On the recognition of illegal inaction in the form of not responding to appeals

No. 6001-23-00-6ap/1373 dated 12/07/2023

Plaintiff: K.V.

Respondent: GU "Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Police Department)

The subject of the dispute is the recognition of illegal inaction in the form of non-response to appeals, illegal and the cancellation of the conclusion on the cancellation of the permanent residence permit.

Review of the plaintiff's cassation complaint PLOT:

K.V. was documented with a foreigner's residence permit in January 2001 and registered at the address.

On February 9, 2020, she left the Republic of Kazakhstan to visit her daughter, who lives in the Russian Federation, where she currently lives.

Due to the expiration of the residence permit on October 28, 2020, she, through her representative, applied for an extension of the residence permit in January 2021, April 27, 2022, June 10, 2022,

July 13, 2022. However, she did not receive any responses to the appeals sent to the defendant in 2022.

On October 19, 2022, by an opinion approved by the acting head of the Police Department, the permanent residence permit previously granted to the plaintiff in the Republic of Kazakhstan was revoked on the basis of the Law "On Population Migration" (paragraph 13) of Article 49).

On October 19, 2022, the Migration Service Department of the Police Department issued a notification, which was sent to the plaintiff on October 21, 2022.

K.V. filed a lawsuit with the court to declare illegal the inaction of the defendant of the Police Department in the form of failure to respond to appeals dated April 27, 2022, June 10, 2022, July 13, 2022, recognition as illegal and cancellation of the Decision on revocation of the permit, notification dated October 19, 2022.

Judicial acts:

1st instance: the claim is satisfied. The inaction of the Police Department in the form of non-responses to appeals dated April 27, 2022, June 10, 2022, and July 13, 2022 was recognized as illegal.

The conclusion on the cancellation of the permanent residence permit in the Republic of Kazakhstan and the "foreigner's residence permit" dated October 19, 2022 by a citizen of the Russian Federation, K.V. (hereinafter referred to as the Conclusion on the cancellation of the permit), was declared illegal and canceled.

Appeal: the court's decision has been changed. The court's decision regarding the satisfaction of the claim for recognition as illegal and the cancellation of the Decision on the cancellation of the permit was canceled and in this part a new decision was made to dismiss the claim in this part.

Cassation: the decision of the judicial board is upheld.

Conclusions: The court of first instance justified the satisfaction of the claim regarding the recognition as illegal and the cancellation of the Decision on the cancellation of the permit by the fact that the reasons for the impossibility of the plaintiff's return to the Republic of Kazakhstan were restrictions imposed due to the threat of coronavirus and doctors' advisory opinions. - oncologists, the absence of damage to the state, the actions of the plaintiff (staying in the territory of the Republic of Kazakhstan for less than 183 calendar days) do not pose a public danger, the adoption of the contested administrative act does not lead to the onset of public benefit for the plaintiff, the Conclusion does not correspond to the form according to Appendix No. 11 to the Rules.

The court of appeal, having disagreed with the above conclusions of the court, canceling the decision regarding the satisfaction of the claim, reasonably proceeded from the following.

By virtue of paragraph 18 of the "Rules for registration, issuance, replacement, surrender, withdrawal and destruction of the passport of a citizen of the Republic of  Kazakhstan, identity card of a citizen of the Republic of Kazakhstan, residence permit of a foreigner in the Republic of Kazakhstan, certificate of a stateless person, refugee certificate and travel document", approved by the resolution   On August 26, 2013, No. 852 of the Government of the Republic of Kazakhstan issued a residence permit for a foreigner in the Republic of Kazakhstan, foreigners must personally submit the necessary documents to the authorized state body.

The quarantine restrictions were imposed on March 15, 2020 and lifted on June 6, 2020, and the residence permit expired on October 28, 2020.

The doctor's advisory opinion on the assessment of the patient's health is advisory in nature.

A misspelling when issuing an Opinion on revocation of a permit cannot be the basis for declaring an administrative act illegal, as it does not affect its essence and content.

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