During the reporting year, several important debates in Estonia took place on topics concerning Estonian citizenship, the rights of aliens, but also international declarations on immigration policy. The Chancellor had to assess and consider the lawfulness of the decisions made and the manner and speed of administration by Estonian government agencies.
When resolving petitions submitted to the Chancellor, it was found that the Police and Border Guard Board (PBGB) had made several mistakes in proceedings concerning citizenship. On several occasions, the PBGB violated individuals’ rights by failing to issue new personal identity documents on time or declaring documents invalid before the underlying decision had taken effect.
Optants and their descendants
Considerable public attention was devoted to the issue of citizenship of the so-called optants and their descendants: what is the legal status of people who acquired Estonian citizenship on the basis of the Tartu Peace Treaty but did not return to Estonia in the 1920s? The PBGB had previously recognised the descendants of these people as citizens by birth but later changed its position.
Optation means opting for citizenship (in particular in the event of transfer of territory from one country to another) and settling in the country considered as one’s new homeland. In the context of Estonia, optants are primarily Estonians migrating from Estonia mostly to Russia at the end of the 19th and the beginning of the 20th century who, after Estonia’s independence, obtained the opportunity to accept Estonian citizenship and come to live here. In 1920–1923, some 80 000 Estonians opted for Estonian citizenship but only 37 500 of them actually came to Estonia. For various reasons, more than half of them stayed in Russia and Georgia (Abkhazia). In many cases, the reason was that they could not return or were prevented from returning to Estonia.
The Chancellor made a proposal to the PBGB to continue issuing optants and their descendants with identity documents for Estonian citizens. A legally unclear situation should not be turned against those who have already once been deemed citizens of the Republic of Estonia by birth. When the term of validity of the documents expires, the PBGB need not re-assess the issue. Based on the Constitution and the law, a new document must be issued to these people on expiry the term of validity of the current document. Where people themselves have not tried to mislead the state when applying for citizenship, it is not fair to place them in a worse situation than before only because the PBGB has changed its administrative practice.
Possible political and legal disputes over citizenship and the conditions for having it should take place separately. The Chancellor also indicated that the PBGB must once again assess the issue of citizenship of the descendants of optants as new historical information about this has emerged in the meanwhile.
Erroneously acquired citizenship by birth
The Chancellor had to assess a situation occurring in 2019 where an individual had been declared an Estonian citizen by birth in 1994 and an Estonian citizen’s documents had been issued to them, but verification of the facts revealed that the decision had been made in error. The PBGB explained to the individual that they had never been an Estonian citizen and did not issue them with new documents. By a subsequent decision resolving an extra-judicial administrative challenge, the PBGB did issue the individual with a passport for two years but still maintained the position that the past decision had been in error.
According to the Chancellor’s assessment, a decision to recognise a person as a citizen by birth should be considered a legally binding administrative act. The principle of legal certainty should be observed when changing or annulling it. A mistake or an error discovered years later may mean that the original decision had been an unlawful administrative act but, nevertheless, this does not automatically invalidate the decision. If the state recognised an individual as a citizen, then that person has been an Estonian citizen. This decision is valid until a new administrative act is issued. The PBGB, if it goes on to re-examine the decision on citizenship, should thoroughly consider all the facts, the principle of legal certainty, and the interests of the person concerned.
Thus, PBGB practice whereby an individual is simply notified (without issuing an administrative act) that they are no longer and never have been an Estonian citizen is unlawful. It is also worth pointing out that children of a person once recognised as an Estonian citizen are Estonian citizens by birth.
Loss of citizenship
Where a person, having acquired Estonian citizenship through naturalisation, is simultaneously a citizen of another country, the PBGB may initiate proceedings to deem a person to have ceased to be an Estonian citizen. In doing so, the principles of administrative procedure and good administrative practice have to be observed. A citizen by birth may not be deprived of their citizenship.
