Unscheduled check UFMS. Verification of the activities of the enterprise features of the verification of the Federal Migration Service
With the tightening of control over labor migration and the strengthening of administrative responsibility for the illegal labor activity of foreign citizens, visits by employees of the Federal Migration Service of the Russian Federation (FMS of the Russian Federation), as a rule, do not bode well. Sometimes it comes to absurd cases (see ext. Material). In this regard, it is not at all superfluous to know the working procedure of the FMS during inspections.
Normative base
Almost a year ago, on June 28, 2009, the Administrative Regulation on the execution of the state function of control and supervision over the compliance with the provisions of the migration legislation of the Russian Federation by foreign citizens and stateless persons and the observance of the rules for attracting foreign workers in the Russian Federation and using them Labor (hereinafter - Administrative Regulations).
The above document clarified the activities of the FMS during inspections. However, a number of provisions of the regulations contradict the Federal Law N 294-FZ of December 26, 2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control" (hereinafter - the Federal Law) despite the fact that among others it refers to this regulatory act, which allegedly guided the Ministry of Internal Affairs of the Russian Federation in preparing the regulations.
In particular, in the regulations there is no obligation of the Federal Migration Service when conducting field inspections to notify the inspected person of their visit at least 24 hours in advance. In this case, the Federal Law has greater legal force than the Administrative Regulations, and this fact may have a decisive role in appealing the results of the audit.
It is worth remembering that the Federal Law regulates relations only between the state and business entities (legal entities and individual entrepreneurs). Relationships between citizens and the state during inspections are regulated by the Administrative Regulations.
The objects of checks arephysical persons, legal entities, individual entrepreneurs, as well as vehicles, including transport routes of international directions of automobile, railway, sea, river, air transport, and place of stay (residence) of foreign citizens.
Subject to checks first and foremost is compliance with the law governing the procedure for attracting foreign workers and stateless persons to work. The verification of compliance with the procedure for the 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, the inspectors have more arguments when dealing with negligent employers.
Types of checks
Checks may be plannedwhich nthey are held no more than once every 3 years according to a previously approved plan and coordination with the prosecutor's office. Administrative regulations also imply unscheduled inspections, however, it should be borne in mind that in respect of legal entities and individual entrepreneurs they can be carried out only in two cases:
- expiration of the execution of the previously issued order;
- order of the head of the FMS, 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 outbound. When documenting the FMS is limited to the requirement to provide a specific set of documents. The field audit promises more trouble, as it is connected with the visit of FMS officers and, accordingly, more detailed verification.
Inspection Procedure
Any inspection is carried out on the basis of the order of the head of the territorial division of the FMS. The order to conduct an audit must contain the following mandatory details (clause 31 of the Administrative Regulations):
- name of the state control (supervision) body;
- Name, position of persons authorized to conduct the inspection, as well as experts, representatives of expert organizations involved in the inspection;
- object of verification;
- goals, objectives, subject of verification and the date of its implementation;
- the number and date of the order for the inspection;
- the legal basis for the inspection;
- list of administrative regulations for the implementation of control measures (supervision);
- the list of documents whose submission by a legal entity, an individual entrepreneur is necessary to achieve the goals and objectives of the audit (indicated during the audit in relation to the legal entity or the individual entrepreneur);
- dates of commencement and completion of the inspection.
Consider in detail the conduct of an on-site inspection. According to paragraph 37 of the Administrative Regulations, it should include the following actions:
- departure to the address of the location (activity) of the inspected object;
- announcement of the inspection order;
- presentation of a business ID;
- delivery of a copy of the order to conduct an inspection to a legal representative of the inspected object;
- familiarization of representatives of the inspected object with their rights and obligations during the inspection;
- inspection of the territory and establishment of the fact of foreign citizens on the territory of the inspected object, verification of their compliance with the provisions of the RF migration legislation, including the determination of the legality of their stay and the activities they perform. On the inspection of the territory, an entry is made in the final inspection report.
