Unscheduled inspection of the Federal Migration Service. Checking the activities of an enterprise, features of checks by the Federal Migration Service
With tightening control over labor migration and strengthening of administrative responsibility for illegal labor activities of foreign citizens, visits by employees of the Federal migration service RF (FMS RF), as a rule, do not promise anything good. Sometimes it comes to absurd cases (see additional material). In this regard, it will not be superfluous to know the operating procedure of the FMS when conducting inspections.
Normative base
Almost a year ago, on June 28, 2009, the Administrative Regulations for the execution of the state function of control and supervision over compliance with the provisions of the migration legislation of the Russian Federation by foreign citizens and stateless persons and over compliance with the rules for attracting employers and customers of work (services) came into force foreign workers in the Russian Federation and the use of their labor (hereinafter referred to as the Administrative Regulations).
The above document clarified the activities of the Federal Migration Service during inspections. However, a number of provisions of the regulation contradict Federal Law No. 294-FZ of December 26, 2008 “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” (hereinafter referred to as the Federal Law) despite the fact that clause 8 of the regulation in Among others, he refers to this normative act, which allegedly guided the Ministry of Internal Affairs of the Russian Federation in preparing the regulations.
In particular, the regulations do not oblige the FMS, when conducting on-site inspections, to notify the person being inspected of their visit at least 24 hours in advance. IN in this case The federal law has greater legal force than the Administrative Regulations, and this fact can play a decisive role in appealing the results of the inspection.
It is worth remembering that the Federal Law regulates relations only between the state and business entities (legal entities and individual entrepreneurs). Relations between citizens and the state during inspections are regulated by Administrative Regulations.
The objects of inspection are individuals, legal entities, individual entrepreneurs, as well as vehicles, including transport routes international destinations road, rail, sea, river, aviation transport, and places of stay (residence) of foreign citizens.
Subject of inspections First of all, compliance with the legislation regulating the procedure for hiring foreign workers and stateless persons is important. Checking compliance with the rules of stay of foreign citizens and stateless persons on the territory of the Russian Federation plays a secondary role. This is explained by the fact that fines for illegal labor activities of foreign citizens can reach 800 thousand rubles for each employee. Accordingly, in this case, inspectors have more arguments when communicating with negligent employers.
Types of checks
Checks may be planned, which n are carried out no more than once every 3 years according to a pre-approved plan and agreement with the prosecutor's office. The administrative regulations also require carrying out unscheduled inspections, however, it should be borne in mind that in relation to legal entities and individual entrepreneurs they can only be carried out in two cases:
- expiration of the deadline for fulfilling a previously issued order;
- order of the head of the Federal Migration Service, issued in accordance with the instructions of the President of the Russian Federation or the Government of the Russian Federation.
The above checks may be documentary And visiting. During a documentary check, the FMS is limited to the requirement to provide a certain set of documents. An on-site inspection promises more trouble, as it is associated with a visit by FMS employees and, accordingly, a more detailed inspection.
Procedure for conducting inspections
Any inspection is carried out on the basis of an order from the head of the territorial division of the FMS. The order to conduct an inspection must contain the following mandatory details (clause 31 of the Administrative Regulations):
- name of the state control (supervision) body;
- Full name, positions of persons authorized to conduct the inspection, as well as experts and representatives of expert organizations involved in the inspection;
- object of inspection;
- goals, objectives, subject of the inspection and the period for its implementation;
- number and date of the order to conduct the inspection;
- legal grounds for conducting an inspection;
- list of administrative regulations for carrying out control (supervision) measures;
- a list of documents, the submission of which by a legal entity or individual entrepreneur is necessary to achieve the goals and objectives of the inspection (indicated when conducting an inspection in relation to a legal entity or individual entrepreneur);
- start and end dates of the audit.
Let's take a closer look at conducting an on-site inspection. According to clause 37 of the Administrative Regulations, it should include the following actions:
- departure to the address of location (activity) of the inspected object;
- announcement of an order to conduct an inspection;
- presentation of official identification;
- delivery of a copy of the order to conduct an inspection to the legal representative of the inspected object;
- familiarization of representatives of the inspected object with their rights and responsibilities during the inspection;
- inspecting the territory and establishing the fact of the presence of foreign citizens on the territory of the inspected facility, checking their compliance with the provisions of the migration legislation of the Russian Federation, including determining the legality of their stay and the activities they carry out. A record of the inspection of the territory is made in the final inspection report.
