The Right to Freedom of Movement and Choice of Residence
In compliance with generally accepted international legal principles and norms, the Constitution of Kazakhstan establishes that “Everyone who has a legal right to stay on the territory of the Republic of Kazakhstan shall have the right to freely move about its territory and freely choose a place of residence except in cases stipulated by law.” (Paragraph 1 Article 21)
Furthermore, in agreement with Article 16 of the Law of Kazakhstan “On the Legal Status of Foreign Citizens,” foreign citizens may freely move about the areas of Kazakhstan which are open to foreign citizens and choose a place of residence in compliance with the procedure established by the legislation of Kazakhstan.
International standards on freedom of movement are founded on the following basic principles:
- Freedom of movement inside the country is the assumed right of everyone who is legally in its territory, to freely move about its territory and choose a place of residence without the need to request particular permission from authorities. This right applies in equal measure to citizens of the country, foreign citizens, individuals without citizenship, refugees, and legal immigrants.
- The right to leave one’s country and the right to return to one’s country is a personal human right and should be guaranteed by law.
- Limitations of exit-entry or freedom of movement inside the country may be imposed only by law in the interests of guaranteeing national security, defense of public order, protecting health and morality, or protecting the rights and freedoms of other people. These limitations should correspond to other internationally acknowledged rights and freedoms, serve a clear goal, and be reasonable, necessary, and sufficient.
- In regard to refugees or individuals seeking asylum, the main principle is the principle of non-deportation, that is, the responsibility of the government not to deport and not to return them to the border of the country where their life or freedom is threatened with danger by reason of their race, religion, social affiliation, citizenship, or political convictions.
Current emigration legislation of Kazakhstan began to be formed after the collapse of the USSR. At the very beginning – the mid 90’s – the principle legislative acts in this area were passed. In December 1991, the Law of Kazakhstan “On Citizenship of the Republic of Kazakhstan” was passed, and in June of 1995 – the Presidential Decree of Kazakhstan “On the Legal Situation of Foreign Citizens in the Republic of Kazakhstan.” The foundation of emigration legislation is in the Constitution of Kazakhstan, ratified in August 1995, fixed in Article 21 as the right to freedom of movement and choice of place of residence, and in Paragraph 4 of Article 12 as the equality of rights and responsibilities of foreign citizens and stateless persons with citizens of Kazakhstan, “unless otherwise stipulated by the Constitution, laws, and international treaties.” In December 1997, the Law of Kazakhstan “On the Emigration of the Population” was passed.
However, many migratory issues remain untouched by current legislation. Issues of entry, stay in Kazakhstan, exit from Kazakhstan, formation of documents for the right to temporary and permanent residence in the State, and many others are regulated by Government decrees, orders of the Ministry of the Interior, or instructions from various ministries and departments. Among them are the regulation of the Government of Kazakhstan of January 28, 2000 “Individual Issues Regarding the Legal Regulation of the Residence of Foreign Citizens in Kazakhstan,” the instructions “On the Procedure for Application of Regulations on Entry and Residence of Foreign Citizens in the Territory of Kazakhstan, and also their Exit from Kazakhstan,” the instructions “On the Issuance by Agencies of Interior Affairs Permission for Exit to a Permanent Residence Beyond the Borders of Kazakhstan,” and many others. An approximate estimate of the total quantity of bylaw documents regulating the area of migration exceeds 100. Some bylaws contain limitations to the rights and freedoms of foreigners on the territory of Kazakhstan, which is a violation of Article 39 of the Constitution of Kazakhstan, stating: “Rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population.”
Limitations to the right to freedom of movement about the territory of Kazakhstan remain in existence in Kazakhstan’s institution of obligatory registration of place of residence, descended from the Soviet passport system and registration procedure. It is important to note that issues of social security, the realization of voting rights, the right to leave Kazakhstan, and others are dependent on the institution of registration.
A selective analysis conducted by the Human Rights Commission of individual normative legislation shows their noncompliance with the norms of the Constitution, guaranteeing citizens freedom of person and movement.
For example, Paragraph 1 Article 76 of the Administrative Code of Kazakhstan establishes that, as a disciplinary measure, a minor may be assigned limitations on his spare time and special requirements of conduct.