During the inspection can be used photo and video. In the case of an administrative offense during an inspection for the purpose of recording evidence, an inspection report is drawn up in the established manner. In the case of a protocol on an administrative offense, an entry is made in the inspection report;
- the study of documents, information and information obtained during the inspection and requested on the inspected object;
- transfer of requests for additional information or information, which is objectively necessary for the preparation of time, in the manner prescribed Administrative regulations;
- examination of documents submitted upon request;
- comparison of the originals of the requested documents with their copies and the signing of acts of acceptance and transfer of copies of documents to be attached to the verification materials;
- request (verbal) from the representative of the object to be inspected and receiving oral explanations as necessary;
- as necessary, requests from officials of the inspected object, other organizations and public authorities for additional documents and information;
- recording, in the established manner, the revealed 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 officers do not consider it necessary to clarify the rights of the inspection participants to their rights and obligations, or prefer to detain persons suspected of violating immigration laws first, and then explain the purpose of the visit. Unfortunately, violation of the established sequence 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, when checking, foreign citizens or stateless persons are identified, and their legality of being in the territory of the Russian Federation is checked. If they were caught at work, then the legality of their work activity, as well as the authority of the inspected object to attract foreign work force.
At the end of the inspection, an act is drawn up, and, in the case of the discovery of the composition of an administrative offense in the field of migration legislation of the Russian Federation, a protocol on an administrative offense. Persons detained during the inspection are sent to a special detention center to wait for their fate before the trial. We strongly recommend that employers prepare notarized powers of attorney to represent interests in court from particularly valuable employees, if there is a risk of their detention. Otherwise, it will be practically impossible to take part in the defense, as workers can be sent directly to the court and there may simply not be enough time to issue a power of attorney.
Administrative responsibility for violation of immigration laws
Please note that the penalty for illegally attracting foreign workers to work follows each attracted employee.
This article is a compilation of the most common questions of our clients and short answers to them.
Every year, an increasing number of entrepreneurs are attracted to the work of foreign citizens, which becomes a reason for the inspection bodies to once again pay a visit and make sure that the employer does not violate migration requirements. We will tell you about the types of inspections by the FMS, the grounds, the procedure for conducting them and the procedure for appealing the results of an inspection.
Inspections of compliance with the requirements of migration legislation are carried out in respect of entrepreneurs and organizations that use the work of foreign citizens, provide place of residence for foreign citizens and provide other services to them. Such checks can be carried out by the Federal Migration Service or the prosecutor's office. In this article we will talk about the procedure for conducting inspections by the migration service.
1. Types of checks FMS: planned and unscheduled.
In accordance with the law, migration authorities are entitled to conduct scheduled and unscheduled inspections of entrepreneurs. Scheduled inspections of the FMS are carried out no more than once every three years on the basis of an order of the head of the territorial office of the migration service or his deputy. Scheduled inspections by the FMS will be mandatory for inclusion in the annual inspection plan for entrepreneurs, which is published in the public domain on the website of the Prosecutor General's Office of the Russian Federation. The term of the scheduled inspection can not exceed 20 working days.
The reason for carrying out an unscheduled inspection by the FMS is the receipt by the migration authority of information about a possible violation by the entrepreneur of the requirements of migration legislation, the expiration of the execution of the prescription issued earlier by the migration authority, the requirement of the prosecutor, etc. The order is also issued by the head of the migration authority. An unscheduled inspection is subject to mandatory coordination with the prosecutor's office.
Scheduled and unscheduled inspections of the MBF can be carried out in the form of documentary and (or) on-site inspection.
2. FMS checks: date.
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. Check FMS: order to conduct an inspection.
Scheduled and unscheduled inspection of the FMS is carried out on the basis of an order to conduct an inspection. As already mentioned, the authority to issue orders has the head (deputy head) of the territorial divisions of the migration service.
