25. The legal status of foreigners

The concept of "foreigner" is used in two ways - the broad and narrow. In a broad sense, "foreigner" - are all those persons who are not nationals of the receiving State, in a narrow - persons who are in the country but have citizenship of another country .

On the basis of the term "foreigner", accepted in modern international legal practice, it includes every person who is not a citizen of the host country. On signs of nationality, foreigners are divided into two categories: foreign citizens and stateless persons.

In the international legal documents which directly or indirectly affect the legal status of foreigners, aren't given a definition of "foreigner". In 1972, with the beginning of the draft declaration of legal status of persons who are not nationals of the receiving state, an attempt was made to formulate the concept of "non-citizen", which was later replaced by the concept of "foreigner". In the final version of the official documents of the United Nations: "foreigner" ... means any person who is not a citizen of the state in which he is ". From this definition, it follows that the category of "foreigner" included foreign citizens and persons without citizenship in general and refugees who formally have the citizenship of any state, but actually lost contact with it and the political emigrants who were forced for political reasons to leave their country.

The legal status of foreigners in any country is peculiar. It consists of two parts: the legal status of citizens of their state (or the status of stateless persons in the country of permanent, habitual residence) and the legal status of foreign ownership. A stateless person is determined by the state in whose territory the person resides. Foreign citizens from outside of the state, it retains a legal relationship, the legal status of a citizen of the state, subject to its laws, enjoyed his patronage and protection. At the same time a foreigner (as a foreign citizen or a person of statelessness) falls under the impact of the sovereign authority of the State in which he resides, is, legally speaking, under its jurisdiction must observe the laws and regulations of the host country

The problem of the legal status of a foreigner in the country of residence exists almost 3 thousand years, ever since the first in the history of human civilization state are formed, the population was divided on the territorial principle and there were strangers. But it was solved and can be solved in different ways in different historical epochs, in different socio-economic systems of certain states.

The legal status of foreigners in the country is regulated by national legislation of the host country and norms of international treaties. The host State, establishing the legal regime of foreigners, must act in accordance with the generally recognized principles and norms of international law. The doctrine is not unanimous in determining the types of mode foreigners. Each State establises the legal status of this category of persons . Nevertheless, its legal regulation has similar features, which allow to allocate the legal regime of foreigners. Fundamental definition of determination of legal status of foreigners in any country should have the universally recognized principles and norms of general international law on human rights and freedoms. Generally recognized principles and norms of international law contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights.

Legal regime as a complex phenomenon and the concept includes the principles of regulation of public relations, legal capacity, rights and obligations, in a word, the whole legal status. The essence of the legal regime is that it sets up the dynamics of this status, determines the order and conditions of the acquisition, modification and implementation. Essence of legal regime of foreigners can be defined as the terms and procedure for the acquisition and implementation of the foreigners of their rights and obligations (legal status in general). The most common are three types of regimes of foreigners: a national, MFN (most favored nation treatment) and special.

Under the national regime is understood to mean a legal situation in which the State legal and natural persons of another country shall be accorded the same rights, and they have the same obligations as the natural and legal persons of the first State. In other words, foreigners in the broadest sense of the word equal to the local people. Distribution of foreigners common rules and standards in force in the country for their own legal subjects, - well-known in the practice of international relations legal receive appropriate rules. In connection with the above, the concept of national treatment to foreign nationals is the most objective and legally justified.

MFN (most favored nation treatment )is expressed in granting foreigners such rights or duties of any field, as provided for citizens of any third State who are in this country in the best position. This regim is set, as a rule, on the basis of reciprocity in accordance with the agreement between the states.

Special regime is to provide foreign citizens certain rights and / or assigned to them certain responsibilities that differ from those provided in the art for its own citizens of the State. This mode is characterized by the provision of certain privileges and benefits, as a rule, relations with neighboring countries, for example in the field of cross-border communication. In addition, special privileges have access to soldiers of military units. Special mode can restrict the rights of foreigners. (eg a foreigner in the Republic of Kazakhstan does not have voting rights and can not enter public service).

The legal status of foreigners in the Constitution of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan dated June 19, 1995 "On legal status of foreigners. Foreign citizens in the Republic of Kazakhstan are persons who are not citizens of the Republic of Kazakhstan and have proof of citizenship of another state. Persons who are not citizens of the Republic of Kazakhstan and having no proof of citizenship of another state are recognized stateless. [8]

Kazakhstan's legislation based on the following basic principles of the legal status of foreign citizens:

Firstly, foreign citizens have the same rights and freedoms and bear the same duties as domestic citizens. Thus, the starting point is the principle of national treatment;

Secondly, foreign citizens are equal before the law regardless of origin, social and property status, race or nationality, sex, education, language, attitude to religion, type and nature of occupation or other circumstances;

Thirdly, in relation to citizens of those states in which there are special restrictions on rights and freedoms of Russian citizens may establish reciprocal restrictions;

Fourth, the use of foreign citizens of their rights in the Republic of Kazakhstan shall not prejudice the interests of society and state, the rights and legitimate interests of citizens of the Republic of Kazakhstan and others. Like the rest of the civil turnover, foreigners are required to comply with the laws in force in the Republic of Kazakhstan, including those that determine the order of the subjects of their civil rights.

However, attention is drawn to the existence in this area a number of problems, in particular, the low level of Kazakhstan's participation in multilateral conventions aimed at protecting the social, economic and cultural rights; weak development of the legal base of bilateral relations of Kazakhstan on the issues of working conditions, social security, health care of citizens of Kazakhstan and citizens permanently residing abroad or traveling there to work