Population
Citizenship and documents
During the reporting period, it was found that the Police and Border Guard Board (PBGB) was still delaying with issue of a new identity document on the grounds that the Board had initiated proceedings for loss of Estonian citizenship in respect of the person concerned. Although the person, according to their own knowledge, was a citizen by birth, the PBGB believed differently and refused to issue new documents to them because it had initiated proceedings for deprivation of citizenship on account of the person holding citizenship of another country. However, in the event of giving up the other country’s citizenship, the person would have been left without health insurance and free care.
The Chancellor drew the PBGB’s attention to the fact that current legislation does not provide grounds for extending the deadline for issue of identity documents because the PBGB has initiated proceedings for loss of citizenship in respect of a person. The deadline may be extended if there is reason to doubt the legality of issue of a document. If a person is an Estonian citizen, they are also entitled to receive an Estonian citizen’s identity document. If a person wishes to receive new documents despite proceedings for deprivation of citizenship having been initiated, the PBGB must issue documents within the statutory deadline even if the documents may later be revoked. The PBGB has no discretion to decide whether or not to issue identity documents to an Estonian citizen. Unfortunately, the PBGB has not changed its relevant practice.
The Chancellor also noted that the PBGB must check whether a person may have acquired Estonian citizenship by birth. In many cases, the PBGB has failed to do so because, in the interests of speed of dealings with the authorities, a person having married an Estonian citizen was determined to be an Estonian citizen by naturalisation. At the same time, in proceedings for deprivation of Estonian citizenship, the circumstances of each individual case must be taken into account.
In view of the petitioner’s health, in the instant case the PBGB in the course of proceedings waived its previous request that within one year the person should begin the process of giving up their foreign citizenship.
Refusal to issue an Estonian citizen’s identity documents in a foreign country
An Estonian citizen living abroad wanted new Estonian citizen’s identity documents issued to them via the Ministry of Foreign Affairs. The PBGB refused to do so but did not justify its decision. In addition, the official resolving the application had demanded that the person should submit confirmation from another PBGB official concerning the fact that no basis existed for issue of documents abroad, even though those data should be ascertained by the PBGB itself.
The Chancellor found that the PBGB had failed to resolve the application lawfully and in conformity with the principle of good administration. The PBGB refused to issue documents abroad by relying on § 121(24) of the Identity Documents Act entering into force at the beginning of 2021. Under this provision, a document may not be issued through the Ministry of Foreign Affairs if a person has been declared a fugitive or the person has been imposed a prohibition on departure from residence or bail by way of a preventive measure in criminal proceedings. However, the PBGB official had presented a wrong legal basis to the applicant.
A person must also receive an explanation why the decision on refusal was made. PBGB officials themselves must ascertain the circumstances concerning an application for a document and collect information for it if necessary.
The PBGB affirmed that steps had been taken to avoid such problems in the future.
Population records
A child’s data in the population register
The Chancellor was contacted with a concern that the data of a child born in Estonia had not been activated in the population register by officials because the child’s parents were staying in Estonia on different legal bases. As a result, the child had been deprived of health insurance.
The Chancellor found that non-activation of the data was unlawful. A register entry must be made even if it is not possible to immediately ascertain all the data concerning a child. It is sufficient that a child is less than one year old and belongs to an alien living in Estonia on the basis of a residence permit.
If one of the child’s parents is a citizen of the European Union and the other parent lives in Estonia on the basis of a residence permit, then according to law the child’s legal status is determined on the basis of the legal status of the parent who is a European Union citizen since issues of the legal status of EU citizens and their family members are regulated by the Citizen of the European Union Act as the specific law.
According to the Chancellor’s assessment, a question arises whether the above administrative practice and provisions of the law always ensure the rights of the child. For example, it is questionable whether determining a child’s legal status imperatively according to the parent holding European Union citizenship is justified in a situation where relying on the legal status of the other parent’s stay in the country would grant the child more rights and a more secure basis (e.g. if one of the parents holds a long-term resident’s residence permit while the parent with EU citizenship has a temporary right of residence).