During the inspection, photography and video may be used. If an administrative offense is detected during an inspection, in order to record evidence, an inspection protocol is drawn up in the prescribed manner. If a protocol on an administrative offense is drawn up, a corresponding entry is made in the inspection report;
- study of documents, data and information obtained during the inspection and requested at the inspected object;
- transmission of requests for provision additional information or information for the preparation of which time is objectively necessary, in the manner established Administrative regulations;
- studying documents provided upon request;
- comparing the originals of the requested documents with their copies and signing acts of acceptance and transfer of copies of documents to be included in the inspection materials;
- request (oral) from a representative of the inspected object and receiving oral explanations as necessary;
- as necessary, requests from officials of the inspected object, other organizations and government bodies for additional documents and information;
- recording, in accordance with the established procedure, identified facts of violation of the migration legislation of the Russian Federation;
- completion of the check.
Realities of practice
In practice, when conducting on-site inspections, FMS employees do not consider it necessary to explain the rights and responsibilities of the inspection participants, or prefer to first detain persons suspected of violating migration laws, and then explain the purpose of the visit. Unfortunately, violation of the established order of procedures during inspections is not a significant violation for the court and is not taken into account when appealing the results of inspections.
First of all, during the check, foreign citizens or stateless persons are identified, and their legality of stay on the territory of the Russian Federation is checked. If they were caught at work, then the legality of their work activity is clarified, as well as the authority of the inspected object to attract foreign work force.
Upon completion of the inspection, an act is drawn up, and, if an administrative offense is detected in the field of migration legislation of the Russian Federation, a protocol on the administrative offense. Persons detained during the inspection are sent to a special detention center to await their fate before trial. We strongly recommend that employers prepare notarized powers of attorney to represent interests in court from especially valuable employees if there is a risk of their detention. Otherwise, it will be almost impossible to take part in the defense, since employees may be sent directly to court and there may simply not be enough time to draw up a power of attorney.
Administrative liability for violation of migration legislation
Please note that the penalty for illegally recruiting foreign workers is everyone attracted employee.
This article is a selection of the most common questions from our clients and brief answers to them.
Every year, an increasing number of entrepreneurs attract foreign citizens to work, which becomes a reason for the inspection authorities to pay another visit and make sure that the employer does not violate migration requirements. We will tell you about the types of inspections by the Federal Migration Service, the grounds, the procedure for conducting them and the procedure for appealing the results of the inspection.
Checks of compliance with the requirements of migration legislation are carried out in relation to entrepreneurs and organizations that use the labor of foreign citizens, provide foreign citizens with a place of residence and provide them with other services. Such checks may be carried out by the federal migration service or the prosecutor's office. In this article we will talk about the procedure for conducting checks by the migration service.
1. Types of inspections by the Federal Migration Service: scheduled and unscheduled.
In accordance with the law, migration authorities have the right to conduct scheduled and unscheduled inspections of entrepreneurs. Scheduled inspections by the FMS are carried out no more than once every three years on the basis of an order from the head of the territorial body of the migration service or his deputy. Scheduled inspections by the Federal Migration Service will be subject to mandatory inclusion in the annual plan of inspections of entrepreneurs, which is published in the public domain on the website of the Prosecutor General's Office of the Russian Federation. The duration of a scheduled inspection cannot exceed 20 working days.
The reason for conducting an unscheduled inspection by the FMS is the receipt by the migration authority of information about a possible violation by an entrepreneur of the requirements of migration legislation, the expiration of the deadline for fulfilling an order previously issued by the migration authority, the request of the prosecutor, etc. The head of the migration authority also issues an order on conducting an unscheduled inspection. An unscheduled inspection is subject to mandatory approval from the prosecutor's office.
Scheduled and unscheduled inspections by the Federal Migration Service can be carried out in the form of documentary and (or) on-site inspections.
2. FMS inspections: deadline.
The duration of the FMS inspection cannot exceed 20 working days per year, for a small enterprise - 50 hours, for a micro-enterprise - 15 hours.
3. FMS inspection: order to conduct an inspection.
Scheduled and unscheduled inspections by the FMS are carried out on the basis of an order to conduct an inspection. As already mentioned, the authority to issue orders belongs to the head (deputy head) of the territorial divisions of the migration service.
The inspection order specifies:
— name of the division of the migration authority.
— Full name, position, title of the FMS inspectors authorized to conduct the inspection.