Inasmuch as the Code does not stipulate by which institutions such measures may be assigned, today, essentially these measures may be assigned by, in addition to judges, any establishment considering matters of administrative violations. This does not comply with the requirements of Articles 16 and 21 of the Constitution of Kazakhstan.
Such noncompliance is found in the norms of Article 11 of the Law “On Associations of Internal Affairs of Kazakhstan” and Article 30 of the Law “On the Rights of Children in Kazakhstan,” according to which children may be placed in rehabilitation centers without their consent and without the permission of the court.
In connection with this, with the aim of the protection of constitutional rights of children, the Human Rights Commission before the Head of State recommends that the Government of Kazakhstan conduct an analysis of all legislation and supplement it with norms that any restriction of freedom of a minor or his freedom of movement take place only by the decision of the court.
In harmony with Paragraph 2 Article 21 of the Constitution of Kazakhstan: “Everyone shall have the right to leave the territory of the Republic. Citizens of the Republic shall have the right to freely return to the Republic.”
Institutions of the Procurator receive many appeals from foreign citizens regarding the violation of their rights by members of law-enforcement agencies.
An investigation conducted by institutions of the Procurator has established that law-enforcement officials, after considering a matter of an administrative violation and the pronouncement of a decision to impose an administrative penalty in the form of a fine, confiscate the foreigner’s national passport.
As a substantiation of the legality of their actions, law-enforcement officials refer to Sub Paragraph 5 Part 1 of Article 618 of the Code of Administrative Offenses of the Republic of Kazakhstan (further referred to as “the Code”), where it is determined that in the interests of guaranteeing the execution of an accepted decision in a matter, an official representative has the right, within the boundaries of his authority, to employ in his relations with the physical person a measure guaranteeing execution in a matter of administrative violation in the form of confiscation of documents and other items.
At the same time, they understand the regulation “guaranteeing the execution of an accepted decision in a matter” as the right of officials to hold a citizen’s passport, taken with administrative authority as security until full payment of the fine which they imposed.
Application of the given regulation by law-enforcement officials contradicts other requirements of the Code, including procedures defined for the execution of individual types of administrative penalties (Chapter 44 of the Code), and international standards.
Not having a passport with him, a foreigner cannot obtain tickets or freely exit the country, and is limited in his legal rights, which is a violation of Paragraph 2 Article 21 of the Constitution of Kazakhstan and Paragraph 2 Article 12 of the International Covenant on Civil and Political Rights, ratified by Kazakhstan in 2005.
A passport, for foreign citizens in the territory of Kazakhstan, is not only a document establishing identity and necessary for movement, staying in a hotel, and conducting banking operations including the payment of fines, but also for the realization of vitally important needs, for example, medical care.
Furthermore, the movement of a foreigner around the territory of Kazakhstan without a passport is a violation of Part 1 Article 394 of the Code, in connection with which, after the confiscating of his passport, he will be subject to administrative violations per the above-mentioned article.
In this manner, appointed individuals in law-enforcement agencies, having confiscated the passport of a foreign citizen, restrict their rights and freedoms guaranteed by international treaties and the Constitution.
On the basis of the above-stated, in the interests of preventing the improper application of regulations of administrative legislation and the violation of rights of physical persons, the Human Rights Commission and the Prosecutor General are introducing appropriate motions within the framework of the currently developing Administrative Procedure Code project.
An analysis shows that the quantity of immigrants arriving in the country is increasing yearly. Growth is also taking place in the number of individuals violating regulations on the residence of foreigners in Kazakhstan, in connection with which measures of administrative force are applied, including administrative expulsion from the territory of the State.
In connection with insufficient legislative regulation of the mechanism of deportation of foreigners, currently problems arise in the execution of court decisions for the administrative expulsion of the violator.
For example, by agencies of the Prosecutor only, during the course of a planned investigation of the application of legislation regulating the use of the labor of foreign citizens in Kazakhstan in the 3rd quarter of 2008, criminal prosecution was commenced in regards to 5 foreigners per Article 330-1 (failure to execute a court decision on expulsion) of the Criminal Code of Kazakhstan.
