On the recognition of illegal actions to refuse to cross the State border of the Republic of Kazakhstan

No.6001-23-00-6ap/1310 dated 11/28/2023

Plaintiff: G.V.

Respondent: Russian State Institution "Management of Border Control of the Border Service of the National Security Committee of the Republic of Kazakhstan" (CPC KNB)

Interested parties: State Institution "Ministry of Internal Affairs of the Republic of Kazakhstan" (MIA), State Institution "Police Department" (Police Department)

The subject of the dispute: on the recognition of illegal actions to refuse to cross the State border of the Republic of Kazakhstan

Review of the plaintiff's cassation complaint PLOT:

A citizen of the Russian Federation, G.V., filed the above-mentioned claim with the court, arguing that on September 20, 2022, the defendant refused to allow him to cross the State Border of the Republic of Kazakhstan at the international airport to board a flight to the UAE, since, according to the Berkut Unified Information System (UIS), the plaintiff's temporary registration in Kazakhstan had expired. December 1, 2021. At the same time, the plaintiff provided the original certificate stating that his registration had been extended until October 23, 2022, but the staff of the CPC of the National Security Committee also refused to allow him to cross the border.

On September 23, 2023, the plaintiff filed a complaint with the CPC of the National Security Committee about the unlawful actions of employees, to which an administrative act was issued on October 5, 2022, according to which no violations were found in the actions of the military personnel of the CPC of the National Security Committee.

The plaintiff believes that by his actions, the CPC of the National Security Committee, violating his rights as a foreign citizen, unreasonably refused to allow him to cross the State border, and he also suffered losses, in connection with which he asked the court to recognize the defendant's actions as illegal.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision remains unchanged.

Cassation: the decision of the judicial board is canceled. The case has been sent for new consideration to the court of appeal in a different composition of the court.

Conclusions: in the Republic of Kazakhstan, the plaintiff has a temporary registration. On November 10, 2021, the Police Department issued a certificate of temporary registration of a foreigner with a validity period from June 7, 2021 to December 1, 2021, extended until October 23, 2022 inclusive.

1. The refusal of the SMAS claim was motivated by the fact that (key arguments):

a) according to paragraphs 6, 7, 10 of Article 19 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" (the Law), the passage of persons across the State Border is carried out by the Border Service of the National Security Committee of the Republic of Kazakhstan.

Persons are allowed to cross the State Border if they have documents for the right to enter or leave the Republic of Kazakhstan, as well as if there are no restrictions on these persons established by the laws of the Republic of Kazakhstan.

Foreigners and stateless persons who are not allowed or restricted entry to the Republic of Kazakhstan, as well as persons against whom a decision has been taken to prohibit departure from the Republic of Kazakhstan, are not allowed to cross the State border in accordance with the laws of the Republic of Kazakhstan.;

b) in accordance with paragraph 10 of Resolution No. 148 of the Government of the Republic of Kazakhstan dated January 21, 2012 (Government Resolution No. 148) "On approval of the Rules for the Entry and Stay of Immigrants in the Republic of Kazakhstan, as well as their departure from the Republic of Kazakhstan ...", a temporary residence permit is issued in the information system of the migration service with the issuance of a temporary residence permit the residence of an immigrant with the subsequent transfer of information to the EIS;

c) according to sub-paragraphs 3), 5), 5-2) of Article 9 of the Law of the Republic of Kazakhstan

"On population migration" internal affairs bodies: form a single database for registration of entry and exit of foreigners and stateless persons, provide systematic updating of information, and also carry out timely information exchange with the authorized body on population migration, the Ministry of Foreign Affairs of the Republic of Kazakhstan and the national security agency; register foreigners and stateless persons; migration processes are monitored;

d) when conducting an inspection in accordance with article 23 of the Law, the defendant found that there was no information about the extension of the plaintiff's registration period, and therefore the plaintiff was refused to cross the border.;

e) from the evidence provided by the defendants, namely screenshots from the EIC, it follows that adjustments regarding the extension dates took place only at 13:23 hours on September 20, 2022, and data on the extension of the temporary residence permit were entered into the EIC," while the plaintiff was checked at 04:00 hours on September 20;

f) the court takes into account that the CPC of the National Security Committee is not an operator of the Unified Information System, but only uses these databases in carrying out its activities in the absence of competence to make adjustments regarding the period of registration of a foreign citizen.

