New order of migration registration and registration according to the rules of Federal Law No. 163. Migration registration in apartments, cabins and legal entity address. Who is now responsible for the migration registration?
One of the reasons for the amendment 109 of the Federal Law on Migration Registration was the definition of the Constitutional Court, which recognized the concept of the place of residence of a foreign citizen is not clear and confusing and asked the legislature to figure it out. Even Russian lawyers, police officers or personnel officers cannot figure out some concepts of migration registration. And its almost impossible for foreigners who do not know Russian language that well. But they obliged to follow this law.
The legislator made amendments to the law, but this has not yet clarified. Some definitions raise questions:
- Place of residence of a foreign citizen
- A place of residence - residential premises
- The concept of the address of the organization
- Difficult cases with addresses.
Place of residence of a foreign citizen
Now the Federal Law No.109 suggests 2 options for the place of stay:
- - living space that is not a place of residence, or other premises of actual residence
- - at the address of the organization in the case ... and referring to part 2 of article 21.109 of the Federal Law
A place of residence - residential premises.
Let us take the first definition of a place of stay - residential place, which is not a place of residence. It correlates with paragraph 1 of Part 1 of Article 21 (the bases of the migrant registration) of the same Federal Law - a foreigner is subjected to registration at the address of the living place, which is not a place of residence, but in which the foreigner actually lives.
Pay attention to the wording «non-residence place".
The problem is that Article 20 of the Civil Code defines the place of residence as a place of permanent or preferential residence.
And the Federal Law No. 109 says that a foreigner must be registered in a living place that is NOT a place of residence. But in this living space he should actually live.
But if a foreign citizen actually lives in a living space, it will be his place of residence in accordance with the Civil Code. And if such a room is the place of its actual residence, then according to the Federal Law No.109 a foreigner is registered there, because:
“The place of stay of a foreign citizen is a residential space which is NOT a place of residence”.
It looks like a mockery of logic.
Maybe it was worth using the following wording: a place of residence - is a living place that is a temporary place of residence?
Or else they would like to write the clause “non-residence” after the words “other premises”. Then it would turn out also logical:
A place of stay - residential premises or other premises that are not the place of residence....
Unfortunately, 10 million foreign citizens and Russian citizens who rent apartments will soon be drawn into solving this puzzle. As well as employers of foreigners, police officers and courts.
It is possible that several thousand foreign citizens will be expelled, and after a complaint to the Constitutional Court they will again decide to make amendments.
Place of stay at the address of the organization.
The second category of the place of stay in the new version of the Federal Law No. 109 .
No less convoluted wording is used here. Employers will also have to think hard. The reference norm, therefore, it is necessary to read immediately p.4 of p.1 of article 2 and part 2 of article 21 of the Federal Law No. 109 .
It will turn out like this: “the place of stay of a foreign citizen ... .. the organization in which he works, in the case of actual residence at the address of the said organization”.
It seems clear here.
For example, foreign workers may be registered by a large enterprise that operates at the same address, provided there is a designated place for sleeping and rest on its territory.
The second case, when the place of stay will be the address of the organization - accommodation in the premises of the organization that do not have address data. This is primarily temporary construction cabins, amenity premises and other buildings.
But pay attention to the reservation - no address data.
An amenity premise or a temporary construction cabins in general cannot have address data, because the structure is temporary. But not all construction cabins are on the territory without an address.
The territory will not have an address, for example, in the case of a long-term construction of a large residential quarter, until the house is put into operation and the moment when address is assigned.
If the construction company carries out the reconstruction of an existing building and placed cabins for construction personnel on its territory, then such temporary buildings will be located in the territory with the address. In this case, will there be grounds for making a migration registration exactly with the address of the organization as long as the buildings are located on the territory with the address? But the buildings themselves do not have address data.
But since foreigners will actually use these temporary structures for sleep and rest, according to Part 4, Part 4, Art. 109 of the Federal Law, such amenity premises will be the place of stay of foreign personnel and they must be registered.
But if we return to part 2 of article 21 109 of the Federal Law, which defines the basis of migration registration, then we will not find in it the opportunity to put on foreigners living in temporary structures that have
But if we return to part 2 of article 21 109 of the Federal Law, which defines the basis of migration registration, then we will not find in it the opportunity to put foreign staff on migration registration living in temporary buildings with address data. Part 2, Article 21 of the 109 of the Federal Law permits put on the migration registration to the address of the organization when a foreigner lives in the premises that do not have address data.
Presumably, such discrepancies of the provisions of the law will begin, which employers and employees of the Administration for Migration Issues will interpret in different ways.
A vicious circle - non-residential premises is a place of stay, and it is impossible to register with the address of the organization, since amenity premises have an address data.
It turns out that in case of placement (sleep and rest) of foreign personnel on the territory of a construction object with an address, it will be possible to register only if the address of the organization-employer changes to the address of the object being reconstructed.
Because part 2 of article 21 says: a foreign citizen is subject to registration at the address of the specified organization when actually staying at the organization’s premises at this address.
That is, according to this provision, the construction company will have to ask the owner of the territory for the permission for registration at the address of the work of the legal address of the company or its separate division. Or even to transport office there.
And if the construction company won the tender for the reconstruction of the courthouse and plans to place working personnel there for the period of the repair, foreigners will probably have to be abandoned or placed in hotels and create a way to transport staff to working places, because no one will register the address of the organization in the courthouse.
The concept of the address of the organization
Why is everyone talking about registering foreigners in amenity premises?
If you type into the Google engine request "migration records in amenity premises", then Google will find all those who claim that all migrant workers will be registered in amenity premises and trailers. This is claimed by both the media and legal offices.
But the claims of many lawyers that now all foreigners will be registered in amenity premises are not completely true. Rather ,not true at all.
Because the Civil Code under the address of the organization determines the location of the executive body (director), enshrined in the Uniform State Register of Legal Entities.
Based on the logic of the provisions of Part 2 of Article 21 of the Federal Law No.109, a foreign citizen must be registered at the address of the legal entity. And the organization may have one address - the location of the director.
It turns out that when staying in amenity premises without address data, you need to register at the address of the legal entity.
Thus, the migration registration on the legal address of the organization will be remained, but for a small proportion of enterprises.
Difficult cases with addresses.
If a foreigner works in a construction company and works (and lives in a temporary building - an amenity premises) in another region, then he must be registered with the address of the organization.
For example, a production company (acceptance of recyclables) with its head office in St. Petersburg has many separate sites for receiving these recyclable materials both in the city and in the Leningrad region.
Temporary buildings for personnel - trailers are located on the sites. The staff actually lives there.
According to the logic of the provisions of Part 2 of Article 21, foreign personnel must be registered at the address of the organization, that is, the address is St. Petersburg.
But at the same time such foreigners will work and live in the Leningrad region.
The question arises immediately:
first of all, to - and will such a migration registration be recognized by the police and police officers as a fake, provision of knowingly false data or inconsistency of the place of residence to the place of migration registration?
Work in such construction companies with a large number of existing facilities and foreigners in the state will increase.
Well, migration lawyers will also soon be feed up with work.
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