The procedure for the expulsion of foreigners is regulated by Article 731 of the Code of Administrative Offenses of the Republic of Kazakhstan (further referred to as “the Code”), where there is the provision that the execution of the decision for the administrative expulsion from Kazakhstan of foreigners and individuals without citizenship takes place by officially handing over foreigners and individuals without citizenship to the representative of the government of the foreign citizen, onto whose territory the person is expelled, or, by means of controlled independent exit of the expelled person from Kazakhstan. If the handing over of the expelled person to the representative of the foreign government is not provided for in an agreement between Kazakhstan and the foreign government, expulsion takes place in a place determined by border control agencies.
Currently, in connection with the absence of legislative regulation, the handing over of foreigners to the representative of the government of the foreign citizen, that is, to the embassy of the country of citizenship of the violator by emigration police does not take place.
Also, legislative acts of the State do not take into consideration the understanding of “controlled independent exit of the expelled person,” stated in Article 731 of the Code, and mechanisms of its execution (fulfillment).
Furthermore, Border Service agencies have not determined a location for the deportation of foreigners.
Consequently, the necessity arises to pass legislation regulating the mechanism and procedure of realization of Article 731 of the Code.
The condition of the governmental borders of Kazakhstan has considerable influence in the sphere of counteracting illegal emigration.
In this connection, improvement of legislation regulating activities at government border crossing points is necessary.
Up until now, there is no single list of all existing border crossing points in Kazakhstan with a description of the status of each of them (international, multilateral or two-sided, daytime or 24-hours, etc.). Earlier published legislation by the Cabinet of Ministers of Kazakhstan regarding border crossings have undergone many revisions and additions that partially contradict norms of other legislation.
For example, in Paragraph 1 of the Cabinet of Ministers of Kazakhstan Regulation of 30.10.1992 No. 906 “On Border Crossings in Kazakhstan,” the “Dostyk” border crossing (Almaty Region) is designated as an automobile crossing.
However, in the Government Regulation of the State of 26.08.2003 No. 870 “On Measures for Further Development of International Railroad Border Crossing Dostyk-Alashankoi, the Railroad Section Aktogai-Dostyk and the International Automobile Border Crossing Korgas in 2004-2005,” it is listed as the international railroad crossing “Dostyk-Alashankoi.”
Moreover, in Paragraph 4 of the “List of Railroad Border Crossings on the Governmental Border of Kazakhstan,” as approved by the Government Regulation of Kazakhstan of 03.07.2003 No. 648, “Dostyk” is designated as entirely a railroad border crossing.
In connection with the above statements, it is considered a necessity to develop legislation establishing a single list of border crossings in Kazakhstan.
Together with this, the steady growth of the stream of immigrants to the State observed in recent years also requires the improvement of systems of governmental immigration control.
Earlier, the Human Rights Commission in addressing the Government of Kazakhstan and key governmental agencies, has repeatedly put forward the proposal to examine the issue of designating a governmental agency responsible for the realization of governmental policies in the sphere of immigration.
Furthermore, in the current year this proposal has come under the framework of the work group for the improvement of immigrational legislation, created by a decree of the Prime Minister of Kazakhstan, but has not found support.
Today, despite a united goal and the objective of immigration policies, the system of immigrational control in Kazakhstan consists of several governmental agencies. At the same time, each agency has responsibility only for the fulfillment of its separate commission.
The result of such a state of affairs at the given moment is the absence of unified immigration policy, proper coordination between governmental agencies, efficiency, and a low level of control over migratory processes, which in the final analysis negatively reflects also on the effectiveness of governmental policies in the sphere under consideration.
Currently the task of realization of immigration policies lies with the Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Labor and Social Protection, Ministry of Justice, Ministry of Agriculture, the Border Service, the Committee for National Security, and also Akimats of regions and the cities of Astana and Almaty.
In some instances, the function of one governmental agency duplicates or supplements another, which leads to the situation that not one of the above-mentioned agencies has accurate statistics regarding the issues defined.