The order for the inspection shall indicate:
- Name of the unit of the migration authority.
- Full name, position, rank of FMS inspectors authorized to conduct an inspection.
- the person in respect of which the inspection is carried out.
- the date of the inspection, the date of the beginning and end of the inspection, the number of hours.
- information on the coordination of the inspection with the prosecutor's office.
- grounds for the inspection, laws regulating the procedure for its conduct.
4. FMS checks: notifying the entrepreneur of the check.
The entrepreneur is notified of the start of the scheduled inspection by the FMS for 3 days, and for unscheduled 24 hours before the start of the inspection. If an unscheduled inspection is carried out on the basis of information received about possible harm to life and health of citizens, plants, the environment, cultural monuments, prior notice to the entrepreneur about checking the FMS is not allowed.
5. Check FMS: what is checked?
The FMS inspector specified in the inspection order is entitled to check the documents confirming the right to foreign citizen carry out labor activities, receive explanations from employees, require the provision of internal documents of the organization (charter, staffing, job descriptions, etc.), inspect premises, request other information for verification purposes.
Inspection of premises, removal of documents, sampling and samples, must be documented in accordance with the 27th chapter of the Code on Administrative Offenses of the Russian Federation, as otherwise they lose their probative value.
6. Check FMS: the rights of the entrepreneur.
In accordance with the law, an entrepreneur is entitled to:
- be present during the inspection, inspection and inspection of premises.
- give explanations on all issues arising during the audit.
- get acquainted with the materials of verification.
- receive information from the migration authority regarding the subject matter of the inspection.
- Appeal against the results of the audit, as well as the actions of officials of the migration authority.
7. Check FMS: registration results.
The results of the inspection of the FMS are drawn up by an inspection report. The act of verification is drawn up immediately upon its 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 it is drafted or sent to his address by registered mail.
The inspection report of the FMS shall include: the date, place and time of its compilation, full name, position, title of the inspectors, the reasons for conducting the inspection, the timing of the inspection, as well as the violations identified during the inspection.
8. Check FMS: response to violations.
In accordance with the law, when violations are discovered during an inspection, the migration authority has the right to: initiate an administrative offense case, issue an order, send information about violations to the authorized body.
9. Check FMS: appeal results.
Article 20 of the Law on the Protection of the Rights of Entrepreneurs states that the results of an inspection conducted with gross violations may be deemed invalid by a court upon the application of an entrepreneur. The law refers to gross violations: the unaware entrepreneur of the beginning of the inspection, the exceeding of the terms of the inspection, non-delivery of the inspection report, involvement of non-accredited experts to the inspection.
To recognize the results of the FMS verification as invalid, it is necessary to submit an application to the arbitration court.
"Personnel. Personnel record keeping", 2010, N 4
For you to check - FMS!
This article addresses the issue of 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 it is not necessary to "nightmare business." As a result, a new Federal Law dated December 26, 2008 No. 294-ФЗ “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control” was issued (as amended on December 27, 2009, hereinafter - the Law on Protection during Inspections ), designed to protect entrepreneurs during inspections by government agencies. This Law established that inspections of entrepreneurs should be conducted 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 FMS of Russia also did not take long to wait and issued Administrative Regulations (Order of the Ministry of Internal Affairs of Russia, FMS of Russia dated April 30, 2009 No. 338/97 "On Approval of Administrative Regulations on the Execution of the State Control and Supervision Function for Compliance with Migration Legislation Russian Federation foreign citizens and stateless persons and for compliance with the rules for attracting employers, customers of works (services) of foreign workers to the Russian Federation and using 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 during 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 the Decree of the President of the Russian Federation of July 19, 2004 N 928 “Questions of the Federal Migration Service”, as amended on October 31, 2009) (hereinafter referred to as the Regulations).
Within the competence
So why be afraid of an employer who has a work permit and a permit to attract and use foreign employees for working foreigners? In addition to the availability of these documents, the employer needs to keep in mind other points that we will consider in more detail.
