevich G., Doctor of Law and former President of
the Constitutional Court of the Republic of Belarus, in his book “The
Constitution, the individual, the state,” the Belarusian Constitutional
Court actively uses the decisions of the European Court of Human Rights
(hereinafter  — the ECHR) to form its positions. In view of this, I think
it is appropriate to further consider the practice of the ECHR within the
framework of the question of the application of the principle of
proportionality in the process of making a decision on expulsion [8].
In Darren Omoregie and others v. Norway case the ECHR noted that
deciding on expulsion, the State should take into account the following
factors: the extent of the ties in the State, his family life, whether there
are insurmountable obstacles in the way of the family living in the country
of origin of one or more of them and the existence of violation of migration
legislation, as well as whether family life was created when the persons
knew that the immigration status of one of them is not defined [9].
Expulsion in itself is a difficult process, but especially difficult
consequences are faced by those people in respect to whom the decision

1 The right of states to choose how they will fulfill their obligations.

74
to expel was made clearly disproportionate to its legitimate goals and
without taking into account their personal situation.
Below is a scheme that illustrates the approximate negative
consequences that a person may face in respect of whom the expulsion
decision was made without the application of the principle of proportionality
(see annex 1).

Expulsion without the application


of the principle of proportionality

With a family Without a family

Family members Family members


will relocate will remain in the
with the expelled Republic of Belarus stress;

 loss of connections;
 loss of job;
 stress;  stress;  difficult financial
 interrupted educational  discontinued communication situation due to loss
process; with family members; of employment
 loss of ties, jobs;  loss of communications and
 difficult financial situation workplace of the expelled;
due to costs and job loss  difficult financial situation due
to job loss;
 difficult financial situation due
to the lack of one breadwinner

Annex 1. Examples of negative consequences that a person may face


in respect of whom the expulsion decision was made without
the application of the principle of proportionality

In accordance with the scheme, negative consequences will affect


both the person who is being expelled and his family members, if any. It
should be noted that article 1 of the Code of the Republic of Belarus on
marriage and the family establishes that one of the goals of the Belarusian
legislation is “to strengthen the family as a natural and fundamental unit
of society on the principles of universal morality, to prevent the weakening
and destruction of family ties” [10]. Doesnʼt expulsion without regard to
a personʼs marital status contradict this provision?
Moreover, it is obvious that the negative consequences of expulsion
are not limited to those expelled and members of his family, the state itself

75
will also receive a negative effect to a certain extent. On the one hand, the
state “will get rid of a source that threatens public order”, and on the other
hand it will lose an employee and a taxpayer (or several if the whole
family leaves the territory), and also worsen its reputation in the eyes of
citizens, foreigners and, in some cases, international community (annex 2).

Annex 2. Wrong priorities that state authorities set for expulsion

On the basis of the annexes and all the above, it can be concluded
that the consequences of expulsion, which was decided without the
application of the principle of proportionality, are unfavorable and long-
lasting. The application of the principle of proportionality, including on
the basis of criteria established by international practice, is essential in
order to better respect for human rights when deciding on expulsion.
It is also necessary to legislatively determine the meaning of the term
“interests of public order”, which will be necessary not only for state
bodies in making decisions, but also for foreigners to better understand
their rights and obligations in the Republic of Belarus.
As Immanuel Kant wrote in his treatise “Perpetual Peace:
A Philosophical Sketch”: “Every stranger has a right not to be treated as

76
an enemy when he arrives in the land of another” [11] and in my opinion,
it is extremely advisable to explain to the state bodies which take the
decision on expulsion the principle of proportionality and international
standards in this area and, moreover, to oblige the fulfillment of this
principle in order to humanize the migration policy of our state.
Continuous improvement of legislation in this area will strengthen
the consolidation of society and raise the profile of the state in the
international arena.

Sources
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