MINELRES: Estonia: new attempt to fight with the problem of "illegal residents"

[MINELRES moderator]

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


On 1st March 2003, a list of amendments to the Law on Obligation to
Leave and Prohibition on Entry (further - LOL) came into force. The law
regulates order and procedure of deportation of persons, who have no
legal basis for residing in Estonia as well as conditions of detention
of those aliens, who stay in the country illegally (without any legal
basis).

The purpose of the new law was called by the need to make the procedure
of deportation of illegal residents of Estonia more efficient. Since
enactment of the LOL, it is already the second serious attempt to
resolve the problem of "illegals" in Estonia. This problem resulted from
the adoption of the new legislation concerning aliens in 1993-1996 in
Estonia, and particularly the Law on Aliens (further - LA). The Law on
Aliens excluded a number of residents of the country from the scope of
its legal regulation, depriving members of this group from 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. The recent report of
the Citizenship and Migration Board says the number is about 4 000
people. At the same time many local experts consider the number of
illegals to be much bigger and even enumerate as much as 15 to 25
thousand people. Among illegals are children, elderly and handicapped
persons. According to the official information, only about 30 persons
are expelled from Estonia each year.

The brief overview of the amendments raises concerns about the
conformity of amendments to the essential human rights standards. For
example, the amendments terminated the system of judicial control over
the deportation of foreigners from the country that was in use since the
beginning of 90-s. Now the decision to expel a person from the country
can be issued by low-rang officers of the Citizenship and Migration
Board, the Police or the Board of Border Guard and the deportation shall
be executed within 48 hours. The expelled person shall be refused to
entry Estonia within a period of 10 years, which seems to be extremely
unreasonable.

Moreover, some groups of illegals are denied the possibility to access
justice; the amendments set out that appropriate groups of illegals,
shall be expelled without prescription to leave the country or a
decision of a judge. Thus the illegals are not allowed to submit the
reasons against their expulsion and to have their case reviewed and to
be represented for this purpose before the competent authority (court).
Very disappointing and troubling is the provision, where is envisaged
possibility to deport inmates of prisons after their release directly
from the prison abroad. This stipulation has to be seen in connection
with the circumstance that the prisoners are in Estonia predominantly
illegally 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 also gives the possibility for
disreputable officials to use this provision for dirty purposes, as the
objective court control is excluded by the amendments.

The LOL foresees an issuance of prescription to leave the country within
7 days for the broad range of "illegals" including those, who have close
family ties with Estonia. There is a large 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 the close connections with Estonia or enjoy family life or
belongs to stateless persons. For example, there are many cases of
"illegals", who came to Estonia before 1990, 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 and as a result they
could not apply for a residence permit during the overall state campaign
on legalization of non-Estonian citizens in 1994-1995. 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, which do not have a
permanent residence permit; mothers or fathers of under-aged children,
who live with their partners together, but not in a formal marriage;
etc. Thus the listed above foreigners can be eventually deported,
although they lacks the country, which would 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 (former
Soviet Union).

Furthermore, the prescription to leave the country can be now issued
without participation of a deportee. The authorities shall send the
prescription by mail to the address, where a deportee might be, and it
will be sufficient to consider that the person is aware about the
decision. After seven days since the adoption of the prescription, such
a prescription shall be forcibly executed by the police.

Everyone knows that the lack of funds very often is the only reason that
prevents an illegal to legalize his status and to apply for a residence
permit. Majority of "illegals" face with serious problem to pay even
state tax for proceeding of application for a residence permit (750
Estonian crones) or for issuance of a residence permit (350 Estonian
crones). One can predict that such a circumstance will definitely
provide a good ground for increasing the level of criminality in
Estonia.

Very dubious is the establishment of a requirement (obligation to
assist) towards a deportee and his or her representative (attorney) to
provide all information and assistance for execution of deportation. It
means that a representative should assist authorities to expel a person
instead of providing him the legal aid.

There are also many critics concerning the conditions of detention of
illegals in a deportation center. In fact it is quite difficult to
distinguish the given conditions from the rules applied in ordinary
prisons. The authorities of the deportation center shall withdraw from
deportees their personal money, documents and possessions until a
deportation will not be executed. The placed in the center deportees are
not entitled to a free legal aid and interpretation services.
Considering the general low level of income among deportees, the lack of
legal aid and interpretation will almost exclude a possibility to appeal
alleged arbitrary decisions and activities of the immigration
authorities and officers. Meetings between the deportee and his
representative shall be conducted only under visual control of the
deportation center stuff. All correspondence of the deportee should be
opened and checked before sending. The expenses for correspondence,
phone calls etc are to be paid by the deportee. The right to use mail
and telephone services can be denied, in case it may hinder the
execution of deportation for the given person.

Finally, the serious concern calls the increase of charges (up to 18 000
crones) for providing housing or accommodation for illegals. The result
will be growth of homeless persons and severe violation of essential
humanitarian principles. It is necessary to note that since the
beginning of this year there is a double increase in the number of
homeless persons who died in the streets of Tallinn (the capital of
Estonia, where live 1/3 of the total population).

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 that consisted in the fact that rather numerous
number of administrative decisions related to deportation or refusal to
issue residence permit were contrary to the law and/or to the
Constitution for the last five years and that the functioning court
system judged frequently in the favour 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 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.


Andrei Arjupin
Head of the Legal Aid Department
The Legal Informational Centre for Human Rights
Estonia