Expulsion of a foreigner or stateless person from the Republic of Kazakhstan

      In accordance with article 317-12 of the Civil Procedure Code, an application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan is submitted by the internal affairs bodies to the court in writing or in the form of an electronic document at the place of stay and (or) registration of the foreigner or stateless person.

According to paragraphs 10-16 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice of considering cases on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan", hereinafter referred to as "NP", a violation of the law resulting in the commission by a foreigner or a stateless person of an administrative offense providing for administrative expulsion as sanctions is excluded from the grounds for the expulsion of a person in civil procedure I'm fine.

Consideration of cases on the application of internal affairs bodies for the expulsion of foreigners or stateless persons from the Republic of Kazakhstan for violation of the legislation of the Republic of Kazakhstan is carried out in a special procedure (Chapter 36-4 of the CPC).

An application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan is submitted by the internal affairs bodies to the court at the place of residence (actual location) of foreigners or stateless persons and (or) at the place of their registration (Articles 317-12 of the CPC).

An application for the expulsion of these persons in accordance with part 3 of Article 55 of the CPC may be submitted by the prosecutor.

The court considers an application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan within ten days from the moment of initiation of the case with the mandatory participation of the foreigner or stateless person, as well as the prosecutor.

Failure to appear at a court hearing of a foreigner or a stateless person, in respect of whom there is no information about the notification, is the basis for postponing the trial (part 2 of Article 187 of the CPC).

If the actual place of stay is unknown and it is impossible to consider the application for the expulsion of these persons within the time limits established by law, the court is obliged to declare a search (part 2 of Article 135 of the CPC), and also has the right to suspend the proceedings (subparagraph 4) of Article 243 of the CPC). The time limits set by the court for expulsion must be reasonable.

From all the judicial acts studied, it follows that applications for the expulsion of foreigners and stateless persons from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan were submitted in accordance with Articles 317-12 of the CPC by internal affairs bodies to the court at the place of residence (actual location) of foreigners or stateless persons or at the place of their registration.

Applications for the expulsion of foreigners and stateless persons from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan are submitted in accordance with the requirements of Articles 317-12 of the CPC, by internal affairs bodies to the court at the place of residence (actual location) of foreigners or stateless persons or at the place of their registration.

The internal affairs bodies, in applications for the expulsion of foreigners or stateless persons, indicate the facts confirming the violation of the legislation of the Republic of Kazakhstan by foreigners or stateless persons, in accordance with Article 317-13 of the CPC.

When making a decision on this category of cases, the courts take into account the offenses committed by a foreigner or a stateless person and are guided by the relevant norms of the Administrative Code of the Kyrgyz Republic and the Criminal Code of the Republic of Kazakhstan on the period of lifting an administrative penalty, the consequences of repayment and removal of a criminal record.

 

Case No. 2-727/2015 on the application of the Eskeldinsky District Department of Internal Affairs for the forced expulsion of a foreigner Makagon V.A. for violating the legislation of the Republic of Kazakhstan, indicating that Makagon V.A. received Russian citizenship on May 05, 2006 and is registered at the address: 5 Lenin St., Cheremkhovsky district, Svirsk, Russian Federation.3. received a passport of a citizen of the Russian Federation.

A foreigner has been living on the territory of the Republic of Kazakhstan with an invalid residence permit for more than four years, for which he was brought to administrative responsibility under part 4 of Article 492 of the Administrative Code in the form of a fine. While living in the Republic of Kazakhstan, he was also prosecuted and convicted under paragraphs "c, d" of part 2 of Article 178 of the Criminal Code to 5 years in prison with a sentence of restriction of liberty.

By the decision of the Eskldinsky District Court of September 30, 2015, Makagon V.A. was expelled from the Republic of Kazakhstan and ordered to leave the territory of the Republic of Kazakhstan within ten days. The costs of expulsion are assigned to Makagon V.A..

