12 - chapter

Rights of refugees and asylum seekers

Author: Anni Säär

2015 saw a rapid increase in asylum seekers in the European Union. According to the statistics, for the first time, the number of asylum seekers exceeded 1.2 million, most of whom were Syrian, Afghan and Iraqi refugees.[1] In comparison to 2014 the number of asylum seekers increased by more than half – the number of Syrian asylum seekers nearly doubled, the number of Afghan asylum seekers quadrupled and the number of Iraqi asylum seekers increased nearly seven-fold.[2] All this influenced developments for 2016 and 2017 – Estonia pledged to relocate and settle in Estonia 550 asylum seekers from Italy and Greece within two years (2016–2017). 136 asylum seekers were relocated and settled in Estonia from 2016 until 30 June 2017. An additional 20 asylum seekers were relocated to Estonia from Turkey. Estonia has been providing international protection since 1997 when it acceded to the Convention relating to the Status of Refugees (1951)[3] and the Protocol Relating to the Status of Refugees (1967). In the years 1997–2016 Estonia has received 957 applications for asylum, 326 persons were granted international protection.[4]

Political and institutional developments

On 9 September 2015 the European Commission in relation to the ever-increasing migration crisis, came up with a new plan to ease the migratory pressure.[5] “In addition to relocation of the 40,000 persons already in the European Union previously agreed upon among the Member States, the European Commission proposed distributing another 120,000 persons among the Member States based on obligatory quota.”[6] Resettling has to do with 20,000 persons in refugee camps outside the European Union who have been declared refugees by the UN; Estonia’s share involves relocation of 20 persons within two years. Relocation has to do with a total of 160,000 persons who are in the European Union (in Italy and Greece), but whose applications need to be processed; Estonia is ready to accept 550 asylum seekers out of these people.

On 21 November 2015 an application to check the activity of asylum seekers’ accommodation centre in guaranteeing their safety was submitted to the Office of the Chancellor of Justice by an asylum seeker staying at Vao Accommodation Centre. The Office of the Chancellor of Justice came to the conclusion that the action of the Accommodation Centre was indicative of readiness to solve the situation that had arisen quickly and decisively and their activity in guaranteeing safety had been lawful.[7] The statement explained that: “the Accommodation Centre for Asylum Seekers simultaneously contains people of various cultural, language and religious backgrounds. The situation of people staying at the centre has to be considered as well, as lack of certainty regarding the asylum proceedings’ decision and an unstable future make matters more tense. Therefore, it is understandable that there may be disputes, friction and conflicts among the people staying at the accommodation centre. The conflict cannot always be solved by changing the room or one’s roommates.”

On 12 September 2016 the Constitutional Committee discussed the Riigikogu decision on holding a referendum for establishing a quota for beneficiaries of international protection (229 OE) and the draft act submitted by the Conservative People’s Party of Estonia on holding a referendum regarding European Union immigration redistribution plan in order to stop Estonia’s participation in the refugee redistribution mechanism. The draft act 229 OE prescribed holding a referendum on basic principles of granting international protection to aliens, that Republic of Estonia would set a quota of people it offers international protection to each year. Neither the Riigikogu decisions 229 OE nor the draft act submitted by the Conservative People’s Party of Estonia received the necessary support.

It should be considered progress that in addition to the accommodation centre in Vao, renovation works at a new accommodation centre in Vägeva village in Jõgevamaa were finished in summer of 2016, and, for the time being, five families have moved in.[8] Vägeva accommodation centre is only meant for families, and single asylum seekers are not placed there. Renovations were carried out in both centres in 2016, in order to increase their capacity.[9]

Beneficiaries of international protection have the right to apply for subsistence benefit on the same basis as other persons living in Estonia permanently or temporarily, and family allowance is paid on a similar basis as to persons who have the right to live in Estonia on a permanent or temporary basis if the family lives in Estonia.[10]

Legislative developments

In 2016–2017 amendments were made to the Act Granting International Protection to Aliens (VRKS) on three occasions – on 1 January 2016, on 1 May 2016 and in 18 January 2017. It can be pointed out that as of 1 May 2016 the refugees are obliged to learn Estonian language. According to the VRKS the beneficiaries of international protection of working age (from 18 until the age of old age pension) have the obligation to take part in Estonian language studies and fulfilment of this obligation is taken into consideration when deciding whether to extend their residence permit or issue them a new residence permit.

