12 - peatükk

Rights of refugees and asylum seekers

Author: Anni Säär

Anni Säär

There are several reasons why people change their place of residence – for example, to go live with their spouse, or because they have accepted an offer for a better job. However, for a lot of people leaving their country of origin is not a choice, but they are forced to leave in order to guarantee the life or health of themselves, and often also their family. Refugees need special protection precisely because they have not chosen this fate for themselves. Estonia has been providing international protection since 1997 when we acceded to the UN Convention relating to the Status of Refugees (1951)[1] and the Protocol Relating to the Status of Refugees (1967).  In years 1997–2013 Estonia received 446 applications for asylum; 93 persons were granted international protection and permission for family reunification.

Political and institutional developments

In 2014 and 2015 guaranteeing the rights of unaccompanied minors in asylum proceedings has been organised better – for example, since 2014 the partner to the Estonian National Social Insurance Board is the Estonian SOS Children’s Villages Association, with whom there is a contract under public law for offering the service of replacement home for unaccompanied minors.

In 2014 and 2015 the Chancellor of Justice made the Police and Border Guard Board two proposals relating to enabling communication for detainees at the detention centre. On 19 April 2014 the Chancellor of Justice made the proposal to remove the infringement regarding opportunities for living together and spending time together for unmarried partners at the detention centre. The Chancellor of Justice pointed out that a man and a woman in a sustainable relationship must be considered family members and when possible unmarried partners should be accommodated together at the detention centre.[2] Neither did the Police and Border Guard Board follow the Chancellor of Justice’s earlier recommendations about enabling single women detained on the women’s floor to communicate with other persons at the centre, manly with their unmarried partners.[3] The Chancellor of Justice is of the view that the activity of the Police and Border Guard Board in so far as it did not enable detained unmarried partners to communicate and spend time together at the detention centre, was not lawful.

The 2015 proposal came about from the fact that a person was not enabled to meet their unmarried partner at the detention centre. The Chancellor of Justice emphasized that enabling meetings may be necessary in order to guarantee the person’s fundamental right to inviolability of family and private life.[4] The Chancellor of Justice was of the opinion that the activity of the Police and Border Guard Board in forbidding the meetings was unlawful and unconstitutional.

On May 12th and 14th of 2014 the advisers to the Chancellor of Justice carried out a verification visit at the Vao Accommodation Centre for Asylum Seekers.[5] The Chancellor of Justice recommended the accommodation centre, after the arrival of the asylum seeker, carry out an initial medical examination, conclude a contract with the family physician for providing health services for the inhabitants of the centre, organise interpretation into an understandable language upon providing the health services, and if possible, include a professional interpreter, cover the children’s dental treatment expenses, organise the service of psychological counselling at the accommodation centre on site, and organise language learning in a more effective way.

The move of the accommodation centre from Illuka rural municipality in Jaama Village to Väike-Maarja rural municipality in Vao village in 2014 should also be pointed out as progress, since the access to services necessary for the asylum seekers is much better there. Also, in 2015, upon statements of a person about refugees and displaced persons in social media, misdemeanour procedure was initiated on the section of the Penal Code to do with incitement to hatred.

Legislative developments

On 4 July 2014 an amendment was made to the Act on Granting International Protection to Aliens, which came into force 1 January 2015, changing the amount of aid given to family members who are minors. When earlier the second family member and all the following members received 80% of the aid given to the first family member, then as of 1 January 2015 each under age member of the family receives aid equal to that of the first family member.

One of the most remarkable developments of 2015 was the provision of the Act on Granting International Protection to Aliens that came onto force on April 2nd, according to which the applicant of international protection is allowed to work in Estonia, if within six months of submitting the application no decision about the application has come into force for reasons not to do with him or her. The applicant of international protection may work in Estonia until the end of proceedings for his or her application, including during contestation of the decision of refusal to give international protection. The amendment to the act, which the refugee organisations lobbied for is remarkably more favourable towards asylum seekers. The only problem area in realising this right is the inability of asylum seekers, who have no documents, to open a bank account, which limits their access to labour market. Additionally, on 1 August 2015 the provision of the Act on Granting International Protection to Aliens came into force, according to which the Police and Border Guard Board will send foreigners who have been granted international protection to participate in an adaptation programme.