It follows from the Statute that the FMS cannot conduct operational search activities, therefore, during an inspection, its officers usually come with police officers who have this right.
In addition to the employees of the Ministry of Internal Affairs, employees of the state labor inspectorate can be involved in the inspection. In this case, the inspection will already be called joint, and the employees of both structures will act on the basis of the Order of Rostrud N 40, FMS of Russia N 66 of 03.04.2007 "On Approving the Regulations of the Federal Service on Labor and Employment and the Federal Migration Service and their territorial bodies on the implementation of measures to control (supervise) the labor activities of foreign workers in the Russian Federation and. " The grounds for such events are the joint inspection plan and the order (order) issued on its basis, signed by the authorized leaders of both structures. At the same time, the date of the beginning and end of the audit must be indicated at the disposal.
Employees of the state labor inspectorate find out in the course of the inspection whether the labor contracts and working conditions of foreign workers comply with Russian legislation.
Inspectors are not allowed to be interested in information and circumstances beyond the competence of the FMS and the state labor inspectorate.
The employer should keep in mind that it is prohibited for inspectors to be interested in information and circumstances that are not within the competence of the FMS and the state labor inspectorate, as well as to disseminate information obtained as a result of an inspection, except as provided for under Russian law.
Such inspections, as well as other inspections of regulatory bodies, can be of two types: scheduled and unscheduled. The plan for conducting inspections includes employers who have notified the FMS of the recruitment of foreign workers, and unscheduled inspections are carried out on the basis of data received by the FMS on violations of immigration laws. Supervisory authorities should inform about the scheduled inspection in advance - three days before the planned visit to the company, send a registered letter with notification.
The inspection plan is approved by the head of the territorial division of the FMS. It contains the legal and actual addresses of the objects to be checked, the time of the event and the data of the employees who will conduct it. If, on the other hand, the FMS received information on violations of immigration laws, then the FMS staff can check the employer who was not included in the plan (clause 22.1.1 of the Regulations). And the decision about this is right to take not only the head of the territorial body of the FMS, but also his deputy or the head of the structural unit, for example, the head of the local department of the Federal Migration Service. At the same time, the new Law on the Protection of the Rights of Legal Entities obliged the overseers to coordinate inspections with the prosecution authorities (paragraphs 6.1 - 6.4 of article 9 of the Law on Protection during inspections).
The decision to conduct an inspection should be documented in the form of an order to conduct an inspection of a specific employer, in which, in addition to the company name, its actual and legal address, the following should be indicated: the place and purpose of the audit, the time period for it, the list of documents that must be submitted to the auditor , as well as data from the FMS staff and experts involved in the audit, who will participate in the verification (clause 31 of the Regulations).
Like any other representative of inspection agencies, an officer of the Federal Migration Service is obliged to introduce himself, present a certificate of employment, the original order to conduct an inspection and hand him a copy to the head of the organization or to the person replacing him, as well as familiarize the representatives of the inspected object with their rights and duties (clause 37 of ).
It is important to remember that if the FMS officers came without an order or if other inspectors are indicated in it, the inspection will be considered illegal. In this case, such inspectors can safely not be allowed into the room. If they show perseverance or have already reached the territory of the enterprise, there is no need to show them any documents - the results of such a test can always be appealed in court.
From judicial practice. If you failed to prove to the FMS that different positions in the work permit and employment contract, staffing are not a violation of Part 1 of Art. 18.15 Code of Administrative Offenses, you can apply to the court to cancel the decision on this issue. Some entrepreneurs have been successful. We want to draw the attention of readers that the Resolution of the FAS of the North-West District of October 8, 2009 on Case No. А56-14212/2009 recognized such cancellation as justified.