 

No. 2-2529/2015 The Migration Police Department of the Department of Internal Affairs of the Almaty region applied to the court for the expulsion of a citizen of the Uzbek Republic, AYTILEUOV TULEGEN ABDRASILOVICH, from the Republic of Kazakhstan, arguing that the latter, being a citizen of the Uzbek Republic, came to the Republic of Kazakhstan on 17.06.2015, upon arrival he registered at the address: Almaty, ul. Tukaya 17, during his stay in the Republic of Kazakhstan, was held accountable for violating the legislation of the Republic of Kazakhstan, so on July 31, 2015, a criminal case was initiated against AYTILEUOV TULEGEN ABDRASILOVICH, under art. 120 part 1 of the Criminal Code of the Republic of Kazakhstan and on August 11, 2015, the criminal case was terminated on the basis of art. 35 part 1 paragraph 12 of the Criminal Procedure Code of the Republic of Kazakhstan and art. 68 part 1 The Criminal Code of the Republic of Kazakhstan (reconciliation).

By the decision of the Yenbekshikazakh District Court on October 08, 2015, AYTILEUOV T.A. was expelled from the Republic of Kazakhstan within 15 days from the date of entry into force of the decision. The financing of the relevant activities is determined at the expense of budgetary funds.

 

No. 2-2018/2015 By the decision of the Yenbekshikazakh district Court on August 12, 2015, the application of the Migration Police Department of the Department of Internal Affairs of the Almaty region for the expulsion of DAVLATYAROV SERIKBAY KUCHKAROVICH from the Republic of Kazakhstan was satisfied, it was decided to expel DAVLATYAROV SERIKBAY KUCHKAROVICH from the Republic of Kazakhstan within 15 days from the date of entry into force of the decision.

The financing of the relevant activities is determined at the expense of budgetary funds. The reason for satisfying the application was the violation of the legislation of the Republic of Kazakhstan committed by the foreigner, that is, he was twice brought to administrative responsibility under Articles 79-5, Part 1 of the Administrative Code of the Republic of Kazakhstan and Article 73, Part 2 of the Administrative Code of the Republic of Kazakhstan.

 

According to Part 3 of Articles 317-14 of the CPC, court costs, as well as expenses for expulsion, are borne by expelling foreigners or stateless persons or organizations or individuals who invited them to the Republic of Kazakhstan.

In cases where the named persons do not have or do not have sufficient funds to cover the costs of expulsion, the relevant measures are financed from the budget (paragraph 16 of the NP). The time limits set by the court for expulsion must be reasonable.

When determining the period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan, it is necessary to take into account the specifics of financing the expulsion procedures. We consider the above judicial acts to be legitimate, since the courts, when considering a particular case, determined a reasonable time for the expulsion of a foreigner from the Republic of Kazakhstan, and also correctly resolved the issues of financing the costs of expulsion.

According to Articles 332, 317-5 of the CPC, a court decision on the expulsion of a foreigner or stateless person from the Republic of Kazakhstan is not subject to appeal and appeal, but may be reviewed in cassation and supervisory review.

Despite the above-mentioned requirements of the law, the courts for the above-mentioned decisions in the operative part of the decision on the expulsion of a foreigner or stateless person from the Republic of Kazakhstan indicated that the decision enters into force from the date of its adoption serves as the basis for the expulsion of a foreigner from the Republic of Kazakhstan, while not specifying the procedure for appealing the decision.

 

Case No. 2-254/2015 Karatal District Department of Internal Affairs of the Almaty region motivated the application for expulsion from the Republic of Kazakhstan of a citizen of the Russian Federation Nosova I.S. by the fact that Nosova I.S. has been living at 1 Kuznetsova Street in Ushtobe since August 2007, and had an expired residence permit with her, i.e. she lived under an invalid residence permit, for which she was brought to administrative responsibility on April 08, 2014 under Article 377, Part 3 of the Administrative Code of the Republic of Kazakhstan. Thus, while living in the territory of the Republic of Kazakhstan, she violated the legislation of the Republic of Kazakhstan.

