Centre’s refugee case changed the PBGB and court practice

Five decisions of the Supreme Court in 2020 have a significant impact on how disputes related to the rights of foreigners to stay in Estonia are resolved in the future, writes Mariliis Toomiste in the latest court yearbook. One of them is the strategic case of the Estonian Human Rights Centre in the field of refugees, which reached the Supreme Court and set an important precedent.

The center represented an Ugandan from LGBT community in court who was not considered worthy of international protection by the Police and Border Guard Board (PBGB). In Uganda, homosexuality is punishable by life imprisonment, but the PBGB did not believe the applicant’s allegations of homosexuality and harassment. We won in the administrative court, but the court of appeals did not consider the explanations and submitted evidence sufficient. However, the Supreme Court found that the PBGB had not followed the law correctly and that the court of appeals had not done its job properly. The dispute was sent back to the court of appeals, where the Ugandan finally received a positive decision.

“The Administrative Chamber of the Supreme Court thoroughly explained, based on the existing law, how evidence of the applicant’s sexual orientation should be collected and assessed for international protection cases,” said Markus Hallang, the centre’s refugee lawyer.

Relying on the case practice of the Court of Justice of the European Union, the Supreme Court emphasised the importance of the following factors:
  • the integrity of a person’s private and family life must be assured, and fundamental human rights must be followed when assessing sexual orientation
  • stereotypical approaches and conclusions that do not take into account the individual situation and cultural specificities of the applicant for international protection require more attention
  • in matters of international protection, serious consideration should be given to holding hearings in order to get a direct impression of the applicant’s credibility

In addition, the Supreme Court recalled that a person whose sexual orientation is punishable in his or her home country has the right to apply for international protection on that basis and that his or her fear of persecution must be assessed in the light of belonging to that social group.

“This is very important for similar cases in the future, because the decision of the Supreme Court has a lot of weight. In practice, this decision has already changed so much that if the case concerns a person’s credibility, then ordinary hearings are held in the court of appeals also, while before that the written procedure was common practice,” said Hallang.

One of the aims of the Centre’s strategic action cases is to make the asylum procedure more efficient and fair. It is important for us to be able to solve a bigger problem in the field of human rights and help many people through one person’s court case.

Estonian Human Rights Centre commends the Supreme Court for its fair work and pointing out important details!

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