As follows from the case file, the Office of the Federal Migration Service in St. Petersburg and the Leningrad Region (hereinafter referred to as the Department) carried out an audit of Mirzaliyev E.O.’s compliance with the requirements of the Law on legal status foreigners, during which it was revealed that Mirzaliyev E.O. attracted to work the foreign citizen Mirzaliyev Ayaz Oktyabr ogly, who had permission to work in the series 78 N 090392673 in the form of activity "ancillary worker", who actually carried out the work of a shoe repairman.
According to the results of the inspection, the Department drew up a protocol dated February 18, 2009 No. 0000469 on the administrative violation committed by Mirzaliyev E.O. O., for which part 1 of Art. 18.15 Code of Administrative Offenses of the Russian Federation, and a decision was made to prosecute Mirzaliyev E.O. accountable for the punishment of a fine of 250,000 rubles.
Part 1 of Art. 18.15 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 this case, the court established and the case file confirms that citizen of the Republic of Azerbaijan Mirzaliyev Ayaz Oktyabr ogly arrived in the Russian Federation in an order not requiring a visa, has a work permit on the territory of St. Petersburg of series 78 N 090392673, the permitted type of activity is “ancillary working". Consequently, his involvement by Mirzaliev E.O. to work activities in a specialty not specified in the permit does not constitute the objective side of an administrative offense, the responsibility for which is provided for under Part 1 of Art. 18.15 Administrative Code.
The individual entrepreneur Mirzaliev Elman Oktyabr oglu appealed to the Arbitration Court of St. Petersburg and the Leningrad Region with a statement about the repeal of the resolution of the Office of February 26, 2009 No. 000469 to prosecute him for committing an administrative offense under Part 1 of Art. 18.15 Administrative Code.
By a court decision of 04/16/2009, left unchanged By a decision of the Thirteenth Arbitration Court of Appeal on 07/01/2009, the stated requirements were met. The legality of the decisions and decisions of the courts was checked in cassation. The decision and decision of the courts comply with the norms of substantive and procedural law and there are no grounds for their cancellation.
What do supervisors check?
First of all, all foreign citizens and stateless persons on the checked object are subject to verification, or rather their documents, which are checked by the FMS staff for their presence and authenticity. These include: an identity document, migration card, documents confirming the migration registration of a foreign citizen or stateless person (notification), valid visa (if a citizen from a "visa" country), a residence permit or temporary residence permit, if any. Also, employees are sure to 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 territory of the employer. And if there is a foreigner on it 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 check whether a foreigner works in the position specified in his work permit. If they do not match, inspectors may consider this a violation of the procedure for admission to work and fined for it, as for violation of labor laws. A weak consolation for the employer will be the fact that not a single document regulating the work of foreigners in Russia explicitly states that the positions must coincide. But in paragraph 1 of Art. 13 of the Federal Law of July 25, 2002 N 115-ФЗ “On the Legal Status of Foreign Citizens in the Russian Federation” (ed. December 27, 2009, hereinafter - the Law on the Legal Status of Foreigners) enshrines the right of a foreign citizen to freely dispose of his abilities to work and choose a gender activities at its discretion. But, as practice shows, it is impossible to prove to the 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 the event of such a discrepancy, the employer may be liable to a fine.
Usually, the maximum duration of the on-site inspection is 7 days, but it can be extended for another 7 days, and only by the official who appointed it. But verification of documents without leaving the company is carried out in a period of up to one month, with the possibility of renewal for another month (paragraph 15 of the Regulations).
After checking the workers, the turn comes to the employers. Be sure to check: staffing, lease of premises, permission to attract and use foreign workers for "visa-free" foreigners, notice 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 travel for foreign employees is limited - for temporarily staying foreigners the duration of the trip cannot exceed 10 days during the entire period of validity of the work permit (clause "a" p. 1 of the Resolution of the Government of the Russian Federation of February 17, 2010 N 97). The exception is the traveling nature of the work prescribed in the employment contract, then the period is increased to 60 days. Temporarily living foreigners can be on a business trip for up to 40 days during the year, with the traveling nature of work - up to 90 days. If a trip to Russia, then migration card and the notification of the arrival of the foreign worker remains the same. If the employee went abroad, even for one day, then the employer is obliged to notify the FMS about the departure of a foreign citizen, and then upon arrival again to notify the FMS of his arrival.