For example, “Work Visas” for foreign citizens are given exclusively by foreign institutions of the Ministry of Foreign Affairs (further referred to as “MFFA”), and their renewal is carried out by representative agencies of the Ministry of the Interior (further referred to as “the MININT”).
In turn, initial visas in the “Business” category may be issued by agencies of the MFFA as well as the MININT, and both agencies have the right to their renewal.
Questions regarding the formulation of documents for the receipt of citizenship of the State are considered by agencies of the MININT, and their documentation is the prerogative of the Ministry of Justice.
Also, according to the Law of Kazakhstan “On the Migration of the Population,” the central executive agency, handling internal coordination and direction in the sphere of migratory processes, is defined as the Committee for Migration of the Ministry of Labor and Social Protection.
However, the Committee, in connection with the absence of corresponding legislative leverage, is not properly fulfilling its functions, limiting its actions to only the filling of its quota with the immigration of the Oralman.
The designation of a single agency responsible for coordination and development of migrational policies of the government would contribute toward effective control and regulation of migratory processes, and also the strengthening of the national security of the country.
Furthermore, in view of the similarity of migratory processes, we propose a study of the experience of the Russian Federation, where there is a single agency in the system of the
Ministry of the Interior of the Russian Federation – the Federal Migrational Service, under the function of which, together with the management of unified migrational policies, comes the function of the consideration of issues of citizenship, documentation, registration of the population, control of exit, residence, and entry of foreigners, and the giving of permission for the bringing in of a foreign work force.
The tendency of increase in illegal labor emigration to Kazakhstan is observed – so called “seasonal workers.” This, in the first place, pertains to citizens of the Central Asian countries of the CIS – Uzbekistan, Tajikistan, and Kyrgyzstan, where there is a slow pace of economic development, a low standard of living, and tension in the social and political situation. Considering the given factors, the poorer part of the population strives to leave the country in search of work and better living conditions, including within Kazakhstan. For a series of objective and subjective reasons, they often must enter and work in a foreign country illegally, creating a deficit of jobs in the local labor market and prerequisites for the development of such phenomena as unemployment. At the same time, employers in Kazakhstan, being interested in an inexpensive work force, willingly hire illegal migrants, which deepens the situation in the labor market and does not pay a significant sum of taxes to the country’s budget. Often, citizens of Tajikistan, Uzbekistan, and Kyrgyzstan, having come to Kazakhstan in search of work, become victims of deceit, fraud, and exploitation by employers. These citizens, having agreed to the completion of work without the conclusion of a contract or agreement with an individual, not having proper licenses, at the same time residing in Kazakhstan illegally, become potential victims and subject themselves to similar criminal infringements.
To the question, “Are the rights of workers – that is, people who have come to Kazakhstan for work – being observed?” out of 1,500 respondents only 18% answered positively. At the same time, 42.5% of respondents think that rights of migrant workers are being partially observed, and 16.8% think that rights of migrant workers are not observed at all. The given results witness to the necessity of improvement of national legislation and law-enforcement practices in relation to migrant workers and members of their families.
Illegal labor migration and the search for effective methods of its regulation is one of the most serious problems of Kazakhstan’s migration politics. The positive influence of the immigration flow on the development of economy, the demographical situation, and the ensuring of the migrational security of the country depends largely on the making of timely and proper decisions in this area. The main objective in this connection is not only the strengthening of measures to suppress illegal immigration, but also the creation of conditions for the expansion of legal labor migration and legalization of migrants currently employed.
As a whole, an analysis of the situation of human rights in the course of migratory processes shows, that despite ongoing work, there are isolated instances of the violation of the law and human rights by governmental agencies and their responsible officials, and also by migrants themselves.
Kazakhstan has encountered issues regarding refugees in recent years. On January 1, 2009, 237 families (578 people) were officially registered as refugees in the State.
Individuals receiving refugee status are mainly from Afghanistan (575 people).
Refugee status is given in compliance with the Law on the Conferment of Refugee Status, approved by decree by the Ministry of Labor and Social Protection of Kazakhstan on November 20, 2007 No. 273-P, registered in the Ministry of Justice of Kazakhstan on February 19, 2008.