In the instant case, a question also arose whether the child was entitled to Estonian citizenship or whether they had acquired citizenship of a foreign country by birth. Therefore, no record concerning the child’s citizenship was made in the population register.
According to PBGB practice, a child’s citizenship data may remain unspecified even until the child reaches 15 years of age. However, the Chancellor cannot agree with this position. The Estonian state should ascertain whether a child has acquired the citizenship of another country by birth or whether they are entitled to Estonian citizenship by simplified procedure. The UN Human Rights Committee has noted that assessment of a child’s citizenship should not take longer than five years (views adopted by the UN Human Rights Committee in the case of D. Z. v. the Netherlands, 20 January 2021, CCPR/C/130/D2918/2016, para. 8.3). On that basis, a child’s citizenship in the population register should not remain undetermined.
According to the Chancellor’s assessment, a parent should also ensure that the child’s citizenship is ascertained.
Hostel as a place of residence
Once again the Chancellor received a petition complaining that a local authority refused to register a hostel as a person’s permanent residence. The rural municipality argued that a hostel is not a dwelling, i.e. a residential building or an apartment, which can be used for permanent dwelling.
The Chancellor found that Rae Rural Municipal Government had acted unlawfully. Under the Population Register Act, it is also possible to register one’s residence at an address of a non-dwelling if the person proves use of that space as their residence.
Population census and information about children’s religion
Prior to the upcoming census, the Archbishop of the Estonian Evangelical Lutheran Church, Urmas Viilma, asked for the Chancellor’s opinion whether the census respects the principle of children’s freedom of religion since no question about religious belief is asked from children under 15 years old.
The Chancellor did not find a violation of children’s freedom of religion in this case. The Estonian Constitution and international agreements guarantee children’s freedom of religion. Its core is a person’s inner conviction which they may but need not share with others. A parent cannot decide on behalf of their child whether to disclose to the state information about the child’s beliefs. It should also be taken into account that the child’s own response may differ from the response given by their parent. However, a child might not understand what it means to disclose data about themselves to the state and why disclosing data about one’s beliefs is voluntary. Thus, a response given by a child need not be a conscious response.
The Chancellor explained that even though a child’s maturity should be taken into account in deciding over the exercise of freedom of religion, this does not prevent setting a specific statutory age threshold in respect of certain legal relationships, as of which a child themselves may perform actions with legal effect. On that basis, the situation did not constitute age discrimination. (See also the Chapter “Equal treatment“.)
Registered partnership contract
The Chancellor was asked about the registered partnership of same-sex people and their rights. The problem is that the Ministry of the Interior still does not enter data on concluding a registered partnership contract into the population register. In one case, an Estonian consul had told a person that they cannot obtain an Estonian visa since the population register did not contain data about their registered partnership contract.
In another case, it was found that it is difficult for same-sex partners to enter into a registered partnership contract at a notary’s if one of the parties is a foreign citizen whose data are not available in the population register. The petition revealed that notaries provide different pretexts for refusal to conclude the contract.
The Chancellor explained that the most effective solution is to have recourse to the court for protection of one’s rights. Case-law affirms that the absence of implementing legislation for the Registered Partnership Act does not prevent entering into a registered partnership contract with a foreign citizen (Harju County Court judgment of 8 June 2020, No 2-20-5958). The court has also established that under § 3(4) of the Registered Partnership Act the registrar is required to enter the details of a registered partnership contract in the population register (Tallinn Court of Appeal judgment of 17 September 2018 No 3-17-1269, para. 15).
Aliens
The Supreme Court heard several constitutional review cases concerning the legal status of aliens. The Supreme Court declared unconstitutional and invalid § 10010(1), § 10013(2) and § 10018 of the Aliens Act insofar as they preclude filing an appeal with the administrative court for contesting premature termination of the period of stay (Supreme Court Constitutional Review Chamber judgment of 20 April 2021, No 5-20-10/13). The Chancellor also reached the opinion that these provisions were unconstitutional.