Based on these findings, SMAS dismissed the claim.

2. While leaving the SMAS decision unchanged and agreeing with its conclusions in full, the Court of Appeal stated that (key arguments):

a) according to paragraph 10 of Article 19 of the Law, foreigners and stateless persons who are not allowed or restricted entry to the Republic of Kazakhstan, as well as persons against whom a decision has been taken to prohibit departure from the Republic of Kazakhstan, are not allowed to cross the State Border in accordance with the laws of the Republic of Kazakhstan. Foreigners and stateless persons who have arrived at a checkpoint or other place where a State border crossing is carried out, and who have no grounds for crossing the State Border, in accordance with international treaties of the Republic of Kazakhstan, return to the country from where they arrived or to the country of their citizenship.;

b) information about the extension of the plaintiff's stay in the Republic of Kazakhstan was entered into the UIC on September 20, 2022 at 13623 hours, departure time 05:25 hours, that is, eight hours after the refusal to cross the border;

c) the original certificate confirming the extension of the foreigner's stay in the country provided at the airport entitles the plaintiff to

residence in Kazakhstan, but in the absence of information in the Unified Information System, cannot be grounds for crossing the border, since border control is carried out through the Unified Information System.;

d) based on the regulatory documents regulating the procedure for the stay of foreign citizens in the Republic of Kazakhstan, the competence of the CPC of the National Security Committee does not include the entry of information into the Unified Information System on the length of stay of foreign citizens.

3. Having checked these other conclusions of the local courts, the judicial board considers that they are unfounded on the following grounds.

Firstly, it follows from the explanations of the representatives of the Police Department that, on their part, information about the extension of the temporary registration of the plaintiff in Kazakhstan was promptly sent to the UIS. At the same time, the defendant's representatives claim that when checking the documents for the plaintiff to cross the State Border on September 20, 2022, there was no updated information about the extension of his registration in Kazakhstan in the Unified Information System.

At the same time, no one denies that such an update in the EIC regarding the plaintiff occurred on September 20, 2022 at 13:23, whereas the plaintiff's flight took off earlier, at 05:25, and only for the reason that the plaintiff himself began contacting the Police Department at that moment.

The courts have not established why the positions of the defendant, the CPC of the National Security Committee, and the interested party, the Police Department, differ, nor have they reliably established why and through whose fault the information on the extension of the temporary registration of the plaintiff in Kazakhstan was not updated from the moment of the actual extension until September 20, 2022.

Secondly, the courts did not enter into the discussion of the authenticity of the original certificate of the extension of the temporary registration of the plaintiff, which he presented to the staff of the CPC of the National Security Committee for crossing the State Border, as well as the presence or absence of the defendant's administrative discretion to resolve the issue and cross the State border on the basis of this certificate.

The Court of Appeal argued that in the absence of information in the EIC, the original certificate submitted by the plaintiff could not be grounds for crossing the border, since border control was carried out through the EIC.

However, this argument is vulnerable from a legal point of view, since the court did not enter into the discussion of the issue that information in the Unified Information System is entered on the basis of a certificate of temporary registration of a foreign citizen, respectively, the court did not give a reasoned legal assessment of the possibility of crossing the State border upon presentation of such a certificate.

Thirdly, the courts cited the norms of legislation on the competence of internal affairs bodies, including the fact that they form a single database for recording the entry and exit of foreigners and stateless persons, provide systematic updates of information, and also carry out timely information exchange with the authorized body on population migration, the Ministry of Foreign Affairs of the Republic Kazakhstan and the national security agency.

However, given the circumstances of the case, as well as the direct relationship of the Police Department to the dispute under consideration, the courts did not resolve the issue of his involvement as a co-defendant in this case.

In the aggregate of the above, the judicial board considers that the local courts did not fully clarify the circumstances of the case that are essential for the lawful resolution of the case, incorrectly applied the norms of substantive and procedural law to be applied, and also considered the case in contradiction with the principles of administrative justice and the objectives of administrative proceedings, which is the legal basis for the cancellation of the contested judicial acts and referral of the case for new consideration.

Taking into account the above, the administrative case is sent for a new hearing to the court of appeal in a different composition of the court.

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