In the event that the inspector decides to attach any documents to the inspection materials and take them with him, he must draw up an acceptance certificate for these documents signed on both sides.
If the employer refuses to submit the documents, the FMS officer who carries out the inspection prepares a written request (clause 58 of the Regulations). In this case, the verifiers will still achieve that they were given them.
Registration of test results
According to the results of the audit is drawn up act The FMS officer makes it in two copies, signs and registers it, introduces him to the representative of the object being inspected. If necessary, a copy of this act is sent to other interested state bodies.
Note. Content of the inspection report
The inspection report shall include:
Date, time and place of the inspection report;
The name of the structural unit of the inspection body;
The date and number of the order for the inspection;
Surnames, names, patronymic names and positions of the employees who carried out the inspection;
Object of verification;
Date, time, duration and location of the inspection;
Information on the results of the inspection, including the identified violations of immigration laws, their nature and the persons who committed these violations;
Information about familiarization or refusal in acquaintance with the inspection report of an authorized representative of a legal entity who was present during the inspection, as well as information on the entry in the register of inspections of the record of the inspection performed or on the impossibility of making such an entry due to the absence of the specified journal;
Signatures of employees who conducted the check.
Based on the results of the audit, the following types of decisions can be made:
On termination of inspection due to the absence of violations of the Russian migration legislation;
On the appointment of an inspection in relation to another object of inspection, in connection with the receipt during the audit of information on violations of the law by this object;
On the termination of the inspection and the direction of its materials to the prosecution authorities of the Russian Federation, the Ministry of Internal Affairs of Russia, the Ministry of Emergency Situations of Russia, the Ministry of Healthcare and Social Development of Russia, the Federal Security Service 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 evidence of crimes and administrative offenses at the checked object;
On the extension of the inspection period;
On drawing up a protocol on an administrative offense or initiation of an administrative violation case.
All these decisions are made in the form of an order, which is signed by the official who issued the order to conduct the inspection. If it is signed by another employee, the employer may request that it be declared illegal. Interestingly, since 2007, the FMS is not obliged to refer a case to court, but can independently make decisions and punish the guilty.
A representative of an employer who has violated immigration laws has the right to familiarize himself with the inspection report. Also, if you wish to make suggestions, comments and explanations in the form of a separate document attached to the protocol.
After that, the representative of the employer must sign the act of verification. If he does not want to do this, then the FMS officer simply makes an appropriate entry in it - this will not entail any special significance in resolving the case.
Measures of responsibility for employers for violation of immigration laws are given in Table. 1, and what threatens the employee, is set out in Table. 2
Table 1
Employer's administrative responsibility
For violation of immigration laws
|
Violation |
Norm |
A responsibility |
A responsibility |
|
Violation of the rules of migration |
Part 1 |
From 40,000 to |
400,000 to |
|
Failure to submit or |
Part 2 |
From 40,000 to |
400,000 to |
|
Employment |
Part 1 and |
From 25,000 to |
250,000 to |
|
Territorial non-notification |
Part 3 |
35 000 to |
400,000 to |
|
Provided by the administration |
Part 1 |
45,000 to |
450,000 to |
|
Failure to comply with restrictions on |
Part 1 |
45,000 to |
From 800,000 to |
table 2
Administrative and other responsibility
Foreign worker
|
Offense |
Normative |
Type of punishment |
|
Violation of foreign |
Paragraph 9 of Art. 18 |
Deprivation of a work permit |
|
Violation of conditions by the employee |
Point 2 of Art. 32 |
Cancellation of permission for |
|
Implementation of foreign |
Article 18.10 |
Fine in the amount of from 2000 to |
The procedure for appealing the decision of the FMS
If the employer does not agree with the decision of the supervisory authorities, taken on the basis of the audit results, he may appeal the decision in the higher division, which for the FMS employees is the central office of the FMS of Russia, located at the following address: 107078, Moscow, Boyarsky Pereulok, 4 if this does not help, then in the prosecutor's office or in court.