- the person in respect of whom the inspection is being carried out.
— duration of the inspection, start and end date of the inspection, number of hours.
— information about the coordination of the inspection with the prosecutor’s office.
— the grounds for conducting the inspection, the laws regulating the procedure for its conduct.
4. FMS inspections: notification of the entrepreneur about the inspection.
The entrepreneur is notified of the start of a scheduled FMS inspection 3 days in advance, and in case of an unscheduled inspection, 24 hours before the start of the inspection. If an unscheduled inspection is carried out on the basis of received information about possible harm to the life and health of citizens, plants, the environment, or cultural monuments, then preliminary notification of the entrepreneur about the inspection by the FMS is not allowed.
5. FMS check: what do they check?
The FMS inspector specified in the order to conduct the inspection has the right to check documents confirming the right foreign citizen carry out labor activities, receive explanations from employees, demand the provision of internal documents of the organization (charter, staffing table, job descriptions, etc.), inspect the premises, request other information for verification purposes.
Inspection of premises, seizure of documents, sampling and samples must be documented in protocols in accordance with Chapter 27 of the Code of Administrative Offenses of the Russian Federation, since otherwise they lose their evidentiary value.
6. FMS check: rights of an entrepreneur.
In accordance with the law, an entrepreneur has the right:
- be present during the inspection, inspection and inspection of the premises.
— provide explanations on all issues arising during the inspection.
— get acquainted with the inspection materials.
- receive information from the migration authority regarding the subject of the inspection.
- appeal the results of the inspection, as well as the actions of officials of the migration authority.
7. FMS inspection: registration of results.
The results of the FMS inspection are documented in an inspection report. The inspection report is drawn up immediately upon completion in the presence of the entrepreneur or his legal representative. A copy of the inspection report must be handed to the entrepreneur immediately after its preparation or sent to his address by registered mail.
The FMS inspection report indicates: the date, place and time of its preparation, full name, position and title of the inspectors, the grounds for the inspection, the timing of the inspection, and also records the violations identified during the inspection.
8. FMS inspection: measures to respond to violations.
In accordance with the law, if violations are detected during an inspection, the migration authority has the right to: initiate a case of an administrative offense, issue an order, and send information about violations to the authorized body.
9. FMS inspection: appealing the results.
Article 20 of the Law on the Protection of the Rights of Entrepreneurs states that the results of an inspection carried out with gross violations may be declared invalid by the court at the request of the entrepreneur. The law includes the following gross violations: failure to notify the entrepreneur about the start of the inspection, exceeding the deadline for the inspection, failure to deliver the inspection report, and the involvement of unaccredited experts in the inspection.
To invalidate the results of the FMS inspection, you must submit an application to the arbitration court.
"Personnel officer. Personnel records management", 2010, N 4
The FMS is coming to you with a check!
This article discusses the procedure for conducting inspections by the Federal Migration Service of employers who use the labor of foreign workers.
At a meeting on the protection of property rights of small and medium-sized businesses, Russian President Dmitry Medvedev uttered the famous phrase that there is no need to “make business a nightmare.” As a result, a new Federal Law dated December 26, 2008 N 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” was issued (as amended on December 27, 2009, hereinafter referred to as the Law on Protection during Inspections ), designed to protect entrepreneurs during inspections by government agencies. This Law established that inspections of entrepreneurs should be carried out no more than once every 3 years, and also approved other rights of employers, which will be discussed below.
The Ministry of Internal Affairs of Russia and the Federal Migration Service of Russia also did not take long to wait and issued an Administrative Regulation (Order of the Ministry of Internal Affairs of Russia, the Federal Migration Service of Russia dated April 30, 2009 N 338/97 “On approval of the Administrative Regulations for the execution of the state function of control and supervision of compliance with the provisions of migration legislation Russian Federation foreign citizens and stateless persons and for compliance with the rules by employers, customers of work (services) of foreign workers to the Russian Federation and the use of their labor") (hereinafter referred to as the Regulations), which more clearly prescribes the procedure for the actions of employees of the Ministry of Internal Affairs and the Federal Migration Service when conducting inspections of entrepreneurs.
But the rights, goals and objectives of the FMS are set out in the Regulations on the Federal Migration Service (approved by Decree of the President of the Russian Federation of July 19, 2004 N 928 “Issues of the Federal Migration Service,” as amended on October 31, 2009) (hereinafter referred to as the Regulations).
