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CONCEPT OF ILLEGAL MIGRATION AND ITS CRIMINAL-LEGAL
SIGNIFICANCE
Baratova Dilnoza
Senior investigator of the Interrogation department under the Office of
coordination of the activities of the internal affairs bodies of Mirzo Ulugbek
district, Independent researcher of Academy of the Ministry of Internal Affairs of
the Republic of Uzbekistan
https://doi.org/10.5281/zenodo.13374951
ANNOTATION
In the article, the essence of illegal migration is revealed from a criminal-
legal point of view. All signs and elements belonging to the term are summarized
within a single concept. The definitions given by several scientists to the concept
of illegal migration have been studied. The terms “illegal migration”, “unlawful
migration” and “criminal migration” are different from each other. From the above
definitions of illegal migration, there are several ways to become an illegal
migrant. All opinions were analyzed and a proposed definition of illegal migration
was developed.
Key words:
illegal migration, unlawful migration, criminal migration, socio-
economic, political, legal and national-demographic factors, foreign citizens,
stateless persons, illegal migrant.
It is known that, as each problem has its own characteristics, there are
certain aspects that reveal the essence of illegal migration, and it is important for
law enforcement officers to understand the issues related to illegal migration.
Because, from the point of view of Criminal law, determining the legal content of
the concept, first of all, implies the generalization of all signs and elements related
to this phrase within a single concept. This makes it possible to distinguish a
certain concept from other phenomena and categories that are close and similar
to it [1].
Thus, today in the legal literature there is no consensus on the concept of
illegal migration, as well as terminological inconsistency regarding the analyzed
term. In particular, one group of authors uses the term “illegal migration” to
explain the issue under analysis, others call it “unlawful migration”, and the third
group of authors uses the term “criminal migration”.
In this matter, the most frequently used term by the authors is “illegal
migration”. In particular, A.N. Shkilev, who has studied this problem, defines the
concept of illegal migration as follows: “Illegal migration is the territorial
movement of the population in physical space, under the influence of socio-
economic, political, legal and national-demographic factors, in violation of the
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current rules of international law and the requirements of the national legislation”
[17]. In addition, E.Kh.Kakhbulaeva writes that “illegal migration is a rapidly
developing socially dangerous phenomenon that violates the current
international law and national legislation and threatens national security and the
interests of the entire international community” [8]. However, in our opinion, the
content of illegal migration is not fully revealed in these definitions, for instance,
they do not specify the issues related to the subjects of illegal migration and do
not reveal the aspects related to its objective signs.
Continuing the reasoning of scientists, G.E.Dudin and S.V.Kalinins note the
following: “... Illegal migration in the general sense means any movement in the
territory of the state in violation of the legal requirements that determine the
procedure for entering the country and being in its territory” [5]. However, in our
opinion, this definition is given in a rather narrow sense, in which, along with the
shortcomings mentioned above, the content of illegal migration is limited to
taking into account only the cross-border features of movement.
Along with the above scientists A.Fedorako states as follows “... illegal
migration is the activity that occurs as a result of the movement of foreign citizens
and stateless persons in violation of the established order of entry, transit, stay
and exit on the territory of a specific country” [16]. In addition, T.B.Smashnikova
rightly interprets the concept of “illegal migration” in her own way, that is, she
points: “...illegal migration is an act of migration on the territory of the state in
order to change the temporary place of residence or place of residence of the
population is voluntary or forced migration across state borders in violation of the
requirements of the law” [13].
In addition, A.V.Sukharnikova, who studied this problem, notes that a
person must have the following characteristics to be considered an illegal migrant:
1) crossing the border of a foreign country bypassing the designated control
points; 2) living on the territory of the state in violation of the rules of the current
national migration legislation; 3) it is necessary to understand the persons who
entered the country by illegal means or obtained residence permit documents”
[14]. However, in our opinion, the definitions disagnated by A.Fedorako,
T.B.Smashnikova and A.V.Sukharnikova in relation to the issue under discussion
also have some shortcomings and do not fully reveal the meaning of illegal
migration, for instance, they limit the migration from one country to another by
violating national law of receiving country, they do not take into account the types
of migration and their specific characteristics, in addition, the authors state only
illegal crossing of the border of the receiving country is the basis for illegal
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migration. In our opinion, the content of illegal migration should also include
situations related to the violation of the requirements of international law, and its
types and content should also be taken into account, and of course, as one of the
reasons for illegal migration, it should not be connected only with the crossing of
the state border, the reason for which is the migrant’s entry into the country. On
the other hand, legally crossing the orders of the reciving country (for instance,
entering the country with a tourist visa) can be considered as illegal migration,
but the subsequent stay in the country or the activities carried out by the migrant
may be illegal (expired visa, performing labor activities in violation of migration
legislation, etc.).