One of the greatest developments of 2016 was the entering into force of the VRKS provision defining the final decision. The final decision states how long a person is considered to be an asylum seeker. According to the provision a final decision is: a) a decision made by the Police and Border Guard Board with regards to the dismissal of an application or revocation of international protection, which has not been contested in an administrative court during the time-limit for an appeal; b) a decision of the Police and Border Guard Board with regard to the dismissal of an application or revocation of international protection, the appeal against which has been dismissed by the administrative court; or c) a decision of the Police and Border Guard Board, including the decision arising from the respective guidelines of the administrative court, to recognise an applicant as a refugee or a person eligible for subsidiary protection and grant international protection to him or her.

The amendment that came into force on 1 May 2017 also contained provisions on resettlement and relocation and a provision giving the Police and Border Guard Board the right to establish a list of safe countries of origin.

Court practice

2016 and 2017 contributed many significant court judgments regarding detention, definition of safe third country, state legal aid and definition of final decisions. In its 3 March 2016 resolution the Administrative Law Chamber conceded (in case no 3-3-1-14-16) that detention of asylum seekers at the detention centre exceeding 18 months is disproportionate in any case. This is an important case stating maximum time limits on detention of asylum seekers. There was no maximum time limit on detention of asylum seekers before. The Supreme Court stated that length of detention in case of asylum proceedings and expulsion proceedings cannot be added – the person cannot be detained for longer than 18 months in either proceeding. The Supreme Court has specified in its 16 June 2017 decision in case no 3-3-1-24-17 that although detention that is based on VRKS and VSS (Government of the Republic Act) cannot be added, the long duration of repeated detention can make detention disproportionate. The court added that the Police and Border Guard Board cannot refrain from assessing the person’s previous behaviour in making the prognose decision and that the Police and Border Guard Board and courts have the duty to assess the threat of escape while detaining aliens in each single case.

In the period of 2016–2017 there were also several applications in process in courts regarding defining Russia as a safe third country. The courts (Tallinn Administrative Court, Tallinn Circuit Court) came to the conclusion that Russia cannot automatically be considered to be a safe third country. Tallinn Administrative Court pointed out in its administrative matter no 3-16-1087 that it is not enough that a state has ratified the Refugee Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms, the state must also follow them in practice; the state must also actually guarantee proper asylum proceedings (in addition to establishing and implementing norms) and enable use of effective legal remedy. This has also been confirmed by the Circuit Court, pointing out in its 14 November 2016 administrative matter no 3-16-1061 that it will stick to its statement made in 18 August 2016 in case no 3-15-2702 that:

“VRKS’s section 8 subsection 2 clauses 2–4 cannot be interpreted in a way that accession to Refugee Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms and regulation of asylum proceedings would suffice. The VRKS’s section 8 subsection 2 clauses 2–4 as well as Directive 2013/32/EU Article 39 section 2 indicate that in defining a safe third country it is important to make sure that the country actually follows the provisions of the Refugee Convention. Such interpretation is in concordance with the general principles of providing international protection and the purpose of protecting people’s rights. Mere existence of declarations and ratification of international treaties guaranteeing basic rights is not enough to guarantee suitable protection from threat of abuse, if trustworthy sources state authorities’ activities or activities tolerated by them, which clearly contradicts the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see ECtHR 28 February 2008 judgment in case no 37201/06: Saadi v. Italy, p 147; Court of Justice 6 September 2016 judgment in case no C-182/15: Petruhhin, p 57)

An important decision regarding detention was made by the Circuit Court in its 18 August 2017 administrative matter no 3-17-1361, where among other things the court stated that the threat of the person concerned cannot be precluded (which is objectively impossible), but in order to detain that person the threat has to be reasonably big. The court added that “in order to deprive such a person (legally staying in Estonia’s territory) of liberty according to the VRKS there have to be particularly weighty reasons. Illegal arrival in Estonia and alleged inconsistencies about visited EU states do not indicate in this context the desire to escape to such an extent that strict requirements are fulfilled to detain the asylum seeker belonging among vulnerable persons.”

