Estonia restricts attitudes towards "illegal residents"
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From: MINELRES moderator <[email protected]>
Date: Sat, 21 Jul 2001 16:42:31 +0300 (EEST)
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Subject: Estonia restricts attitudes towards "illegal residents"
From: MINELRES moderator <[email protected]>
Original sender: Andrei Arjupin <[email protected]>
Estonia restricts attitudes towards "illegal residents"
On 26th June 2001, President of the Estonian Republic Mr. Lennart Meri
approved the law amending the Law on Obligation to Leave the Country
and Refusal to Entry (further - LOL). The law regulates the order and
procedure of deportation of persons, who have no legal basis for
residing in Estonia.
According to the authors of the amendments, the purpose of new law was
the need to make more efficient the procedure of deportation of
illegal residents of Estonia. In fact the named amendments are mostly
directed on resolving the current problem of "the illegals" in
Estonia. This problem rose as a result of adoption of new legislation
concerning aliens in 1993-1996, and particularly the Law on Aliens
(further - LA). The named act excluded a number of residents of the
country from the scope of its legal regulation, depriving members of
this group a possibility to apply for a residence permit inside the
country due to absence of a permanent propiska (registration) of the
former Estonian SSR. The total number of so-called "illegals" is still
undefined and the amount varies on different estimations from 30 to 80
thousand people.
The brief overview of the amendments shows that some provisions of the
new law do not correspond to requirements and legal practice of
Estonian legislation. Thus, the appropriate groups of "the illegals"
now will receive a special type prescription to legalize themselves
within 90 days. Section 2 of Article 9 of LOL introduces a kind of a
fine ("compulsory money") for persons, who received a prescription to
legalize, but who has no clear opportunities to realize it. It remains
quite mysterious, how "the illegals" can be forced to pay sums up to
10 000 Estonian crones for a legalization, which does not depend on
them, but on the decision of governmental institutions like the
Citizenship and Migration Board. Moreover, legal practice shows that
there is a need in, at least, one year for an "illegal" resident to
obtain legal basis (a residence permit) in accordance with the
Estonian legislation. Thus, "the illegals" will not fulfill obligation
under prescription and will be forced to pay "compulsory money". It
can be said that the prescription to legalize will become in many
cases a so-called "impossible obligation", as it can be fulfilled
neither by the "illegal" nor by the administration. At least, unless
the CMB officials when implementing should violate the current LA,
which seems to be unbelievable. It is also difficult to imagine, from
what sources an "illegal" would acquire the required sum in case when
he/she has no working permit and no right to work officially in the
country, where the state dole is about 400 Estonian crones. It is well
known that the majority of "the illegals" face serious problem to pay
even state tax for proceeding of application for a residence permit
(350 Estonian crones) or for issuance of a residence permit (500
Estonian crones). One can predict that under such circumstances a new
ground for increasing the level of criminality in Estonia will appear.
Along with it, LOL foresees an issuance of prescriptions to legalize
to a small number of persons - and therefore forces the administration
to issue a prescription to leave the country to a broad range of
"illegals". However, there is a numerous group of "illegals", which do
not meet requirements of the Law on Aliens and therefore has no legal
ground for applying for a residence permit, but who in the same time
still have close connections with Estonia, or enjoy family life here,
or belong to stateless persons. For example, there are many cases of
"illegals", who came before 1990 into Estonia, left shortly in the end
of 80s and the beginning of 90s (e.g. for study purposes) and returned
afterwards to their families, or who could not get or lost their
permanent propiska after 1990 by whatever reason. As a result, they
could not receive a residence permit in 1996-1997. There are many
family members - adult children of parents, who are legal residents in
Estonia and who need constant care; mothers of minors, who legally
reside in Estonia; other farer relatives, who nevertheless live a
family life in Estonia; long time cohabiting partners of the permanent
residents of Estonia; spouses of Estonian residents, for which the
immigration quota is implemented but does not provide enough places,
not suffice because of nationality or pregnancy or lacking common
children; mothers or fathers of under-aged children, who live with
their partners together, but not in a formal marriage; and so on, etc.
Thus the listed above foreigners can be eventually deported, although
often they lack the country which would accept take them, as they are
either stateless or they have no identification documents at all or
they came originally from a country which does not exist anymore (e.g.
Soviet Union). It is necessary to note that the majority of "the
illegals" are stateless, and thus they cannot be expelled under any
circumstances.
Very dubious is the curtailing of the Courts and the limitation of the
access to the Courts: Deportation decisions now simply can be issued
by ordinary CMB officers and executed within 48 hours by the police or
border guards. As a rule, an appeal to the Courts has no suspensive
effect, i.e. the deportee can be deported despite his or her appeal to
the courts, and thus has to proceed his court case from abroad Estonia
- from Moscow, Minsk, Kiev, Helsinki, or St. Petersburg.
Unfortunately, we see here the price, which has to be paid for the
sake of the transformation of the "fortress Europe" rules. The result
is a severe violation of fundamental rule of law principles, like
review of administrative decisions, effective access to the courts,
and the ban on a fulfillment of administrative decisions, if
constitutional values are involved (like constitutional freedoms),
whose value itself do not justify a quick administrative procedure.
It seems to be clear that the Estonian government (who was an
initiator of the amendments) decided to resolve also another problem
of the Estonian authorities. Namely, that consisted in the fact that a
rather numerous number of administrative decisions related to
deportation or refusal to issue a residence permit were contrary to
the law and/or to the constitution for the last five years and that a
functioning court system judged frequently in favor of the plaintiffs.
Thus, the limitation of access to the courts becomes the tool by means
of which the administration will prevent or hinder the independent
control of deportation orders, diminishing for a foreigner the
possibility to obtain legal status in the country. Unfortunately, this
is a grave misunderstanding of the principles of rule of law and must
be seen as a major setback on the way to a normal country, which is
governed by the rule of law.
There is also very troubling provision, where a possibility is
envisaged to deport inmates of prisons, who have no legal status,
within 48 hours after their release directly from the prison abroad
(section 3 of Article 18 of LOL). This stipulation has to be seen in
connection with the circumstance that the prisoners are in Estonia
predominantly illegal and constitute a big group of so-called domestic
illegals. It is quite unacceptable way of wishing to solve the problem
by simply deporting those "illegals" away from the country,
notwithstanding the fact that this people have often no identification
documents at all or are stateless persons. Such a situation opens
doors for arbitrary use by officials, as the objective court control
is excluded by the amendments.
It must be concluded that such amendments are more worth being set
forth in the legislation of a third-world republic than in the state
claiming to become a part of the United Europe. Neglecting the
observance of the rule of law principles might be a forcible argument
for slowing down the process of negotiations between Estonia and the
EU.
Andrei Arjupin
The Legal Information Centre for Human Rights
Tallinn, Estonia
[email protected]
http://www.lichr.ee/
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