- With regard to one case, it may be said that the PBGB’s data did not coincide with the individual’s own data. According to the PBGB data, the person had acquired Estonian citizenship by naturalisation on marriage. The individual, on the other hand, knew that they were an Estonian citizen by birth. The PBGB, in turn, did not know whether the manner of acquiring citizenship had been recorded in the database at the time of making the decision or during a subsequent check of documents. The PBGB itself did not notify its decision to the person, who was therefore unable to raise objections or seek evidence to prove their citizenship by birth. Moreover, the PBGB was of the opinion that investigation of data that could prove possible citizenship by birth would require too many resources.
The Chancellor found that the PBGB should have investigated more thoroughly whether the person was a citizen by birth. The situation should also have been better explained to the person. Although the law allows a person to be deprived of citizenship when they have acquired citizenship by naturalisation but have also accepted the citizenship of another country, all the essential facts should nevertheless be ascertained. The individual should be given sufficient time to decide whether to give up the second citizenship. They should also be given time to make life arrangements resulting from that decision. Based on the Chancellor’s recommendation, the PBGB gave the person additional time to collect evidence.
- The Chancellor received a letter from an individual who contended that the PBGB had disregarded their objections and issued a decision but failed to inform them of it. As a result, the individual heard from the Russian authorities that their Estonian passport had been revoked. The Chancellor established that the PBGB had not demonstrated sufficient diligence in proceedings concerning citizenship as a very significant legal right. The PBGB had notified the individual about initiation of proceedings and given them an opportunity to submit objections, but upon expiry of the deadline for reply the PBGB failed to establish the facts and, after this, deemed the person to have lost their citizenship and revoked their documents. According to the Chancellor’s assessment, the PBGB acted in an excessively formalistic and legalistic fashion and showed no interest in whether the individual received the decision issued affecting them. The PBGB must verify when a person has received a decision by which they are deemed to have lost their citizenship, as the decision does not take effect before it is personally served. Although the PBGB had sent the decision on loss of citizenship to the person by registered mail with notice of delivery, it subsequently showed no interest in why no confirmation had arrived as to whether the letter had been delivered.
- According to the Chancellor’s assessment, the Citizenship Act is not in conflict with the Constitution although it does not enable restoring citizenship by birth once a person has renounced their Estonian citizenship as an adult. For minors, the Constitution provides an additional safeguard in this respect: it must be possible for them to restore their citizenship since giving up citizenship may have been, for instance, a decision by their parents. The state presumes that adults make decisions related to citizenship consciously and after careful consideration.
- The Chancellor was asked to assess whether applying the prohibition on multiple citizenship to persons acquiring Estonian citizenship prior to Estonia’s regaining independence was compatible with the principle of legitimate expectations. The Chancellor was contacted by an individual who had acquired Estonian citizenship after marrying an Estonian citizen in 1982. Additionally, they acquired U.S. citizenship in 2005. According to the Chancellor’s assessment, the decision on loss of citizenship in this case did not disproportionately interfere with the principle of legitimate expectations. A resolution of 26 February 1992 of the Supreme Council of the Republic of Estonia stipulated that the prohibition on dual citizenship arising from the 1938 Citizenship Act would only apply to persons acquiring Estonian citizenship after adoption of that resolution. However, this was a piece of legislation adopted during the transition period and the petitioner had the opportunity to take the prohibition on dual citizenship into account when accepting the second citizenship.
Issuing of personal identity documents
Several people complained to the Chancellor about issue or annulment of personal identity documents. The PBGB had consistently violated individuals’ rights by delaying issue of identity documents even though no legal basis to do so exists. On several occasions, the Chancellor has drawn attention to the fact that issue of identity documents should be distinguished from procedures concerning citizenship. People have waited for months for issue of new documents and have therefore been unable to travel to Estonia, to receive a pension, etc.