On 2 March 2017 the Administrative Law Chamber issued a court ruling in case no 3-3-1-54-16, which concerned many asylum seekers whose application for international protection had not been satisfied and who have appealed this decision. According to VRKS’s section 251 subsection 2 the applicant has the rights and obligation specified in this Act within the time limit for an appeal and during the judicial proceedings, including the right to stay in the territory of Estonia until the final decision is made. The Chamber pointed out that the final decision is the Police and Boarder Guard’s decision with regards to the dismissal of an application or revocation of international protection, the appeal against which has been dismissed by the administrative court. It is important to remark here that the decision doesn’t have to have come into force.

The Chamber emphasised that the final decision ends the proceedings for international protection but does not preclude the person’s general right to appeal or to apply for implementation of legal remedies. According to VRKS the person has a basis for stay in Estonia until the final decision is made, however, the court may allow the person to stay in Estonia during further judicial proceedings as well. The Chamber explained that after the Administrative Court’s decision was made dismissing the appeal of the decision of the Police and Border Guard Board, the person no longer has the status of applicant for international protection.

In cooperation with the Police and Border Guard Board two court cases regarding persons who were represented by the Estonian Human Rights Centre were settled, and the Police and Border Guard Board agreed to make a decision on the substance of the case regarding relocated asylum seekers right away, and not a decision of subsidiary protection, which would have to be reviewed a year later.

Statistics and surveys

111 persons applied for international protection in Estonia in 2016 (27 of them were subsequent applications and 22 applications were to live with a family member); in 2017 (as of 31 August 2017) there were 80 applicants (6 of them subsequent applications and 14 applications to live with a family member). The largest number of asylum seekers (from 1 January 2016 until 31 August 2017) have been from Ukraine (27) and Russia (25). 44 persons were granted refugee status in 2016 (9 from Russia, 9 from Iraq, 7 from Afghanistan, 5 from Sudan, 3 from Georgia, 3 from Sri Lanka, 2 from Pakistan, 2 from Palestine, 1 from Benin, 1 from Gambia, 1 from Nigeria, 1 from Syria); 21 persons from Ukraine were granted subsidiary protection in 2016. In 2017 refugee status was granted 6 persons (6 from Georgia, 2 from Syria, 1 from Turkey and 1 from Russia) and 6 persons were granted subsidiary protection (5 from Ukraine, 1 from Sudan). In 2016 residence permit for family reunification was given to 16 persons, and in 2017 (as of 31 August 2017) to 20 persons.

An important study worth mentioning is the UNHCR’s 27 January 2017 study “Integration of refugees in Estonia: Participation and Empowerment”, which introduces and discusses integration of refugees in Estonia.[11]

On 6 December 2016 the public opinion poll was published revealing that Estonia’s residents’ general attitude towards migration and refugees has significantly improved within a year.[12] 75% of the participants believed that people have the right to freely migrate and 56% favoured accepting people who are in trouble. The same figures from June of 2015 were 63% and 43% respectively. According to the poll, 30% of the general population was extremely critical of refugees in 2016. In 2015 this figure had been nearly 40%.

Good practices

In order to increase effectivity of communication and spread information the Government of the Republic created a web page providing information about refugee issues; it also includes suitable terms.[13]

An example of a good practice is the Vao kitchen, which offers catering service with the aid of asylum seekers. The goal is to use food to create connections between locals and asylum seekers. The cooks there are rotated and food has been offered from Sudanese, Ukrainian, Albanian, Georgian, Dagestan, Iranian as well as Sri Lankan kitchens.[14]

Other examples of good practices are the activities of the Estonian Refugee Council, and the support person service provided by Johannes Mihkelson Centre and the Estonian Refugee Council. With the help of the International Organization for Migration the persons wishing to voluntarily return to their country of origin can do so more easily and receive a small additional financial contribution.

The Estonian Human Rights Centre continued providing legal aid to asylum seekers in cooperation with the UNHCR and on their funding. Through this several asylum seekers were also represented in judicial proceedings.

Trends

Occasionally the asylum seekers who have crossed the Russian-Estonian border irregularly have been punished by having to pay a fine to public revenues. This practice is not consistent, but it is applied once in a while.