The activities of government agencies dealing with the problem of refugees are based on articles of the Geneva Convention of 1951 “On the Status of Refugees” and its Protocol of 1967, and the Law “On the Legal Position of Foreign Citizens in Kazakhstan.”
On December 15, 1998, Kazakhstan officially endorsed the Convention of 1951 on the Status of Refugees and its Protocol of 1967, and took upon itself certain responsibilities in relation to refugees before the international community. , These are, first of all, the principles of non-deportation, accessibility of procedure, information, opportunity to appeal a decision, and provision of registration for the term of consideration and appeal. Kazakhstan’s endorsement of the Convention significantly preceded constructive cooperation between governmental officials and the office of the UN High Commission for Refugees (UNHCR) in Kazakhstan.
In harmony with the law, “On Migration of the Population,” the procedure for working with individuals petitioning for acknowledgement as refugees and definition of their status in Kazakhstan and their registration was begun in 1998.
Refugees in Kazakhstan are foreigners petitioning Kazakhstan for their acknowledgement as refugees, who, in view of valid danger could become victims of persecution for political convictions, racial characteristics, religious beliefs, citizenship, nationality, or belonging to a certain social class, those who are forced outside of their country of citizenship and do not have the right to make use of the protection of their country or not wish to on account of such dangers, or individuals without citizenship, outside of the country of their former usual residence, who can not or do not wish to return to it on account of these dangers.
The majority of refugees – 88,1%, live in the city of Almaty, and the rest in the Southern Kazakhstan and Karaganda Regions. Regarding education, 99 refugees have higher education, 14 have secondary specialized education, 248 have secondary general education, 126 have primary education, and 18 refugees have no education.
In compliance with the requirements of the Code of Administrative Offenses of the Republic of Kazakhstan, the observance of regulations on the residence of refugees is continually monitored, and a monthly consultative advisatory meeting is conducted with representatives of social organizations on the legal protection of refugees.
In November 2007, in a meeting with the Head of State, the UN High Commissioner for Refugees, Mr. António Guterres, giving a positive assessment of the situation with human rights in Kazakhstan, noted the necessity of the fulfillment by the State of its international responsibilities in the area of rights of refugees, and requested the passing of a special Law of Kazakhstan “On Refugees.”
With the goal of improving national legislation and law-enforcement practices in regards to refugees, we consider advisable the expedited passing of the Law of Kazakhstan “On Refugees” by Parliament.
In harmony with the foregoing, we recommend the Government and Parliament of Kazakhstan during the period of 2009-2012 put into practice the following measures of the National Plan:
- Eliminate contradictions between legislation and bureaucratic instructions regulating the freedom of movement within the country.
- Develop mechanisms and procedures for monitoring and suppressing the exit from the country of citizens of Kazakhstan with the goal of permanent residence abroad whose exit is forbidden (bearers of government secrets, individuals for whom was chosen preventive punishment in the form of a written statement not to leave the country, etc.).
- For the effective coordination of work with migrants, in 2012 create a single governmental agency for migration within the Government of Kazakhstan.
- In 2012, ratify the UN International Convention on the protection of the rights of all migrant workers and members of their families.
- Expedite the adoption of the Law of Kazakhstan “On Refugees.”
- Develop a procedure of dealing with individuals seeking refuge and migrants, not permitting their deportation or extradition without a judicial decision.
- Create and introduce a modern system of border and migrational control and network of temporary holding points for foreign citizens, individuals without citizenship, and individuals seeking refuge or not having a certain legal status at border crossing points of the Border Service of Kazakhstan.
- Create an open and accessible system of informing foreign citizens or individuals without citizenship of legislation regarding entry and residence in the territory of Kazakhstan and the migrational legislation of the country.
- Conclude international agreements on legal assistance in criminal cases and the extradition of individuals from countries to which they illegally take citizens of the Republic of Kazakhstan for the purpose of sexual, labor, or other exploitation.
- In 2010, write and pass the Law “On Documents of Identity of a Citizen of the Republic of Kazakhstan.”
- In 2012, write and pass the Law “On the Introduction of Amendments and Addendums to Legislation of the Republic of Kazakhstan Regarding Issues of the Registration of the Population.”