For example, the PBGB has extended the deadline for processing an application for issue of new identity documents in order to look into the circumstances of an individual’s acquisition of citizenship or the matter of dual citizenship. However, this is not allowed under legislation. A person needs identity documents for different acts on a daily basis. Therefore, short deadlines have been set for issue of these documents. The deadline may only be extended if verifying the existence of a legal basis for issue of an identity document or checking the identity of the applicant takes longer than the period set for processing the application.
New documents for an Estonian citizen must be issued promptly. Even when a suspicion has arisen with regard to the legal basis for acquisition of citizenship, those circumstances should be verified in the frame of separate administrative proceedings, but this gives no grounds for delay in issuing documents. (See the Chancellor’s opinion on delay in issue of identity documents, citizenship of descendants of optants and decision on loss of citizenship.)
The PBGB violates the law when revoking a person’s identity documents before having delivered a decision to them on loss of citizenship. The Chancellor explained that a decision on loss of citizenship does not take effect before it is personally served, so that no legal basis exists to revoke someone’s documents beforehand. A person may also find themselves in difficulty when their documents are revoked before they have even learned that the PBGB has made a decision on their citizenship.
Examination of applications for a residence permit
The Chancellor found several shortcomings in resolving applications for a residence permit lodged with the PBGB, and found unjustified delays in the work of the PBGB.
- The problem is that the procedure laid down by the PBGB according to which people should book a time slot to submit their application for a residence permit impedes the process. The Chancellor was contacted by an individual who had been forced to wait for more than a month for an opportunity to submit an application for a residence permit because not a single vacant slot for an appointment was available in the PBGB Tallinn service bureaus. The PBGB refused to accept an application sent by e-mail. This meant that the person’s application could not be included in the 2019 immigration quota.
The Chancellor explained that under the Aliens Act an application for a residence permit should, indeed, be submitted in person, so the PBGB did not violate the law by refusing to examine an application for a residence permit sent by e-mail. However, the requirement for booking a time slot for an appointment is not in line either with the law or the principles of good administrative practice, in particular in a situation where waiting time for an appointment is more than a month. This amounts to administrative incapacity violating the right of access to public services. The Chancellor drew attention to the same shortcomings in her 2018 overview.
In the specific case, the main problem derived rather from the quick fulfilment of the immigration quota; however, the Chancellor cannot assist in resolving that problem. The immigration quota is set by the Government and the parliament.
Since the PBGB has justified creating the system of appointment booking by examples set abroad (primarily Sweden), the Chancellor also looked into this aspect. It was found that in the Swedish Migration Agency applications could be submitted in the online environment as well as on the spot in a service bureau by waiting in a general queue. The booking system is needed primarily for certain operations (fingerprinting and photographing) but this stage is reached after the agency has already started dealing with a person’s application. Moreover, the Swedish system allows for exceptions for those who need to apply urgently. Thus, the system created by the PBGB is not particularly similar to the system used by the Swedish Migration Agency. Rather, the PBGB uses the booking system because of its limited resources. However, in the event of an increased workload or a crisis situation (e.g. when urgent replacement and renewal of faulty ID cards is needed), such a system impedes people’s access to a public service essential for them.
The Chancellor also found other delays in the work of the PBGB; these concerned a decision on expulsion and its enforcement. Resolving an application for the right of residence of a family member of a European Union citizen also took longer than permissible.
A person who had been staying in the detention centre for seven months and had received a decision for expulsion complained to the Chancellor that they wished the decision to be enforced more quickly. Investigation of the matter revealed, inter alia, contradictions in the information submitted by the petitioner, which at least partially prolonged the process. However, the PBGB had also been inactive for four months, so that no new enquiries were made with the embassy of the expellee’s country of origin nor were travel documents requested from the embassy. The PBGB made new enquiries only when the deadline for court-issued authorisation for detention was about to expire.