Court practice

Most of the court practice has to do with detention of asylum seekers, there is a lot less court practice related to contestation of refusal to grant international protection. Asylum seekers are often detained referring to the danger that they may abscond. The risk of absconding has not been defined in Estonian legislation, therefore it is hard to dispute in court. The presence of risk of absconding is reasoned with that the person has crossed the border illegally when coming to Estonia or has passed through several safe countries in order to reach Estonia. Smugglers are used more and more in order to reach safe countries, which is often accompanied by irregular border crossing.

Tartu Circuit Court has said that if an asylum seeker has no identity document or other documents, which is why it cannot be claimed that the person is who he says he is, then bases are present according to which the asylum seeker can be detained for the unavoidable necessity to identify the person, to verify or find out his citizenship.[6] Tartu Circuit Court has also stated that if it has been reasoned that the person wishes to abuse the procedure by applying for asylum and delay his expulsion, then there is reason to believe the person has submitted the application for asylum in order to delay his obligation to leave or avoid being deported.[7]

In the beginning of 2015 the Supreme Court made public the court rulings of the Administrative Law Chamber regarding placing two Belorussian and one Syrian asylum seeker at the detention centre.[8] The Chamber found that placing the asylum seekers at the detention centre is justified if risk of absconding has been detected. Also, appropriate reasons for detention are, for example, destruction of evidence or risk of influencing witnesses. The Chamber pointed out that the asylum seeker ought to be released immediately as soon as the basis of detention cease to exist. Otherwise the applicant has the right to apply for revocation of authorisation of the court or challenge the administrative authority’s failure to act in finding out the circumstances. He also has the right to claim compensation for damages caused by detention for the time that detention was no longer necessary, or for the administrative authority’s unlawful failure to act in finding out circumstances while the person was at the detention centre.

Tallinn Circuit Court made an important decision on 10 April 2015 regarding annulment of the decision to rejection an asylum application and refusal of a residence permit, denying the appeal of the Police and Border Guard Board and concurring with the Administrative Court judgment reasons.[9] The Circuit Court explained that existence of contradiction does not always mean inauthentic testimony as the person may not understand how important it is to exhaustively show all the reasons for applying for an asylum already in the asylum application. The court added that as a rule there is a significant time delay between asylum application and the events that caused the application, which is why the person’s memories may be unclear and distorted. The Circuit Court emphasized that it is important to consider that the interviews took place via an interpreter, in this instance via two interpreters, and even in the best operation of all parties, the differences between the initial statement and what was written down were possible, also adding that these differences could possibly not be removed even by re-reading the record. The Circuit Court remarked that only significant contraventions can be decisive.

Statistics and surveys

117 men and 40 women applied for international protection in Estonia in 2014; in 2015 (as of 30.09.2015) 124 men and 66 women did the same. The largest number of asylum seekers (from 01.01.2014 until 30.09.2015) have come from Ukraine (136), Russia (31), Sudan (31) and Syria (21). In 2014 refugee status was given to 20 persons (2 from Bangladesh, 4 from Syria, 7 from Sudan, 4 from Kosovo, 2 from Palestine, 1 from Russia), nobody was granted subsidiary protection. In 2015 (as of 30.09.2015) refugee status was given to 16 persons (10 from Sudan, 6 from Ukraine) and 40 persons were granted subsidiary protection (38 from Ukraine, 1 from Yemen, 1 from Russia). In 2014 residence permit for family reunification was given to 3 persons, and 18 persons in 2015 (as of 30.09.2015).