Within competence
So what should an employer who has a work permit for foreign workers and permission to attract and use foreign employees be afraid of? In addition to having these documents, the employer needs to remember other points, which we will consider in more detail.
It follows from the Regulations that the FMS cannot conduct operational investigative activities, therefore its employees usually come with police officers who are endowed with this right during an inspection.
In addition to employees of the Ministry of Internal Affairs, employees of the state labor inspectorate may be involved in the inspection - in this case, the inspection will be called joint and employees of both structures will act on the basis of Order of Rostrud No. 40, FMS of Russia No. 66 of 04/03/2007 “On approval of the Regulations on interaction Federal service for Labor and Employment and the Federal Migration Service and their territorial bodies for the implementation of measures to control (supervise) the labor activities of foreign workers on the territory of the Russian Federation." The basis for such measures are the joint inspection plan and the order (order) issued on its basis, signed authorized heads of both structures.In this case, the order must indicate the start and end date of the audit.
During the inspection, employees of the state labor inspectorate determine whether labor contracts and working conditions of foreign workers comply with Russian legislation.
Inspectors are prohibited from being interested in information and circumstances that are not within the competence of the FMS and the state labor inspectorate.
The employer must remember that inspectors are prohibited from being interested in information and circumstances that are not within the competence of the FMS and the state labor inspectorate, as well as disseminating information obtained as a result of the inspection, except in cases provided for by Russian legislation.
Such inspections, like other inspections by regulatory authorities, can be of two types: scheduled and unscheduled. The plan for conducting inspections includes employers who notified the FMS about hiring foreign workers, and unscheduled inspections are carried out on the basis of data received by the FMS about violations of migration legislation. The regulatory authorities must inform about the scheduled inspection in advance - three days before the planned visit to the enterprise, send a registered letter with notification.
The inspection plan is approved by the head of the territorial division of the FMS. It indicates the legal and actual addresses of the objects of inspection, the time of the event and the details of the employees who will conduct it. If the FMS has received information about violations of migration legislation, then FMS employees can check the employer who was not included in the plan (clause 22.1.1 of the Regulations). And a decision on this has the right to be made not only by the head of the territorial body of the FMS, but also by his deputy or by the head of a structural unit, for example, the head of a department of the local Federal Migration Service. At the same time, the new Law on the Protection of the Rights of Legal Entities obligated inspectors to coordinate inspections with the prosecutor's office (clauses 6.1 - 6.4 of Article 9 of the Law on Protection during Inspections).
The decision to conduct an inspection must be documented in the form of an order to conduct an inspection of a specific employer, which, in addition to the name of the company, its actual and legal address, must indicate: the place and purpose of the inspection, the duration of the inspection, the list of documents that must be submitted to the inspectors , as well as data from FMS employees and experts involved in the inspection who will participate in the inspection (clause 31 of the Regulations).
Like any other representative of the inspection departments, the FMS employee is obliged to introduce himself, present his official ID, the original order for the inspection and hand over a copy of it to the head of the organization or the person replacing him, as well as familiarize the representatives of the inspected object with their rights and responsibilities (clause 37 of the Regulations ).
It is important to remember that if FMS employees come without an order or other inspectors are indicated in it, the inspection will be considered illegal. In this case, such inspectors can safely not be allowed into the premises. If they persist or have already entered the territory of the enterprise, you should not show them any documents - the results of such a check can always be contested in court.
From judicial practice. If you were unable to prove to the FMS that different positions in the work permit and employment contract, staffing table are not a violation of Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation, then you can apply to the court to cancel the decision in this regard. This has proven successful for some entrepreneurs. We would like to draw the attention of readers that by the Resolution of the Federal Antimonopoly Service of the North-Western District dated October 8, 2009 in case No. A56-14212/2009, such a cancellation was recognized as justified.
As follows from the case materials, the FMS Office for St. Petersburg and Leningrad region(hereinafter referred to as the Department) carried out an inspection of E. O. Mirzaliev’s compliance with the requirements of the Law on legal status foreigners, during which it was revealed that Mirzaliev E.O. involved in the labor activity of a foreign citizen Mirzaliev Ayaz Oktyabr ogly, who had a work permit series 78 N 090392673 for the type of activity “auxiliary worker”, who actually carried out the work of a shoe repairman.