There was also a case where the PBGB first contacted an applicant for the right of residence of a family member of an EU citizen only four months after submission of the application. Yet, already during the first month it was clear that the specific application might not comply with the conditions for granting a right of residence to a family member of an EU citizen. Following the Chancellor’s intervention, the PBGB explained to the applicant all the circumstances and problems concerning the proceedings.
Identifying foreign citizens
The Money Laundering Prevention Act lays down that, in order to identify the person of an e-resident, a foreign national must present to a credit institution a document bearing their photograph (unlike the ID card, an e-resident’s card does not bear a photograph).
The requirement was established with a view to preventing a situation where, in actuality, an e-resident’s card and PIN codes are used by someone else. The wording of the provision in the Money Laundering Prevention Act may cause confusion in identifying foreign nationals living in Estonia on the basis of a long-term residence permit and Estonian nationals with dual citizenship. Once Estonia has already granted to an alien a residence permit and an identification document based thereon, it is no longer necessary to ask them to present a foreign identity card.
The Chancellor was asked to explain why the PBGB requests data on an applicant’s social media accounts when applying for an e-resident’s digital identity card. The person had also asked for information from the PBGB about this, but the PBGB had failed to reply. The Chancellor explained that under the General Data Protection Regulation people should be notified about the purpose and the legal basis for collecting their personal data. (See also the Chapter „Protection of privacy“.)
Registration of residence
Considerable confusion was caused by the new Population Register Act when, as a spill-over effect of rearrangement of the register data, some people were initially not entered on voter lists due to absence of residence data. At the beginning of 2019, data in the population register based on which a person’s residence had been recorded to a level of accuracy stating the city, city district or rural municipality or settlement unit became invalid. As voter lists are drawn up on the basis of the population register data, people who had not renewed their data were excluded from the list of voters. The Chancellor explained that prior to an election a person’s residence can be registered through a simplified procedure; if necessary also to the level of accuracy of a city, city district or rural municipality. After that the person is also entered on the list of voters.
The Chancellor was contacted by a European Union citizen wishing to record a hostel as their residence in the population register, and submitting to the vital statistics office confirmation from the hostel on booking a room. However, an official at Tallinn Vital Statistics Office requested the person to submit a lease contract or permission from the owner of the hostel. The Chancellor found that no such additional requirements may be imposed and the vital statistics office had been in error. The law also allows registration of a non-dwelling as one’s residence but the person must prove the right to use those premises as a residence. That right is also provided by written confirmation from a hostel on booking a room. In that case, no permission from the owner of the building is needed.
The right of a refugee to change their name
During preparation of the Draft Names Act, the Chancellor repeated her earlier opinion presented in the Chancellor’s 2017–2018 overview that a refugee is also entitled to change their name. However, the Draft Act stipulated that an applicant for international protection may only change their name after a residence permit of a long-term resident has been issued to them.
A refugee is in a situation equivalent to a stateless person as they are no longer under the protection of their state. That situation arises immediately after receiving refugee status. A refugee may have compelling reasons for changing their name.
Legal analysis of the United Nations Global Compact for Migration
In autumn 2018, the Chancellor analysed the legal nature of the UN Global Compact for Migration at the request of the Government, the Minister of Foreign Affairs, and the Riigikogu. The issue was whether the Compact constitutes an international agreement that may involve binding obligations: for example, the obligation to change nationally established immigration policy.
The Chancellor reached the conclusion that the Global Compact for Migration is not an international agreement and does not impose additional obligations on Estonia. International agreements are considered to be agreements that express the intent of the parties to incur legally binding rights and duties. The UN Global Compact for Migration, however, clearly states that it does not impose legal obligations but creates a platform for international dialogue and cooperation.
Approval of the Global Compact for Migration does not impose legal obligations on the state since the text of the document precludes such a development. Nor can the Global Compact develop into a norm of customary law without additional agreements to be concluded with Estonia’s participation and without long-standing practice.
About inspection visits to the detention centre, airport detention facilities and the transit zone, see the chapter “Inspection visits”.)