The Supreme Court also resolved an application by Tallinn Court of Appeal to declare unconstitutional the part of the Aliens Act which precludes issuing a temporary residence permit to an alien wishing to settle in Estonia with a same-sex registered partner who is not an Estonian citizen but holds a residence permit in Estonia. The Court of Appeal also declared unconstitutional a ministerial regulation which fails to regulate the issue of certifying conclusion of a registered partnership contract.
The Chancellor found that both legal acts contravene §§ 12, 26 and 27 of the Constitution because they do not enable grant of a residence permit to the registered same-sex partner of an alien living in Estonia on the basis of a residence permit.
The requirement for an employer’s deposit in the Aliens Act
The Chancellor had to resolve an undertaking’s concern involving a complaint that, after the entry into force of an amendment to the Aliens Act on 1 July 2020, the Police and Border Guard Board (PBGB) had changed its administrative practice in connection with temporary agency workers, so that it is now less favourable towards undertakings. While previously an employer had to have funds on deposit to the extent of ten per cent of the employer’s monthly remuneration fund, then after amendment an undertaking had to deposit ten per cent of the 12-month remuneration of a particular alien.
The PBGB may register temporary agency work as short-term employment or grant an alien a residence permit to work as a temporary agency worker if the employer has deposited the amount required under the Aliens Act to guarantee the obligations related to remuneration. The issue is for what period the employer’s deposit is to be calculated.
In a memorandum to the Riigikogu Constitutional Committee, the Ministry of the Interior and the Police and Border Guard Board, the Chancellor reached the opinion that the rules establishing the obligation of an employer’s deposit (§ 106(8) and § 176¹(2) Aliens Act) do not lay down with sufficient clarity what sum an employer must deposit. Nor is there a maximum limit for the financial obligation. In view of the onerous nature of the financial obligation and the requirement of a legal basis, this shortcoming cannot be overcome even by way of a constitutionally-conforming interpretation.
In the memorandum, the Chancellor also raised the issue of the proportionality of the regulatory provisions since, according to information from employers’ representative organisations, no necessity has arisen in practice to actually make use of the employer’s deposit. Nor is there any other data (including impact assessments) that would enable a conclusion that the deposit is unavoidably necessary for achieving a particular aim.
On that basis, the Chancellor asked the Ministry of the Interior and the Riigikogu first to analyse the necessity for regulatory provisions on the employer’s deposit as laid down by the Aliens Act. Should it be confirmed that the deposit requirement is necessary, the Chancellor asked the Riigikogu to amend the Aliens Act so that an employer would be able to understand the amount of the financial obligation from the wording of the law without external assistance. The conditions for disbursement and repayment of the deposit as well as the main procedural norms in connection with it must also be regulated.
The Chancellor reached the opinion that it cannot be considered lawful that the PBGB has changed the period of calculating the deposit by relying on a legislative amendment which is not at all related to the period of calculating the deposit. Such a change in practice is deceitful towards employers and the Chancellor asked that it should be avoided in the future.
However, the PBGB as an executive agency cannot set aside a norm not conforming to the requirement of a clear definition and it has the duty to apply applicable law. In view of this, the Chancellor suggested as a solution for calculating the deposit that the remuneration fund could be based on one month’s remuneration and ten per cent of this should be deposited. Until the law is amended, this enables application of the regulatory provisions so that interference with the rights of persons is minimal. (See also the Chapter “Money”.)
Legal status of seafarers
The Estonian Seamen’s Independent Union asked for the Chancellor’s opinion concerning the situation that the Estonian authorities do not require an Estonian residence permit or a visa or registration of short-term employment from foreign seafarers working on ships flying the Estonian flag. According to the trade union, this is unlawful. This places Estonian seafarers at a disadvantage because, moreover, seafarers from third countries are also not subjected to the minimum wage requirement or authorisation by the Estonian Unemployment Insurance Fund, which have been established for protection of the Estonian labour market.
The Chancellor found that the PBGB and the Transport Administration violate the law by failing to require compliance with the requirement of an Estonian residence permit or a visa and registration of short-term employment from third-county seafarers working on ships flying the Estonian flag. If the Riigikogu finds that these conditions should actually not be applicable to these people then the law can be amended. Under the current law, these requirements must presently be complied with, and Estonian seafarers are right to consider disregard for the requirements as damaging their interests.