Based on the results of the inspection, the Department drew up a protocol dated 02/18/2009 N 0000469 on the commission of an administrative offense by E. O. Mirzaliev, liability for which is provided for in Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation, and a resolution was issued to bring E. O. Mirzaliev to justice and punish him with a fine in the amount of 250,000 rubles.
Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation establishes responsibility for attracting a foreign citizen or stateless person to work in the Russian Federation if this foreign citizen or stateless person does not have a work permit, if such permission is required in accordance with federal law.
In the case under consideration, the court established and the case materials confirm that a citizen of the Republic of Azerbaijan, Mirzaliev Ayaza Oktyabr ogly, arrived in the Russian Federation in a manner that does not require a visa, has a work permit on the territory of St. Petersburg, series 78 N 090392673, the permitted type of activity is “auxiliary worker". Consequently, his involvement by Mirzaliev E.O. in labor activities in a specialty not specified in the permit does not form the objective side of an administrative offense, the responsibility for which is provided for in Part 1 of Art. 18.15 Code of Administrative Offenses of the Russian Federation.
Individual entrepreneur Mirzaliev Elman Oktyabr ogly appealed to the Arbitration Court of St. Petersburg and the Leningrad Region with a request to cancel the Department's resolution dated February 26, 2009 N 000469 on bringing him to justice for committing an administrative offense under Part 1 of Art. 18.15 Code of Administrative Offenses of the Russian Federation.
By the court decision dated 04/16/2009, left unchanged by the Resolution of the Thirteenth Arbitration Court of Appeal dated 07/01/2009, the stated claims were satisfied. The legality of the decisions and rulings of the courts was verified by cassation procedure. The decision and ruling of the courts comply with the norms of substantive and procedural law and there are no grounds for their cancellation.
What do inspectors check?
First of all, all foreign citizens and stateless persons present at the inspected facility are subject to verification, or rather, their documents, which FMS employees check for presence and authenticity. These include: identification document, migration card, documents confirming the registration of a foreign citizen or stateless person for migration registration (notification), availability valid visa(if a citizen is from a “visa” country), residence permit or temporary residence permit, if available. Employees will also be interested in a work permit and employment contract. As a rule, inspectors block all exits from the premises and can check the documents of all citizens located on the employer’s territory. And if there is a foreigner who does not work at this facility, it will not be easy for the employer to prove that this citizen is not his employee.
Inspectors will definitely check whether the foreigner works in the position indicated in his work permit. If they do not match, inspectors may consider this a violation of the hiring procedure and fine for this as a violation of labor laws. Little consolation for the employer will be the fact that not a single document regulating the work of foreigners in Russia directly states that the positions must be the same. But in paragraph 1 of Art. 13 of the Federal Law of July 25, 2002 N 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (as amended on December 27, 2009, hereinafter referred to as the Law on the Legal Status of Foreigners) enshrines the right of a foreign citizen to freely dispose of his ability to work and choose his gender activities at your own discretion. But, as practice shows, it is impossible to prove to inspectors that such a discrepancy is not a violation.
And one more important point- a foreign worker has the right to work only in the region specified in the work permit. In case of such non-compliance, the employer may be subject to a fine.
Typically, the maximum period for conducting an on-site inspection is 7 days, but it can be extended by another 7 days, and only by the official who appointed this inspection. But verification of documents without visiting the enterprise is carried out within a period of up to one month, with the possibility of extension for another month (clause 15 of the Regulations).
After checking the workers, it is the turn of the employers. They will definitely check: the staffing table, rental agreements for premises, permission to attract and use foreign workers for “visa-free” foreigners, notification of the attraction of “visa-free” foreign workers to work, statutory documents.
If a foreign employee is on a business trip, the inspectors will also check his documents. The duration of business trips of foreign employees is limited - for temporarily staying foreigners, the duration of a business trip cannot exceed 10 days during the entire period of validity of the work permit (subclause “a”, paragraph 1 of the Decree of the Government of the Russian Federation of February 17, 2010 N 97). The exception is the traveling nature of the work, specified in the employment contract, then the period increases to 60 days. Temporarily residing foreigners can be on a business trip for up to 40 days during the year, and for traveling nature of work - up to 90 days. If a business trip in Russia, then migration card and notification of the arrival of a foreign worker remain the same. If an employee travels abroad, even for one day, then the employer is obliged to notify the FMS about the departure of the foreign citizen, and then, upon entry, re-notify the FMS about his arrival.
If the employee conducting the inspection decides to attach any documents to the inspection materials and take them with him, he must draw up an act of acceptance and transfer of these documents, signed by both parties.
