“Illegals” in Estonia: Final Solution?  

New amendments to Law on Obligation to Leave and Prohibition on Entry

CONTENTS

- Background information
- Law on Obligation to Leave and Prohibition on Entry before the adoption of new amendments
- New amendments to Law on Obligation to Leave and Prohibition on Entry
A. Precept to legalise
B. Precept to leave and expulsion
C. Proposals to the amendments
- Conclusions

Background information

The first version of the Law on Obligation to Leave and Prohibition on Entry (hereinafter in the text LOLPE) was adopted on 21 October 1998[i]. It was to solve the problem of illegal aliens or “illegals”.  After Minister of Interior Tarmo Loodus and Minister of Justice Märt Kraft, the main purpose of the recent amendments to this Law was “to lighten the administrative courts’ burden of preventive control over administrative bodies[ii].”

Estonian “illegals” begun to appear after 1991, i.e. after Estonia had regained independence. In 1992 the last local Supreme Soviet took a decision on restoration of the corp of citizens. As a result only citizens of the pre-WWII Republic of Estonia and their descendants were entitled for Estonian citizenship. The decision “granted” citizenship to some other small groups (e.g. to wives of citizens)[iii]. As a result in 1992, citizens of Estonia composed only 68% of the all population.[iv] Others, i.e. ca 500,000 former Soviet subjects became aliens without changing the place of residence. According to Law on Aliens, 1993 (hereinafter in the text LA) all of them were obliged “to legalise” by applying for resident permit (initially, a temporary one).   Only for those who have hade permanent domicile registration (propiska) of the former Estonian Soviet Socialist Republic (ESSR) a resident permit was guaranteed provided an alien did not belong to disfranchised groups of aliens (such as former security service officers)[v].

After Estonian jurist Andrei Arjupun, there are 4 groups of  illegal aliens in Estonia: 1) aliens with ESSR permanent registration who failed to apply in due time for a resident permit 2)  aliens-residents who did not have a recognised permanent registration in 1990; they could apply only in foreign representatives of Estonia  3) aliens  released form detention (former convicted criminals) 4) aliens who arrived and remained in Estonia illegally after 1991; they are mostly people who failed to receive a resident permit for family reunification[vi].

Officials claimed that there could be at least 35 thousands of illegal aliens in Estonia. It is worth mentioning that according to the estimation of the Statistical Office of Estonia there were 1,436,633 residents in Estonia in the beginning of 2000. These figures were based on up-date of the 1989 national census. According to preliminary data of the 2000 census, there were only 1,369,279 residents in March 2000[vii]. As far as many “illegals” are in fact Estonian residents for decades the “gap” in figures  (ca 67 000) can be at least partly “filled” by such illegal aliens.

Law on Obligation to Leave and Prohibition on Entry before the adoption of new amendments

Law on Obligation to Leave and Prohibition on Entry was adopted 3 years after the end of the large campaign of “legalisation” of former Soviet citizens. As a result illegal aliens, i.e. persons who lacked legal basis for staying in Estonia[viii], were to receive a precept to leave. The Law permitted even a 1-year deadline; a deadline might be prolonged (“old” LOLPE Arts. 7 and  8). Normally person tried to legalise before the term of the precept was expired.

The Law also stipulated provisions regarding deportation of “illegals”. By taking such a decision, an administrative judge took into account the duration of the alien’s legal stay in Estonia; personal, economic and other ties which the alien has with Estonia and which are deserving of protection; the consequences of the alien leaving Estonia for the family members of the alien; circumstances which are the basis for the issue of the precept; the age and state of health of the alien; etc (Section 2 Art.14).

Precept to leave was subjected to judicial review if required (Art. 13). The deportation of illegal alien was possible following the decision of the administrative judge on the basis of a special expulsion order subject to appeal (Art. 15).

In practice certain groups of  “illegals” were able to legalise.  They could and can receive a special permission to apply for a resident permit in Estonia (LA, p.6 Section 3 Art. 9) and the annual migration quota was not and is not applicable to part of them (LA Art. 21). However, the main difficulty for majority of “illegals” was absence of appropriate legal basis to apply for a permit[ix].

Since July 1997 “illegals” were encouraged to register during a special campaign launched by the Citizenship and Migration Board[x]. Few unregistered  “illegals” were placed into special expulsion centres by the authorities (it was permitted “if it was not possible to complete expulsion within the term provided for in the Law” (“old” LOLPE Section 1 Art. 23). The decision to place there a person for 2 months could be made by an administrative judge. The term might be prolonged by 2 months as many times as necessary (Art. 25). The expulsion centres were situated in the territory of prisons. In fact, the “illegals” who lacked ID documents and/or were stateless remained there for years. There were no place to expel them; it was impossible for them to apply for a resident permit without a spouse or relatives in Estonia. Persons in expulsion centres were factually in detention. Consequently they were unable to visit state institutions, to collect necessary documents etc[xi].

New amendments to Law on  Obligation to Leave and Prohibition on Entry

The authors of the new amendments to the Law on Obligation to Leave and Prohibition on Entry were interested to bring order to the system of precepts to illegal aliens. The amendments were adopted on 6 June 2001[xii]. They introduced two types of precepts: precept to legalise and precept to leave. Both precepts are subjected to judicial review (Section 3 Art. 13, here and below references to LOLPE in new version)

  A. Precept to legalise

According to LOLPE Section 1 Art. 9, a precept to legalise can be issued if an illegal alien: 

1. enjoys family life in Estonia, which is protected by the law
2. is an ethnic Estonian
3. has settled in Estonia before 1 July 1990 and has thereafter not left to reside in another country and who does not damage the interests of the Estonian State.