Officials have conceded that theoretically ships flying the Estonian flag are considered Estonian territory and are subject to Estonian laws. This means that, under the law, third-country seafarers on ships flying the Estonian flag must also have either an Estonian residence permit or a visa and, where necessary, their short-term employment must be registered.
The Chancellor sent a recommendation to the agencies to bring the administrative practice into line with the law. The PBGB and the Transport Administration must also update the information published on their website concerning the legal bases for work by seafarers from third countries.
Applications for international protection
The Chancellor received a complaint that the PBGB refused to formalise a person’s application for international protection even though the person wanted this. The PBGB also failed to pay sufficient attention to the person’s special needs.
The Chancellor found that the PBGB must accept an application for international protection even when a person expresses a wish for it in the course of other proceedings (e.g. criminal proceedings). The PBGB must also assess the need for protection on its own initiative if a person’s explanation indicates the possible existence of a need for it.
Where necessary, the authorities must explain the possibility of lodging an application for international protection.
The PBGB also failed to pay necessary attention to the applicant’s physical disability and emotional problems. The PBGB must assess whether and what assistance needs to be provided to a person due to their special needs. The PBGB informed the Chancellor that the need for assistance will be assessed more effectively in the future.
In another case the PBGB violated the law because, while issuing a precept to leave the country, a PBGB official disclosed to the person subject to expulsion the data about the circumstances of their spouse’s application for international protection, even though those data may not be disclosed (§ 13(2) Act on Granting International Protection to Aliens). Moreover, during the interview for the purposes of the precept to leave, the PBGB official asked for the individual’s personal data for which no basis existed and by which a very serious interference with the individual’s family and private life took place.
The Chancellor found that by doing so the PBGB violated the principles of administrative procedure and the right to the inviolability of family and private life laid down by § 26 of the Constitution. The PBGB knew that due to the spread of the coronavirus the person was not able to leave Estonia during the validity of their visa. At the time of the interview, a possibility for departure had been found and only matters related to issuing the precept to leave needed to be resolved. In such a situation, the interview may only concern the matter of the precept to leave. Other proceedings – granting international protection, the issue of whether the family relationship of the official spouses is real, and the like – may not be mixed with this.
The Chancellor asked that the Director General of the PBGB should ensure that the PBGB complies with statutory requirements in its work. The PBGB must also comply with the requirements of administrative procedure and the Constitution in its proceedings.
Submission of false information
In one case, the PBGB had submitted false information to a person and the court.
A PBGB official had informed a person subject to expulsion that a travel document for them had been applied for from the embassy of the Russian Federation and that the document was ready. When the person contacted the embassy it was found that no document had been issued.
When ascertaining the facts, it was found that the PBGB had indeed given false information to the person about the travel document. The PBGB had also provided false information to the court when seeking authorisation to detain the person. While the applicant was in prison, Tallinn Prison applied for a certificate of return for the applicant from the embassy of the Russian Federation but due to the pandemic the embassy’s consular department was closed and no decision on issue of the travel document had been made.
According to the PBGB’s explanation, the PBGB officials had misunderstood the e-mail from the consular department of the embassy of the Russian Federation, assuming that the travel document had been issued but it was simply impossible to receive it due to the pandemic.
The Chancellor noted that the activities of the PBGB had been unlawful but the PBGB had not submitted false information intentionally.
Failure to comply with a court judgment on entry ban
The Chancellor was also contacted by a person whom the PBGB had informed that an entry ban had been imposed on them for five years up to 2024. However, according to the final court judgment the entry ban was to be valid for three months and its validity had expired at the end of 2019. The PBGB had failed to comply with the final court judgment because an official had failed to amend the data in databases.
The Chancellor noted that failure to comply with a final court judgment was unlawful. The situation had been resolved since on 23 February 2021 the PBGB amended the data in the register of entry bans and the right to enter Schengen countries resumed.
