The Institute of Temporary Asylum: Issues of Regulatory Regulation and Law Enforcement Practice

The subject of this study is the institution of temporary asylum in the Russian Federation as an element of the national asylum system. In particular, the study analyses the legal basis for granting temporary asylum, as set out in the Federal «Law On Refugees» and subordinate legislation issued by the Russian Ministry of Internal Affairs, the practice of their application by both the administrative bodies of the Russian Ministry of Internal Affairs and the courts, as well as the nature and limits of the Ministry’s discretionary powers when assessing «humanitarian grounds» as an independent basis for granting asylum. A separate section of the study is devoted to an analysis of the draft bill «On the Granting of Asylum on the Territory of the Russian Federation» currently under development, as well as an analysis of the draft bill «On the Granting of Asylum in the Russian Federation» from the perspective of whether it addresses the systemic shortcomings identified in the current regulatory framework, as well as the issues concerning the standard and allocation of the burden of proof for humanitarian grounds in law enforcement practice. The study employs formal-legal, comparative-legal and systemic approaches. The empirical basis consists of legislative acts issued by state authorities, a ruling of the Constitutional Court of the Russian Federation, appeal rulings by courts of general jurisdiction, and judgments of the European Court of Human Rights in the cases of «Garabaev v. Russia» and «Iskandarov v. Russia». From a comparative law perspective, EU Directive 2001/55/EC is examined. The originality of this study lies in several aspects. Firstly, in Russian legal doctrine, the institution of temporary asylum is considered within the general context of the legal status of refugees and internally displaced persons, whereas the humanitarian grounds for granting it, as a separate legal category, have not been analysed—a point highlighted in this study. Secondly, the study compares the national model for granting asylum with international standards, which has made it possible to identify specific structural discrepancies between Russian regulations and the Russian Federation’s international obligations. Thirdly, the study was carried out in the context of the current legislative reform, namely the draft federal law being prepared by the Russian Ministry of Internal Affairs «On the Granting of Asylum on the Territory of the Russian Federation», which is examined, amongst other things, from the perspective of the need to supplement it with new provisions. This lends the study not only theoretical but also directly practical significance.