If the employer refuses to provide documents, the FMS employee conducting the inspection issues a written request (clause 58 of the Regulations). In this case, the inspectors will still ensure that they are given them.
Registration of inspection results
Based on the results of the inspection, a report is drawn up. The FMS employee draws it up in two copies, signs and registers it, and introduces it to the representative of the inspected object. If necessary, a copy of this act is sent to other interested government agencies.
Note. Contents of the inspection report
The inspection report shall indicate:
Date, time and place of drawing up the inspection report;
Name of the structural unit of the inspection body;
Date and number of the inspection order;
Last names, first names, patronymics and positions of the employees who conducted the inspection;
Object to be checked;
Date, time, duration and place of the inspection;
Information about the results of the inspection, including about the identified violations of migration legislation, about their nature and about the persons who committed these violations;
Information about familiarization or refusal to familiarize with the inspection report of the authorized representative of the legal entity who was present during the inspection, as well as information about making an entry in the inspection log about the inspection performed or about the impossibility of making such an entry due to the absence of the specified log;
Signatures of the employees who conducted the inspection.
Based on the results of the inspection, the following types of decisions can be made:
On termination of the inspection due to the absence of violations of Russian migration legislation;
On the appointment of an inspection in relation to another object of inspection, in connection with the receipt during the inspection of information about violations of the law by this object;
On termination of the inspection and sending its materials to the prosecutor's office of the Russian Federation, the Ministry of Internal Affairs of Russia, the Ministry of Emergency Situations of Russia, the Ministry of Health and Social Development of Russia, the FSB of Russia, the Federal Drug Control Service of Russia, the Federal Customs Service of Russia and other government agencies, in connection with the identification of signs of crimes and administrative offenses at the inspected facility;
On extending the inspection period;
On drawing up a protocol on an administrative offense or initiating a case on an administrative offence.
All these decisions are formalized in the form of an order, which is signed by the official who issued the order to conduct the inspection. If it was signed by another employee, the employer may demand that it be declared illegal. Interestingly, since 2007, the FMS is not obliged to take the case to court, but can independently make decisions and punish the perpetrators.
A representative of the employer who has violated migration legislation has the right to familiarize himself with the inspection report. Also, if you wish, express your wishes, comments and explanations in the form of a separate document attached to the protocol.
After this, the employer's representative must sign the inspection report. If he does not want to do this, then the FMS employee simply makes an appropriate entry in it - this will not entail any special significance in resolving the case.
Responsibility measures for employers for violating migration laws are given in table. 1, and what threatens the employee is set out in table. 2.
Table 1
Administrative responsibility of the employer
For violation of immigration laws
|
Violation |
Norm |
Responsibility |
Responsibility |
|
Violation of migration rules |
Part 1 |
From 40,000 to |
From 400,000 to |
|
Failure to submit or |
Part 2 |
From 40,000 to |
From 400,000 to |
|
Attraction to labor |
Parts 1 and |
From 25,000 to |
From 250,000 to |
|
Failure to notify the territorial |
Part 3 |
From 35,000 to |
From 400,000 to |
|
Providing by the administration |
Part 1 |
From 45,000 to |
From 450,000 to |
|
Failure to comply with restrictions on |
Part 1 |
From 45,000 to |
From 800,000 to |
table 2
Administrative and other responsibility
Foreign worker
|
Offense |
Normative |
Type of punishment |
|
Foreign violation |
Clause 9 of Art. 18 |
Revocation of work permit |
|
Violation of conditions by an employee |
Clause 2 of Art. 32 |
Cancellation of permission to |
|
Execution by foreign |
Article 18.10 |
A fine of 2000 to |
The procedure for appealing the decision of the FMS
If the employer does not agree with the decision of the employees of the regulatory authorities made based on the results of the inspection, he can appeal the decision to a higher division, which for FMS employees is the central office of the FMS of Russia, located at the address: 107078, Moscow, Boyarsky Lane, building 4, a If this doesn’t help, then go to the prosecutor’s office or court.
It must be remembered that the period for appealing against the actions or inaction of controllers is 3 months from the day the employer became aware of a violation of his rights. The deadline for appealing a decision to impose administrative liability is 10 days after receipt of this decision. If these deadlines are missed for a valid reason, you can file a petition to restore the deadline, indicating the reason.
