MINELRES: Estonia toughens immigration legislation

[MINELRES moderator]

Original sender: Vladimir Vasjura <centre@lichr.ee>


Estonia toughens immigration legislation

On July 12, 2002 the Estonian Parliament has adopted the amendments to
the Law on Aliens. The law will come into force on October 1, 2002. An
initiator of amendments was the Government of the Republic.

The amendments touch upon a question of family reunification in the
territory of Estonia and focus mostly on the issue of granting
temporary residence permits for a settlement with spouses or close
relatives residing in Estonia. At the same time, the amendments
establish the basis for officials' arbitrary decision-making in this
field. After the amended Law on Aliens "reasonable application" will
be used as a tool to prevent arrival of undesirable immigrants. This
"reasonability" becomes a requirement for granting temporary residence
permit. Simultaneously it may be the reason for the refusal. New
provisions of the Law did not elaborate the notion "groundlessness",
specifying only that a possibility to settle in the country of
citizenship/permanent residence of the applicant, or a possibility for
the spouses to settle in a third country may prove "groundlessness of
the application".

The new provisions of the Law on Aliens set out differential treatment
of host persons based on their citizenship status. A presumption of
"groundlessness of the application" will be used towards Estonian
non-citizens inviting persons to Estonia. Pursuant to the new
provisions, a residence permit shall not be issued to an applicant, if
he/she does not prove that their family lacks a possibility to settle
in the country of residence (citizenship) of an applicant or in the
country of citizenship of both spouses. Spouses of Estonian citizens
are not covered by such a presumption.

The restriction of rights of Estonian non-citizens realizes also in
narrowing the circle of persons, who have the right to apply for a
temporary residence permit. A host non-citizen should hold permanent
residence permit and reside in Estonia at least 5 years. The same rule
applies to applicants, who intend to settle with a close relative.
Thus, aliens who stay in Estonia on the basis of temporary residence
permits are deprived from the right to family reunification in the
territory of Estonia after October 1, 2002.

The amendments have also complicated general procedure for family
reunion. They introduced the requirements of residence registration
(which is a well-known in the former USSR "propiska") and of living
premises. An immigrant is obliged to have a medical insurance that
should be valid during the whole period of temporary residence permit.

Generally, the principle of "primary consideration of the child's
interest" is applicable in cases of issuing residence permit to
minors. However, this principle is hardly respected in the amendments.
The consideration of interests of a child is understood as the right
to refuse resettlement to Estonia if it "injures his/her rights and
interests and his/her legal, economic or social status can worsen".
Such understanding presupposes that refusal in granting residence
permit to a child may become a rule rather that exception. The
amendments foresee that the right of reunification can be limited
strictly in compliance with interests of the child. However, from the
child's interests' perspective it is disputable that narrowing of
child's legal status can always be regarded as more important than
family reunification and should consequently be a reason for refusal
in issuing of a resident permit for such a child. Hence the State
institutions may limit the right of family reunification under the
pretext of child's protection. In this sense, the real implementation
of the principle of "primary consideration of the child's interests"
meets the same improper goal as introduction of the principle of
"reasonableness of the application" for spouses.

Vladimir Vasjura
Volunteer
The Legal Information Centre for Human Rights