Good practices

As a result of verification visit to the accommodation centre carried out by advisers to the Chancellor of Justice on May 12th and 14th of 2014 the good practices were noted to be the open and helpful attitude of workers at the accommodation centre towards the residents of the centre, organisation of English language lessons for asylum seekers and the contribution of the centre and the NGOs in creating opportunities for asylum seekers in spending their free time.[10] Donations were collected in the course of the “Ukraina heaks!” (for Ukraine) campaign initiated in 2014 by three Estonian NGOs, helping people who had suffered and fled from their homes because of the Ukraine conflict.[11] The campaign is still ongoing, as is providing the help.

In 2015 the movement Sõbralik Eesti (friendly Estonia) was created, promoting tolerance through their activities. Sõbralik Eesti is a movement that started in civil initiative, uniting people and undertakings that wish to keep the state helpful and open. On 6 September 2015 the “Sõbralik Eesti” support concert took place, with national dishes’ areas and several well-known people making speeches inviting people to be more open and tolerant.

Another good example of a good practice is the yearbook of the NGO Estonian Refugee Council, which was published on 24 March 2015 for the first time, analysing Estonian refugee policy and the system for accepting refugees in detail.[12]

Noteworthy public discussions

The biggest public discussion of 2015 arose in the summer in relation to the proposed European Commission action plan on migration. Several groups (including Facebook groups) arose in relation to the topic, which were against refugees or mass immigration, and the content context and calls were (and still are) at times racist. Fear and lies have also been created by speeches of politicians – for example, Margus Tsahkna, the Minister of Social Protection and chairman of Pro Patria and Res Publica Union, wrote an opinion piece in August of 2015 on preservation of Estonian culture in the face of current immigration problems, remarking that: “The fact that the police in Sweden is not allowed to enter certain areas for their safety gives reason to worry. The talk that it doesn’t endanger us cannot be taken seriously.”[13] The press officer for Swedish police later refuted this statement. Sõbralik Eesti, Delfi and Eesti Päevaleht in cooperation carried out discussion marathons on the topic of refugees at the end of 2015, where sceptics’ questions were responded by specialists; and opinion pieces were also published.

Trends

In 2014 and 2015 several asylum seekers who had crossed the Russian-Estonian border irregularly were punished pursuant to criminal procedure, or by having to make a payment to public revenues. This practice has not been altered, although the UNHCR has condemned it. Access to kindergarten placements is complicated for the asylum seekers at the accommodation centre because of their financial situation. As the asylum seekers staying at the accommodation centre are not registered there as residents, then they should pay a larger kindergarten fee than the locals whose place of residence is registered in Väike-Maarja rural municipality. However, this fee is more than the asylum seekers can afford. Even though each year the Estonian Human Rights Centre has emphasized the importance of publicity campaigns on refugees there was been no systematic activity on this topic. The level of awareness on this topic is low, if not fearmongering and creating stereotypes.

On 1 July 2015 the refugee legal aid clinic with the Estonian Human Rights Centre folded as the Ministry of Internal Affairs decided not to announce the previously planned competition for guaranteeing the service of early legal counselling for asylum seekers from July on. Since 1 October 2015 the state legal aid in regards to international protection proceedings and/or detention is provided to asylum seekers by six lawyers of law offices from LMP and LEXTAL, who provide legal aid in administrative proceedings as well as administrative court proceedings.

Recommendations

  • Consider and implement the recommendations of verification visit to the accommodation centre carried out by the Chancellor of Justice on May 12th and 14th of 2014, as well as the proposal of 29 April 2014 and of 30 March 2015.
  • Carry out publicity campaigns about refugees, thereby raising the public’s awareness.
  • Enable the asylum seekers a kindergarten placement and fee on the same grounds as registered residents.
  • Do not place asylum seekers at the accommodation centre on the assumption that the person will abscond, since he has entered the country irregularly.
  • Create a regular information exchange and cooperation between the Ministry of Interior Affairs, the Ministry of Social Affairs and NGOs working with refugees in order to create mutual trust and facilitate solutions based on coproduction.[14]

[1] Convention relating to the Status of Refugees (1951) – State Gazette RT II 1997, 6, 26.