At the same time, it is necessary to remember that the period for appealing against the actions or inactions of the overseers is 3 months from the day when the employer became aware of a violation of his rights. The term for appeal against the decision on bringing to administrative responsibility - 10 days after receipt of this decision. If these deadlines are missed for a good reason, you can file a petition for reinstatement with the reason.
The complaint is made in an arbitrary form, while it indicates:
Address, name of the higher structure, F.I.O. persons who are being addressed. The FMS 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 appealed;
The time and date of the check;
The name of the supervisory authority whose act is being appealed;
Number and date of the act;
Justification of the complaint (detailed description of the situation).
The main thing in drafting a complaint is clear concrete facts, supported by references to legislation. It is good, if copies of documents confirming the requirements are attached to the complaint. It is better to make a complaint in two copies, one must be left to oneself, and the second must be mailed by registered letter with notification or personally taken to the office of the state body. In this case, it is necessary to require that the complaint be registered and put the incoming number on the second copy. The term for consideration of the complaint is a month, and in the case of an appeal against the decision on bringing to administrative responsibility - 10 days.
According to the results of consideration of the complaint can be made:
1) if the actions of the supervisors are appealed:
Full or partial satisfaction of the complaint;
2) in the case of an appeal against a rendered act:
The act is invalid;
Refusal of the complaint;
3) in the case of an appeal against an order of administrative violation:
Change of ordinance;
Refusal to change the order;
Cancel the decision, close the case;
Cancel the decision, a new consideration of the case.
If an appeal to a higher state body did not help, then there is only one road left - to the court. If the application is submitted to the court on behalf of the organization, then it is necessary to apply to the arbitration court, and if on behalf of the citizen or official of the enterprise, then to the district court.
It must be remembered that the terms of the appeal are limited by law: if the 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 on bringing to administrative responsibility is challenged, then the period of appeal is limited to 10 days. Thus, after the enactment of the Law on Protection during inspections, employers began to feel more protected. The main thing is that he introduced this Law: he not only defined the rights of the person being checked, but also established a restriction on the conduct of inspections more often than once every 3 years.
Bibliography
1. Comment to the Code of the Russian Federation on Administrative Offenses (article by article) / Ed. N. G. Salishcheva. 6th ed., Pererab. and add. M .: Prospectus, 2009.
2. Malumov A. Yu. Commentary to the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" (article by article). M .: Yustitsinform, 2007.
V. Resurrection
Referent
1st grade
Signed to print
The Federal Migration Service of Russia is part of the Ministry of Internal Affairs and is engaged in auditing the activities of legal entities and individual entrepreneurs who hire foreign citizens. At the same time, the Migration Service may conduct both its own and joint inspections, for example, with law enforcement officials, the Russian Labor Inspectorate, or with tax inspectors.
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 the Order of the FMS of Russia N 1, the Order of the Ministry of Health and Social Development of the Russian Federation N 4, as well as in accordance with the Order of the Ministry of Transport N 1 and the State Fishery Committee of Russia N 2 of January 11, 2008. The inspection starts on the day the order is issued, the standard form of which was approved by Order No. 141 of the Ministry of Economic Development of Russia dated April 30, 2009.
Types and terms of checks of the Migration Service
Inspections of the Migration Service can be documentary and on-site, as well as scheduled and unscheduled.
FMS documentary check
The reason for the 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 available information signs of an administrative offense.
Usually, a FMS documentary check is carried out on the basis of documents received both from the organization being checked and from other sources, without the inspectors going to the object being checked. As a rule, the term of a documentary check cannot exceed one month except for the cases when its term is extended for another month by the official who appointed the check. Documentary verification includes the following steps:
- 1.