It can be seen from the above-mentioned points that the issue has not been
approached in depth. Because, in the legal literature, there is a completely
different approach to this issue, there are also separate scientific studies, in
particular, in this regard, M.N.Akhmedov states that illegal migration by citizens
of this country, foreign citizens or stateless persons in the national legislation of
the host country is a violation of the established rules on entry, exit, stay and
transit [3]. Meantime, according to A.M. Iskhakov, illegal migration means the
activity that a foreign citizen or a stateless person moves within the country in
accordance with national legislation or international law rules, as well as
regardless of the purpose and duration of arrival, to carry out labor activities,
enter, leave, stay in the country, and cross the country’s territory in violation of
the established transit procedure [7].
A.N. Jerebtsov understands illegal migration as “...the movement of
individuals in violation of the established legal regimes and legal procedures for
migration, for instance violation of the established order of migration rules”
(in
case of violation of internal (socio-economic) movement of migration rules – citizens
of the country and in case of violation of established migration rules related to
movement from the territory of a foreign state to the territory of the country or from
the territory of the country to the territory of a foreign state –foreign citizens
(stateless persons))
[6].
E.S.Krasinets, E.S.Kubishin, E.V.Tyuryukanova define illegal migration as
follows: concept of “illegal migrant” includes those who illegally entered the state
territory (crossed the border from unmarked places with unauthentic or forged
documents or without any documents), includes persons who are in the territory
of the country illegally (who have not properly issued documents for their stay in
the country) and persons engaged in illegal economic activities [10]. Here we
should nopte that we do not support the view of illegal migrants as the main sign
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that they are engaged in “illegal economic activity” proposed by these authors.
Because, in our opinion, it would be wrong to include the implementation of any
economic activity by foreign citizens and stateless persons (migrants) in the
content of the studied definition. These crimes are not directly related to
migration law, so they should not be taken into account when determining the
legal or illegal status of a migrant. In our opinion, the procedure for conducting
business or other economic (commercial) activities depends not on the regime of
stay in the country, but on the rules of stay in the country. We believe that the
definition of illegal migration should include not only foreign citizens or stateless
persons, but also all persons participating in these processes.
In addition, according to N.R.Asmandiyarova, illegal migration means the
illegal entry of foreign citizens or stateless persons into the territory of the
country or the illegal exit of foreign citizens, stateless persons and citizens of the
country from this country, as well as foreign citizens or illegal stay (residence) of
stateless persons in the territory of the country or illegal transit of foreign citizens
or stateless persons through the territory of the country [2].
Based on the above, it can be said that most authors believe that illegal
migration can occur only in cases of crossing the state border. However, the views
of N.R. Asmandiyarova, A.N. Jerebtsova and M.N. Akhmedov deny this opinion,
according to their notes, an illegal migrant can also be in the case of internal
migration. In this case, a citizen of the country violated the internal movement of
migration rules can be good example. This approach is also supported by
A.N.Shkilev, that is, he considers the possibility of illegal migration to exist not only
when crossing state borders, but also in any territorial movement of the
population in physical space. Such views are, of course, more or less noteworthy,
and support for these views is possible.
However, in the explanatory dictionary of the Uzbek language, the
expression “migration” [lat. migratio – migration (of the population) from one
place to another] means relocation of the population from one place to another
within the country or from one country to another country” [15]. In particular,
internal migration, like external migration, can be carried out in violation of the
law. An example of this is the offense specified in Article 223 of the Code of
Administrative Responsibility of the Republic of Uzbekistan (violation of the rules
of the Passport system). Thus, this rule imposes punishment for living of a citizen
of the Republic of Uzbekistan without a passport or identification ID card or with
an invalid passport or identification ID card, without registration of permanent
residence or temporary residence, as well as a foreign citizen permanently
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residing in the territory of the Republic of Uzbekistan and a stateless person living
with an ID card (residence certificate in the Republic of Uzbekistan) without
registration of permanent residence or temporary residence will result in a fine
of two to three times the base calculation amount. So, logically, not only external
but also internal migration can be illegal if the violation of the legislation in a
certain area is caused by giving this or that phrase the meaning of “illegal”.