[2] Ettepanek rikkumise kõrvaldamiseks [Proposal to remove infringement]. Kinnipidamiskeskuses elukaaslaste koos elamise ning ajaveetmise võimaldamine [Enabling living and spending time together for unmarried partners at the detention centre]. P 4. 29.04.2014. Available at: http://oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_ettepanek_rikkumiste_korvaldamiseks_kinnipidamiskeskuses_elukaaslaste_koos_elamise_ning_ajaveetmise_voimaldamine.pdf.

[3] Ibid. P 1.

[4] Ettepanek rikkumise kõrvaldamiseks [Proposal to remove infringement]. Kinnipidamiskeskuses kokkusaamise võimaldamine [Enabling meeting at the detention centre]. 30.03.2015. Available at: http://oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_ettepanek_rikkumise_korvaldamiseks_kinnipidamiskeskuses_kokkusaamise_voimaldamine.pdf.

[5] 12.05.2014 ja 14.05.2014 kontrollkäik Varjupaigataotlejate Majutuskeskusesse [verification visit at the Accommodation Centre for Asylum Seekers]. Available at: http://oiguskantsler.ee/sites/default/files/field_document2/kontrollkaigu_kokkuvote_varjupaigataotlejate_majutuskeskus.pdf.

[6] Tartu Circuit Court ruling of 29.11.2013 no. 3-13-2162, Tartu Circuit Court ruling of 03.12.2013 no. 3-13-2163.

[7] Tartu Circuit court 18.03.2014 administrative case no. 3-13-2470.

[8] 29.01.2015 Administrative Law Chamber of the Supreme Court rulings in cases no. 3-3-1-52-14 and 3-3-1-48-14; 03.02.2015 Administrative Law Chamber of the Supreme Court ruling in case no 3-3-1-56-14.

[9] Tallinn Circuit Court judgment of 10.04.2015 in administrative case no. 3-13-1596.

[10] 12.05.2014 ja 14.05.2014 kontrollkäik Varjupaigataotlejate Majutuskeskusesse [12.05.2014 and 14.05.2014 verification visits at the Accommodation Centre for Asylum Seekers]. Pages 9-10.

[11] NGO Estonian Refugee Council. More than 13,500 euros have been gathered for the aid of Ukrainian people in the course of the campaign „Ukraina heaks!“. 04.11.2014. Available at: http://www.pagulasabi.ee/ukraina-humanitaarabi-programm.

[12] NGO Estonian Refugee Council. Varjupaiga aastaraamat 2014 [Refugee yearbook 2014]. 23.03.2014. Available at: http://www.pagulasabi.ee/varjupaiga-aastaraamat-2014.

[13] Mellik, J. „Rootsi politsei: Tsahkna jutt on väärtõlgendus.“ [The Swedish police: Tsahkna’s words are a misinterpretation] Postimees. 17.08.2015. Available at: http://maailm.postimees.ee/3297041/rootsi-politsei-tsahkna-jutt-on-vaartolgendus.

[14] Delfi. Eesti pagulasorganisatsioonid pöördusid rahastamisküsimuses peaministri poole [Estonian refugee organisations turned to the Prime Minister with the question of funding]. 02.06.2015 Available at: http://www.delfi.ee/news/paevauudised/eesti/eesti-pagulasorganisatsioonid-poordusid-rahastamiskusimuses-peaministri-poole?id=71612805.


Author

  • Anni Säär alustas Eesti Inimõiguste Keskuses tööd praktikandina 2011. aasta septembris. Alates 2012 kuni 2917 töötas Anni keskuses pagulasvaldkonna õiguseksperdina. Lisaks annab Anni Tallinna Tehnikaülikoolis loengut „Internetis toimijate õigused, kohustused ja vastutus“. Annil on magistrikraad õigusteaduses.

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