Submit request for submission required documents and information to the organization being audited;
- 2.
Sending inquiries to other organizations and authorities on the submission of additional information and documents related to the activities of the audited legal entity or individual entrepreneur;
- 3.
Analysis of the information received;
- 4.
Drawing up the act and acquaintance with it to the inspected organization.
Field inspection of the FMS
Field inspection of the FMS may be both planned and unscheduled, but in most cases, field checks are carried out according to the plan based on information from the Migration Service on the presence of foreigners in the staff.
The inspection plan is approved by the head of the territorial division of the FMS.
As a rule, scheduled inspection is carried out after three years from the day:
- 2.
The end of the last scheduled inspection of the Migration Service;
- 3.
The start of business activities in accordance with the submitted notice of the start of business activities.
Unplanned on-site inspections The FMS has the right to conduct 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. As a general rule, the term of unscheduled inspection is up to 7 days, but can be extended for another 7 days. The check will be legal if, before it starts, the controllers of the migration service produce the following documents:
- 1.
The original order to conduct an inspection along with its copy, which is handed over to the head of the inspected legal entity or to an individual entrepreneur on the day of departure to the inspected object with a mark of delivery;
- 2.
The service certificate of the employee of the migration service.
In addition, before the start of the inspection, representatives of the organization being inspected should be familiar with the receipt of the inspection procedure, as well as their rights and obligations.
What check FMS
In the course of the inspection, officers of the Federal Migration Service are entitled to inspect any foreign citizen or stateless persons located on the territory of the organization. At the same time they should have with them the following documents:
- 1.
Passport or other identity 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 the employers of legal entities, they must have statutory documents, lease agreements, staffing, etc.
In addition to these documents, the inspectors of the migration service check:
- 1.
Permission for the right to attract and use foreign labor at the employer, if it is necessary;
- 2.
Notification of the recruitment of 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 goal of entering Russia, in fact performed work or occupation.
The inspectors of the migration service are entitled to perform the following actions:
- 1.
To conduct an inspection of the enterprise’s territory, including with the use of photographic and video filming, information about which is entered in the final inspection report. If during the inspection an administrative offense was revealed, an independent inspection report should be drawn up;
- 2.
Expose the inspected organization in duplicate the requirement to submit copies of documents. When providing the necessary copies of documents, they must be certified by the signature of the representative of the organization and sealed. On the withdrawal of certified copies of documents is an act of acceptance. In the event that copies of documents cannot be submitted within the prescribed period or are completely absent, the head of the organization is obliged to provide written explanations. In the case of an administrative offense, it is allowed to seize the original documents, only with the drawing up of the act of transfer and acceptance;
- 3.
Require documents and information necessary for verification in other organizations and government bodies;
- 4.
Receive explanations orally.
Registration of results of check of migratory service
According to the results of the inspection carried out by the migration service, the inspectors must draw up an act in two copies, the first of which is sent by registered letter with acknowledgment of delivery to the representative of the organization, and the second remains in the inspection materials. In the case when the representative of the organization being inspected does not agree with the content of the act, motivated objections to the act may be sent to the body of the FMS of Russia. When conducting an inspection, the 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.
Date and place of its compilation, as well as position and full name immigration 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 recognized as illegal if it was drafted and signed by an officer of the Federal Migration Service, who is not listed in the Order of the Federal Migration Service of Russia No. 137 of June 3, 2008, as a person entitled to prepare and sign this protocol. A copy of the protocol must be handed over under signature to the person in respect of whom it is made. The head of the organization has the right to give explanations about the incident and make comments on the contents of the protocol, which are made out in the form of a separate document and are attached to the protocol.
If during the inspection of the FMS violations that are not controlled by the migration service will be revealed, then all materials should be sent to the competent authorities within ten days or to the police, if signs of a criminal offense are detected in the identified violation.