From the point of view of the problem we are considering, it is important to
pay attention to another aspect, because, as we mentioned above, some authors
applied the term “illegal” to name the problem under consideration. For instance,
L.L.Rybakovsky uses the term “illegal migration” in his works. In his opinion, “...
illegal migrants are those who illegally crossed the state border or crossed the
border legally, but later violated the procedure established by the law regarding
their stay in the country (for instance, not registering their place of residence or
migration register, or the period of stay in the country has expired and etc.) [12].
Meantime, M.A.Magerramov stated that illegal migration is defined as
violation of the rules of entry, stay, exit and transit by a foreign citizen or stateless
person from the territory of a foreign state [11].
According to V.A.Volokh, illegal immigration means the entry and stay of a
foreign citizen in this country in violation of the requirements of the current
legislation of the country, which determines the procedure for entering, staying,
and transiting the country, and arbitrary detention of the foreign citizen during
his stay on the territory of the country of entry. Here, it is necessary to understand
that this changes its legal status»[4].
As we have seen, from the definitions of illegal migration given by
L.L.Rybakovsky, M.A.Magerramov and V.A.Volokh, it is possible to say that they
have the same definition of illegal migration and unlawful migration.
As we have already mentioned, another term used for illegal migrants is
“foreign migration”. According to P.N.Kobets, criminal migration is a real, practical,
and plausible threat to the purpose of human learning and the development of
criminal technologies. In addition, T.B.Smashnikova notes “...criminal migration is
the voluntary or forced crossing of the state or its administrative borders by the
population with the purpose of knowingly and illegally entering the territory of
the receiving state in order to carry out criminal activities prohibited by the rules
of criminal law and within the scope of its influence.
Meantime, these definitions are noteworthy in that the authors show that
criminal migration is manifested not only in the crossing of state borders, but also
in any territorial movement of the population. Based on this, it can be said that
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criminal migration can be external (crossing state borders) and internal (without
crossing state borders). However, in our opinion, criminal migration is a separate
phenomenon that requires a separate scientific study, since its main purpose is to
commit a crime. Criminal migration is a very dangerous type of migration, which
does not belong to the type of illegal migration and cannot be included in its
concept, because criminal migration is a more dangerous social phenomenon than
illegal migration.
In short, from the above definition of illegal migration, it is possible to
distinguish several ways of becoming an illegal migrant: 1) crossing the state
border without the necessary documents (without a visa, passport, etc.); 2)
violation of the intended purpose of coming to the receiving country (entering the
country with a tourist visa, getting a job, etc.); 3) violation of the established
regime of stay in a certain place (for instance, failure to register for temporary
residence or migration, expiration of the specified period of stay in the territory
of the country (expired visa, expired permit for temporary residence in the
territory of the country, expired period of residence in the country); 4) in a certain
area movement; 5) subjects of illegal migration can be foreign citizens, stateless
persons and citizens of Uzbekistan who participated in the organization of this
process; 6) an integral element of illegal migration is the violation of the internal
legislation of the countries or international rules that regulate the sphere of entry
and exit, stay, transit, and employment.
Based on the above, we consider it appropriate to define illegal migration as
follows, i.e. illegal migration is the entry of foreign citizens or stateless persons
into the Republic of Uzbekistan in violation of the established procedure, living
with invalid documents, registration at the place of temporary stay, uncomplying
with the established procedure of moving or choosing a place of residence, not
leaving the country after the end of the stay, uncomplying with the rules of transit
through the territory of the Republic of Uzbekistan, violating the procedure for
attracting and using foreign labor in the country by authorized organizations and
employers, as well as the legislation on migration, as well as sending citizens of
the Republic of Uzbekistan abroad illegally or organizing employment abroad. It
is understandable, such activities are carried out by persons who do not have the
appropriate authority
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