MINELRES: Estonia: Amendments to the Aliens' Act came into force

[MINELRES moderator]

Original sender: Andrei Arjupin <andrew@lichr.ee>


On 12 July 2002 the Parliament of Estonia has adopted a set of
amendments to the Aliens Act. The initiator of amendments was the
Government of the Republic.

Among the positive aspects of the amendments it ought to be mentioned
the abolition of an annual immigration quota for applications for
residence permit from spouses and close relatives. While in practice the
immigration quota has not been applied to family members in Estonia
since the end of 2000, the decision of parliamentarians to bring the law
into conformity with the judgment of the State Court of May 2000 needs
to be welcomed. Other positive aspect is granting an opportunity to
submit the application for residence permit inside Estonia for those
foreigners who have settled in Estonia before 1 July 1990 and have
thereafter not left to reside in another country. To some extent this
amendment will simplify the procedure of submission of the application
for residence permit of those persons who live in Estonia without legal
basis (so-called illegals) or who want to restore the status (for
example, members of former military personnel or who forgot to extend
temporary resident permit).

Unfortunately the amendments brought also a number of new concerns.
Featuring adopted amendments as simplifying family reunification
procedure, the Government has simultaneously deprived holders of
temporary resident permits of the right to family reunification. In
accordance with the new version of the Act, only citizens of Estonia and
foreigners with permanent residence permit are entitled to invite
members of their families to settle in Estonia. This rule will affect
about 53 thousand non-citizens residing in Estonia. A huge number of
these non-citizens have been living in Estonia over ten years or were
born there. We should keep in mind that after restoration of
independence non-citizens were not allowed to apply for permanent
residence permits (they were obliged to obtain temporary permits
before). The current requirements for applying permanent residence
permit (for example, sufficient legal income) prevent a part of de-facto
permanent population of Estonia from getting permanent resident status.

In our opinion, the given limitation will definitely cause problems. It
is unclear how the Estonian State will respect the right to
non-interference to family life in e.g. cases when a minor child would
like to join his or her parent living in Estonia with temporary resident
permit or who apply for a resident permit to settle with a new spouse in
Estonia. Children from previous marriages can not be either invited by a
new spouse of their parent (as there is no native relationship) or by
their own parent (as he or she will get only temporary resident permit
during first 5 years of marriage with permanent resident of Estonia).
This amendment does not give also former military personnel and members
of their families an opportunity to invite either spouse or family
members that need care or supervision (according to the Act this
category is not entitled for permanent permits).

Additionally the amendments complicate noticeably the requirements for
applicants to obtain resident status in Estonia. It is now necessary to
present proofs that inviter has registration of his residence as well as
that the premises actually exist. Another amendment makes the procedure
of applying for a resident permit essentially expensive. It is now
required to submit an insurance policy, which will cover all expenses on
medical treatment during the period of validity of residence permit. In
opinion of some experts from insurance companies the price of such a
policy will be quite high and varies from 1150 EEK till 9600 EEK (75-620
EUR). At the same time an applicant never knows if he or she gets a
residence permit. Additionally poor applicants will be forced to apply
repeatedly for a residence permits with short terms of validity. As a
result expenses on State fees will soar (to the moment 2500 EEK (160
EUR) outside the country and 750 EEK (48 EUR) inside). The requirement
about presence of an insurance policy is set out also for extending of
residence permit by those foreigners who have received it on a basis of
marriage.

The amendments widened legal grounds for rejecting residence permit
applications. There was introduced a notion "reasonability" of
application, which became a requirement for granting temporary residence
permit. Failing to meet this requirement is the reason for the refusal
to issue a residence permit. Thus, the application is not reasonable if
an inviting spouse has a possibility to settle in a country of
citizenship/permanent residence of an applicant, or if there is a
possibility for spouses to settle in a third country. The Act sets out
differential treatment of inviting persons based on their citizenship
status. A presumption of "groundlessness of the application" is used
towards non-Estonian citizens inviting a spouse to Estonia (Article 12�
sections 5 and 7 of the Aliens Act). Thus, only inviting non-Estonian
citizens are obliged to prove that their family lacks a possibility to
settle in a country of residence (citizenship) of an applicant or in a
country of citizenship of both spouses. Spouses of Estonian citizens are
not covered by such a presumption. We must consider that non-Estonian
citizens make up 20% of all Estonian population (including stateless
residents that make up 12.4%).

Another innovation of the Act introduces the principle of "primary
consideration of the child's interest" during examination of his or her
application for residence permit. However, implementation of this
principle in the Aliens Act is of unclear and even infringing
character.  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" (see article 12� section 2 of the Aliens Act). Such an
understanding presupposes that refusal in granting residence permit to a
child may become a rule rather that exception.

>From the child 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 Citizenship and
Migration Board may limit the right of family reunification under the
pretext of child's protection. One may decide the real implementation of
the given principle may actually meet improper goal.

Andrei Arjupin
Head of the Legal Aid Department
The Legal Information Centre for Human Rights
Nunne 2, 10133, Tallinn, Estonia
tel: (+372) 64 64 270
tel: (+372) 51 31 156
fax: (+372) 64 64 272
e-mail: andrew@lichr.ee
Internet: http://www.lichr.ee/