The ban to expulse those who enjoy family life in Estonia reflects some principles stipulated in the rulings of the Estonian supreme court (the State Court) regarding the applicability of the migration quota to spouses of Estonian residents[xiii].  A special ethnic privilege is based on the constitutional provision (Art. 36) that each ethnic Estonian has a right to settle in Estonia (additionally in the Preamble of the Constitution is explicitly said that the Estonian State is to guarantee the preservation of the Estonian nation (meaning ethnic group) and culture through the ages).

It is worth emphasising that there are many illegal aliens who 1) have settled in Estonia after 1 July 1990, or 2) had settled in Estonia before this deadline but were temporary abroad in 1990 or shortly thereafter (e.g. he/she was out for studying at that time). Many of them do have close ties with the country but not a family or Estonian ethnic origin. Representatives of the both categories are deprived of opportunity to legalise and an appropriate precept will not be issued to them. However the fulfilment of the precept to legalise will not be possible for many other “illegals” who formally comply with the requirements of the Law.  Those illegal aliens who do not have spouses or close relatives in Estonia are lacking the only legal basis available to them to apply for a resident permit.

One of the most controversial issues in the new amendments is the introduction of the so-called “compulsory money” (sunniraha).  In fact, it is a fine that could be imposed on an  “illegal” after 90 days since the issuance of a precept, which is not fulfilled[xiv] (Section 4 Art. 10). According to the special governmental regulation, the deadline for taking a decision on issuance of a resident permit to an “illegal” is six months; the deadline could be prolonged up to 1,5 year[xv].  In practice issuance of a resident permit to an “illegal” requires 1 year, which makes the above-mentioned provision rather peculiar.  The decision on “compulsory money” will be taken by the same institution which deals with the issuance of residents permits, i.e. by the Citizenship and Migration Board (Section 1 Art. 10).

The “compulsory money” could reach the sum of EEK 10,000 or ca DEM 1,250 (Section 2, Art. 9). It is almost 2 average brutto salaries in the country.

B. Precept to leave and expulsion

Similar to precept to legalise a precept to leave could be issued by a state official (Section 1 Art. 11). However, its non-fulfilment courses an expulsion (Arts. 8 and 14). Additionally there is no special expulsion order required any longer: a person can be normally expelled in 48 hours after he/she was deprived of liberty for not fulfilment of a precept to leave (Arts. 15 and 18). An “illegal’s” appeal to court regarding the expulsion could not result in prolongation of the deadline of expulsion itself (Section 1 Art. 16). That means that a person will be forced to deal with the case being abroad.

An illegal alien (with a representative) could present at the moment of issuance of both precepts, offer his/her objections, and file his/her applications (Section 2 Art. 11). However, a person would receive a written invitation to present at issuance of a precept only “if necessary” (Section 4 Art.11).  An unfinished procedure of application for e.g. residence permit will not be a reason to justify the postponement of expulsion (Section 3  Art. 7). The Law stipulates that expulsion cannot be executed if it can, inter alia, result in aliens’ torture, inhuman or degrading punishment or treatment, death or discrimination on ethnic, racial, religious, social or political basis (Section 4 Art. 14).

C. Proposals to the amendments

During the parliamentary discussion the fraction of the United People’s Party of Estonia prepared motivated amendments to the Law on Amendments to Law on Obligation to Leave and Prohibition on Entry[xvi]. Their proposals were aimed at ensuring “illegals” access to courts. Additionally there were attempts to alter unreasonable provisions, e.g. the right to impose “compulsory money” after 90 days after the issuance of a precept to legalise etc. The amendments were prepared after consultations with jurists dealing with migration legislation on daily basis.

Unfortunately, almost all proposals of the United People’s Party were rejected on the meeting of the constitutional commission of the parliament and on the plenary session. The parliamentarians loathe accepting argumentation of the opposition party that explicitly promotes interests of minority population. The amendments were claimed inappropriate taking into account the necessity to raise “efficiency” and “speed” of expulsion procedure[xvii].

The authors of the draft have referred to the conformity of the amended law with the EU aquis communautaire. However, the EU acts mentioned in the explanatory note attached to the draft have another object of regulation (they deal with document checks, problems of documentation of “illegals”, transit of expulsed through third countries etc)[xviii].

Conclusions

1. The amended Law on Obligation to Leave and Prohibition on Entry includes a simplified system of dealing with illegal aliens. There are 2 types of precepts: precept to legalise and precept to leave. There is no special administrative document for expulsion. The latest is decided by a state official, not by an administrative court as it has been before.
2. A precept to legalise could be issued to a limited range of illegal aliens. The lawmakers did not take into consideration peculiarities of the situation in Estonia. As a result, many “illegals” are still deprived of the opportunity to legalise.
3. The rules on procedure regarding “compulsory money” are not reasonable and include no protection against misuse of power by officials. The imposition of “compulsory money” could make an “illegal” cease legalisation procedures and/or leave the country.
4. The procedure regarding expulsion is also open for misuse of power by officials because  “illegals” access to court is limited.
5. The authors of the amendments to the Law ignored a number of  Rechtsstaat principles, such as the right of judicial review of administrative decision and the right to access to courts.

To sum up, the amended Law on Obligation to Leave and Prohibition on Entry will worsen the situation of illegal aliens in Estonia. Some of its provisions are inappropriate from the rule of law perspective.

Vadim Poleshchuk

Legal Information Centre for Human Rights, Tallinn, Estonia

vadim@lichr.ee

NOTES