Access to kindergarten placements is still complicated for asylum seekers at the accommodation centre because of their financial situation. Since the asylum seekers staying at the accommodation centre are not registered there as residents they have to pay a higher kindergarten fee than the locals whose place of residence is registered in Väike-Maarja rural municipality. As has already been stated in the previous report – this fee is more than the asylum seekers can afford.

Estonian Human Rights Centre has repeatedly received complaints from asylum seekers that they are provided poor quality legal aid or none at all during the asylum application process and the subsequent judicial proceedings.

Applicants for international protection are generally placed at the detention centre for up to two months, until the bases of detention cease to exist. In practice, it doesn’t seem to be the case that bases of detention are evaluated sufficiently effectively in an ongoing manner, which is why, when the court has given permission to detain a person for up to two months the Police and Border Guard Board detain the person to maximum extent or a few days less.

Recommendations

  • Enable the asylum seekers a kindergarten place and fee on the same grounds as registered residents.
  • Place asylum seekers in the detention centre as a last resort if alternatives are not available.
  • Evaluate during detention whether the bases for detention for the asylum seeker have ceased and do not mandatorily detain persons to the maximum extent.
  • Offer asylum seekers good quality legal aid.

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[1] Eurostat news release 44/2016, 04.03.2016. Available at: http://ec.europa.eu/eurostat/documents/2995521/7203832/3-04032016-AP-EN.pdf/

[2] Ibid.

[3] Pagulasseisundi konventsioon (1951) [Convention relating to the Status of Refugees]. State Gazette II 1997, 6, 26.

[4] Police and Border Guard Board. Rahvusvahelise kaitse statistika 1997–2016 [Statistics on international protection]. Available at: https://www.politsei.ee/dotAsset/218156.pdf

[5] Government of the Republic. Pagulasküsimus [The refugee issue]. Available at: https://www.valitsus.ee/et/pagulased

[6] Ibid.

[7] Õiguskantsleri 07.01.2016 seisukoht varjupaigataotlejate majutuskeskuses turvalisuse tagamise osas [Chancellor of Justice’s 7 January 2016 opinion on guaranteeing safety of asylum seekers at accommodation centre]. Available at: http://www.oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_seisukoht_oigusrikkumise_puudumise_kohta_turvalisuse_tagamine_varjupaigataotlejate_majutuskeskuses.pdf

[8] ERR. Varjupaigataotlejad kolitakse Vaolt Vägevale [Asylum seekers are moved from Vao to Vägeva]. 21.06.2016. Available at: http://www.err.ee/562110/varjupaigataotlejad-kolitakse-vaolt-vagevale

[9] Helen Mihkelson (Postimees). Ettevõte saab Vao ja Vägeva majutuskeskuste renoveerimiseks 350 000 eurot [A company is to receive 350,000 euros to renovate Vao and Vägeva accommodation centres]. 29.02.2016. Available at: http://www.postimees.ee/3600147/ettevote-saab-vao-ja-vageva-majutuskeskuste-renoveerimiseks-350-000-eurot

[10] Ministry of the Interior. Teenused ja toetused pagulastele [Services and benefits for refugees]. Available at: https://www.sm.ee/et/teenused-ja-toetused-pagulastele

[11] Available at: https://www.valitsus.ee/sites/default/files/content-editors/failid/unhcr-print_version_estonia-integration_mapping.pdf

[12] Government of the Republic. Eesti elanike üldine suhtumine migratsiooni ja pagulastesse on oluliselt paranenud [Opinion of Estonian population towards migration and refugees significantly increased]. 06.12.2016. Available at: https://www.valitsus.ee/et/uudised/eesti-elanike-uldine-suhtumine-migratsiooni-ja-pagulastesse-oluliselt-paranenud

[13] Government of the Republic. Pagulasküsimus [The refugee issue]. Available at: https://www.valitsus.ee/et/pagulased

[14] Merilin Pärli (ERR). Vao köök toob varjupaiga elanikud eestlaste sekka [The Vao kitchen brings inhabitants of the shelter to Estonians]. 04.09.2017. Available at: http://www.err.ee/616524/vao-kook-toob-varjupaiga-elanikud-eestlaste-sekka

 


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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