The complaint is drawn up in any form, and it indicates:
Address, name of the higher-level structure, full name. the person to whom the appeal is made. In the FMS, this is the director of the Federal Migration Service, K. O. Romodanovsky;
Name, TIN, legal address of the organization or certificate of registration as an individual entrepreneur;
FULL NAME. the controller whose action is being appealed;
Time and date of inspection;
The name of the regulatory agency whose act is being appealed;
Number and date of drawing up the act;
Grounds for complaint ( detailed description situations).
The main thing when drawing up a complaint is clear, specific facts, supported by references to the law. It is good if copies of documents confirming the requirements are also attached to the complaint. It is better to make a complaint in two copies, one must be kept for yourself, and the second sent by mail by registered mail with notification or personally take it to the office of the government agency. In this case, it is imperative to demand that the complaint be registered and the incoming number be placed on the second copy. The period for consideration of the complaint is a month, and in case of appealing the decision to bring to administrative responsibility - 10 days.
Based on the results of consideration of the complaint, the following may be issued:
1) if the actions of controllers are appealed:
Full or partial satisfaction of the complaint;
2) in case of appeal against the issued act:
The act is declared invalid;
Refusal to satisfy the complaint;
3) in case of appealing a decision on an administrative violation:
Change of resolution;
Refusal to change the resolution;
Cancellation of the decision, closure of the case;
Cancellation of the decision, new consideration of the case.
If appealing to a higher government agency does not help, then there is only one way left - to the court. If an application to the court is submitted on behalf of an organization, then it is necessary to apply to the arbitration court, and if on behalf of a citizen or official of an enterprise, then to the district court.
It must be remembered that the deadlines for filing are limited by law: if a property claim, then no later than 3 years from the date of violation of rights, in the case of a non-property claim - 3 months. If the decision to impose administrative liability is challenged, then the appeal period is limited to 10 days. Thus, after the introduction of the Inspection Protection Act, employers began to feel more protected. The main thing that this Law introduced: it not only defined the rights of the person being inspected, but also established a restriction on conducting inspections more often than once every 3 years.
Bibliography
1. Commentary on the Code of the Russian Federation on Administrative Offenses (article-by-article) / Ed. N. G. Salishcheva. 6th ed., revised. and additional M.: Prospekt, 2009.
2. Malumov A. Yu. Commentary on the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation” (article-by-article). M.: Justitsinform, 2007.
V. Voskresensky
Referent
1st class
Signed for seal
The Federal Migration Service of Russia is part of the Ministry of Internal Affairs and inspects the activities of legal entities and individual entrepreneurs who employ foreign citizens. At the same time, the Migration Service can conduct both its own and joint inspections, for example with representatives of law enforcement agencies, the Russian Labor Inspectorate or with representatives of tax inspectorates.
The inspections themselves are carried out at least once during the calendar year and are carried out in full compliance with the Administrative Regulations approved by Order of the Ministry of Internal Affairs of the Russian Federation, FMS of Russia N 338/97 of April 30, 2009. The need for annual inspections is established by Order of the Federal Migration Service of Russia No. 1, Order of the Ministry of Health and Social Development of the Russian Federation No. 4, as well as in accordance with Order of the Ministry of Transport No. 1 and the State Fisheries Committee of Russia No. 2 of January 11, 2008. The inspection begins on the day the order to conduct it is issued, the standard form of which is approved by the Order of the Ministry Economic Development Russia No. 141 of April 30, 2009.
Types and timing of inspections by the Migration Service
Inspections by the Migration Service can be documentary and on-site, as well as scheduled and unscheduled.
Documentary check by the FMS
The reason for conducting a documentary check is:
- 1.
Receipt by the Migration Service of information about possible violations of the current migration legislation of the Russian Federation;
- 2.
The presence of signs of an administrative offense in the available information.
Typically, a documentary inspection by the Federal Migration Service is carried out on the basis of documents received both from the organization being inspected and from other sources, without inspectors visiting the site being inspected. As a rule, the period of a documentary inspection cannot exceed one month, except in cases where its period is extended for another month by the official who appointed the inspection. Documentary verification includes the following stages:
- 1.
Making a request for representation necessary documents and information addressed to the audited organization;
- 2.
Sending requests to other organizations and authorities for the provision of additional information and documents related to the activities of the inspected legal entity or individual entrepreneur;
- 3.
Analysis of the information received;
- 4.
Drawing up a report and familiarizing the inspected organization with it.