In rejecting the application for expulsion, the court stated that Nosova I.S. was born in Panfilov, Almaty region. According to Nosova I.S., she is in a registered marriage with Nosov and lives with him at the address in Ushtobe, Kuznetsova St. No. 1. On April 08, 2014, by a decree of the Karatal District police Department, Nosova I.S. was brought to administrative responsibility under Part 3 of Article 377 of the Administrative Code.

In accordance with Article 61 of the Administrative Code of the Republic of Kazakhstan, Nosova I.S. on the day of filing an application for expulsion is not considered a person subjected to administrative responsibility, i.e. a person who violated the legislation of the Republic of Kazakhstan.

 

Case No. 2-135/15 The Karatal District Department of Internal Affairs applied to the court for the expulsion of a citizen of the Russian Federation, A.N. Pchelintseva, from the Republic of Kazakhstan, stating that A.N. Pchelintseva, being a citizen of the Russian Federation, came to the Republic of Kazakhstan in June 2010 and stayed in the territory of the Republic of Kazakhstan with temporary registration until August 16 in 2014.

While in the territory of the Republic of Kazakhstan, she was brought to criminal responsibility and convicted by the verdict of the Karatal District Court dated March 20, 2012 of committing a crime under paragraphs "a, d" of part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan to imprisonment for a term of 3 (three) years of imprisonment without confiscation of property, with serving the sentence in correctional colony of general regime.

Due to A.N. Pchelintseva's violation of the legislation of the Republic of Kazakhstan, they asked to expel her from the Republic of Kazakhstan. By the decision of the Karatal District Court of March 10, 2015, the application for the expulsion of A.N. Pchelintseva from the Republic of Kazakhstan was refused. The refusal is motivated by the fact that the applicant has not provided evidence confirming the commission of violations of the legislation of the Republic of Kazakhstan by A.N. Pchelintseva.

The decisions have not been appealed or protested, and they have entered into legal force.

 

A person is not considered to have been subjected to an administrative penalty after one year from the date of execution of the court's decision (article 66 of the Criminal Code).

Cancellation or removal of a criminal record cancels all legal consequences related to a criminal record (Part 7 of Article 77 of the Criminal Code of the Republic of Kazakhstan). When making a decision on this category of cases, the courts take into account the offenses committed by a foreigner or a stateless person and are guided by the relevant norms of the Criminal Code of the Kyrgyz Republic and the Criminal Code of the Republic of Kazakhstan on the period of lifting an administrative penalty, the consequences of repayment and removal of a criminal record.

When considering cases on the expulsion of a foreigner or a stateless person from the Republic of Kazakhstan, the courts should consider the expediency of the continued residence of a foreigner or a stateless person in the Republic of Kazakhstan, examine the actual state of affairs: whether the person maintains family relations, whether he participates in the upbringing of children, whether he is registered as the father of children born in a civil marriage with a citizen Of the Republic of Kazakhstan, to take into account the stability of such family relations, the presence of offenses, that is, to proceed from the balance of private and public interests.

If the person being questioned for expulsion provides information about the presence of a family and minor children living with them, the courts must take measures to verify the circumstances of their personal marital status.

In accordance with paragraph b) According to Article 28 of the Law of the Republic of Kazakhstan "On the Legal status of foreigners", a foreigner may be expelled from the Republic of Kazakhstan if he has violated the legislation of the Republic of Kazakhstan.

Regulatory and legal framework

The main regulatory legal acts regulating the issues of expelling foreigners and stateless persons from the Republic of Kazakhstan are the Constitution of the Republic of Kazakhstan.;

The Code of the Republic of Kazakhstan "On Administrative Offenses",

Civil Procedure Code (Chapter 36-4), the Law of the Republic of Kazakhstan dated June 19, 1995 "On the legal status of foreigners";

International Covenant on Civil and Political Rights (New York, December 16, 1966); Convention on the Legal Status of Migrant Workers and Members of Their Families of the Member States of the Commonwealth of Independent States (Chisinau, November 14, 2008);

The Treaty on the Legal Status of Citizens of One State Permanently Residing in the Territory of Another State (Moscow, April 28, 1998) and other international treaties ratified by the Republic of Kazakhstan;

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated December 13, 2013 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan".

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