Entry to the country with a special permit, and visas
The Chancellor received numerous applications about how the PBGB processed applications for a special permit to enter Estonia during the corona crisis. Problems were caused by the fact that under the Government of the Republic order the PBGB was granted a broad margin of appreciation in issuing special permits. Sometimes the decisions were contrary to the PBGB’s own general guidelines. However, the PBGB resolved several problematic cases either during examination of a repeat application or extra-judicial challenge or while responding to an enquiry by the Chancellor.
In one case, a person repeatedly applied for a permit for their cohabitant. The PBGB granted permission to enter Estonia only in response to the third application although the applicant had specified that the reason for coming to Estonia was to get married. At the same time, the PBGB guidelines prescribed that the PBGB issues a special permit for entry to the country for unavoidable family reasons (including for getting married) and also to carry out urgent procedures in state agencies where a person’s presence is required (e.g. to submit an application for marriage). The Chancellor found that the PBGB’s refusals had been unlawful.
In another case, a special permit for entry to Estonia was sought for a same-sex partner wishing to enter into a registered partnership contract in Estonia. In this case, too, the PBGB initially refused to grant the permit although same-sex persons have no other possibility to legalise their partnership than through a registered partnership contract. The PBGB resolved the problem in the course of further proceedings.
In the third case, the Chancellor dealt with a petition according to which a worker from a third country could not come to Estonia together with their family. If a worker has no residence permit, the PBGB also does not issue their family members with a special permit to enter the country. When resolving the application for a special permit, the PBGB official failed to take into account the principle of family unity or family reasons. Applicants for a special permit often also found themselves as if in a vicious circle because prior to issue of a special permit the PBGB requested them to present evidence of a legal basis for stay in Estonia, but foreign missions of Estonia did not accept visa applications unless the person had received confirmation concerning a special permit from the PBGB.
The Chancellor considered it questionable whether such a broad restriction on the right of entry to the country on the basis of the Government of the Republic order was compatible with the law and the Constitution. The PBGB enjoys quite a wide margin of appreciation in issuing a special permit to family members of foreign workers staying in the country, but regardless the PBGB in its decision must weigh all the essential facts and comply with the requirements of administrative procedure. According to the PBGB, as a rule they did not require that a person must have a legal basis to stay in Estonia in order to obtain a special permit, but the issue of a special permit and the basis for stay are examined in combination.
After clarifying the facts, the PBGB admitted a mistake by an official in the case of application for a special permit described above. It was also found that by a directive of the Secretary General of the Ministry of Foreign Affairs a restriction had been imposed according to which foreign missions of Estonia did not accept visa applications from people who had no PBGB special permit for entry to Estonia.
The Chancellor found that directive No 146 of the Secretary General of the Ministry of Foreign Affairs was unlawful and had to be invalidated since no legal basis existed for its adoption.
Procedural deadlines
As a more general problem, it was found that in resolving applications for a residence permit or extension of a residence permit the PBGB failed to comply with the general deadlines laid down by legislation, and proceedings take a very long time.
Under the Aliens Act, these deadlines are established by regulation but a deadline may not exceed six months (§ 33(1) and (3) Aliens Act). The deadline may be extended if ascertaining the relevant facts or collecting evidence takes more time (§ 34(1) Aliens Act). According to a regulation of the Minister of the Interior, an application for a residence permit or extension of a residence permit is to be examined within two months (§ 22, § 44(1)). Furthermore, an application for extension of a residence permit must be resolved no later than ten days before the end of validity of the temporary residence permit.
Petitions received by the Chancellor showed that the relevant proceedings often lasted for more than six months. In one case, examining an application for a residence permit had lasted for more than a year; in another case resolving an application for extension of a residence permit took more than ten months.
The PBGB cited as a justification for delay in proceedings the directive of the Director General by which the requirement of procedural deadlines was suspended for the duration of the emergency situation. The directive stated that deadlines began running from the start after the emergency situation ended. The same topic was also dealt with in the Chancellor’s 2020 annual report. The Chancellor has found that the above-mentioned directive was unlawful.