On-site inspection by the FMS
On-site inspection by the FMS can be either planned or unscheduled, however, in most cases, on-site inspections are carried out according to plan based on information from the Migration Service about the presence of foreigners on the organization’s staff.
The inspection plan is approved by the head of the territorial division of the FMS.
As a rule, a scheduled inspection is carried out after three years from the date of:
- 2.
Completion of the last scheduled inspection of the Migration Service;
- 3.
Start of business activities in accordance with the submitted notice of commencement of business activities.
The FMS has the right to conduct unscheduled on-site inspections if it has information about violations of the current migration legislation of the Russian Federation. The decision to conduct an unscheduled inspection is made by the head of the territorial division of the migration service or his deputy. By general rule The period for an unscheduled inspection is up to 7 days, but can be extended for another 7 days. The check will be legal if, before it begins, the migration service inspectors present the following documents:
- 1.
The original order to conduct the inspection together with its copy, which is handed to the head of the inspected legal entity or individual entrepreneur on the day of departure to the inspected facility with a receipt stamp;
- 2.
Service ID of a migration service employee.
In addition, even before the start of the inspection, representatives of the organization being inspected must be familiarized, against receipt, with the procedure for conducting the inspection, as well as with their rights and obligations.
What the FMS checks
During the inspection, FMS employees have the right to check any foreign citizen or stateless persons located on the territory of the organization. They must have the following documents with them:
- 1.
Passport or other identification document;
- 2.
Migration card and residence permit (as an option, temporary stay in Russia)
- 3.
A document confirming migration registration;
- 4.
Employment contract and work permit.
As for employers of legal entities, they must have statutory documents, premises rental agreements, staffing schedules, etc.
In addition to the specified documents, migration service inspectors check:
- 1.
Permission to attract and use foreign labor from the employer, if required;
- 2.
Notification of attracting foreign workers, with the exception of labor from Turkmenistan;
- 3.
Compliance of the number and professional composition of foreign workers with the established quota, as well as compliance with the stated purpose of entry into Russia, the actual work performed or occupation.
Migration service inspectors have the right to carry out the following actions:
- 1.
Conduct an inspection of the territory of the enterprise, including using photography and video, information about which is entered into the final inspection report. If during the inspection an administrative offense was revealed, an independent inspection protocol must be drawn up;
- 2.
Require the audited organization to submit copies of documents in duplicate. When providing the necessary copies of documents, they must be certified by the signature of a representative of the organization and sealed. A transfer and acceptance certificate is drawn up regarding the seizure of certified copies of documents. In the event that copies of documents cannot be submitted within the prescribed period or are missing altogether, the head of the organization is obliged to give written explanations. If an administrative offense is detected, the original documents may be confiscated, only with the preparation of a transfer and acceptance certificate;
- 3.
Request documents and information necessary for verification from other organizations and government bodies;
- 4.
Receive explanations orally.
Registration of the results of the migration service check
Based on the results of the inspection conducted by the migration service, the inspection persons must draw up a report in two copies, the first of which is sent by registered mail with return receipt requested to the representative of the organization, and the second remains in the inspection materials. In the event that a representative of the organization being inspected does not agree with the content of the act, reasoned objections to the act may be sent to the Federal Migration Service of Russia. When conducting an inspection, FMS inspectors have the right to draw up a protocol on an administrative offense if a violation of the current migration legislation of the Russian Federation was discovered. At the same time, in accordance with Article 28.2 of the Code of the Russian Federation on Administrative Offenses, the protocol must contain the following mandatory details:
- 1.
The date and place of its preparation, as well as position and full name. migration service officer;
- 2.
Information about the person against whom the case was initiated;
- 3.
Information from victims and witnesses, if any;
- 4.
Place, time, date of commission and event of the offense;
- 5.
Explanations of the offender, etc.
A protocol on an administrative offense may be considered illegal if it was drawn up and signed by an official of the Federal Migration Service, who is not listed in Order of the Federal Migration Service of Russia No. 137 of June 3, 2008, as a person entitled to draw up and sign this protocol. A copy of the protocol must be delivered against signature to the person in respect of whom it was drawn up. The head of the organization has the right to give explanations about what happened and make comments on the contents of the protocol, which are drawn up in the form of a separate document and attached to the protocol.
If during the FMS inspection violations are identified that are beyond the control of the migration service, then all materials must be sent to the competent departments within ten days or to the police if signs of a criminal offense are found in the identified violation.
