10 - CHAPTER

Rights of refugees and asylum seekers

Authors: Liina Laanpere, Uljana Ponomarjova

Key topics

  • The government decided to end participating in resettlement and relocation programmes for persons seeking international protection.
  • The number of asylum seekers arriving in Estonia is constantly small, fewer than a hundred persons sought protection last year.
  • The Police and Border Guard has repeatedly refused to extend the residence permit of persons receiving international protection because of the changed situation in countries of origin.

Political and institutional developments

The number of asylum seekers arriving in Europe has significantly decreased in comparison to the 2015–2016 migration crisis level.[1] Despite that the EU Member States still lack an agreement on sharing responsibility, especially regards to asylum seekers and migrants who have been rescued from the Mediterranean, which has contributed to the increase of percentage of deaths.[2] In response to the Member States’ plan to create a temporary scheme for relocating asylum seekers the Minister of the Interior Mart Helme has confirmed that Estonia is not taking part in any discussions over the distribution mechanism.[3]

In the beginning of 2018, the government considered Estonia’s obligations completed in the framework of European Union’s 2015 migration plan for resettlement and relocation. Estonia received 206 recipients of international protection on the basis of the migration plan.[4] The government agreed to resettle a total of 80 persons from Turkey between 2018 and 2019 under the second migration plan. In 2018 not a single person arrived in Estonia based on that plan, in 2019 a seven-member Syrian family was resettled from Turkey.[5]

According to the coalition agreement of the parties that came into power after the 2019 elections, the government is going to pursue a strict immigration policy, increase control over illegal immigration and disagree with the mandatory refugee quotas.[6] According to the coalition agreement Estonia is to continue building Estonia’s land border.[7]

In December 2018 the detention centre for asylum seekers’ and persons to be expelled that had been located in Harku moved to a new location in Rae rural municipality. The new and larger capacity detention centre is located in the same area as the Tallinn house of detention, but the asylum seekers and persons to be expelled are separated from detainees of the house of detention.[8] Advisers to the Chancellor of Justice checked the centre on 29 April 2019 and highlighted a number of problems, including lack of opportunities for spending leisure time and communicating with loved ones, shortage of interpreters and problems with catering.[9]

Legislative developments

In 2018–2019 only minor amendments were made to the Act Granting International Protection to Aliens (VRKS), which specified provisions on processing of personal data.

Greater substantial changes are planned in the draft amending the Obligation to Leave and Prohibition of Entry Act (VSS) and the VRKS, which the Ministry of the Interior submitted on 3 June 2019 to the government for approval. The draft contains special provisions, which apply in the event of emergency due to mass immigration (when at least 3000 foreigners in small groups consisting of several dozens of people arrive in Estonia). Among other things, the special provisions allow to detain the arriving foreigners without the permission of the administrative court for a maximum of seven calendar days at a place determined by the Police and Border Guard Board. The Chancellor of Justice has stated that this amendment needs a supplementary analysis, as according to the Constitution no one can be held in custody for more than 48 hours without the court’s permission, and that the meaning of this constitutional guarantee cannot be underestimated in the event of any deprivation of liberty.[10]

Court practice

On the topic of asylum in 2018–2019 important judgments have been passed on detention, religion-based persecution and vulnerability of asylum seekers.

On 30 January 2018 the Supreme Court made a judgment in case no 3-17-792, where it explained presumptions of law in extending the detention of asylum seekers. The Chamber emphasised that a delay, which was not caused by the applicant, does not justify continuation of detention. In application for extension of detention the Police and Border Guard must explain, which actions have been carried out in the meantime, so that the court can verify compliance with the condition of due diligence and the basis of detention.

On 19 June 2019 the Supreme Court made a judgment in case no 3-19-415, where it confirmed that the risk of absconding justifying placement in detention centre cannot be based on the fact that “there are no grounds to exclude a possible risk of absconding based on the person”. When assessing the risk of absconding of an asylum seeker the circumstances of each case must be weighed on a case-by-case basis and the necessity and proportionality of detention must be checked in each specific case. The circumstances considered to be a risk of absconding are stated in law as an exhaustive list.

In addition, in the spring of 2019 several court judgments regarding Jehovah’s witnesses applying for international protection, who had fled Russia for persecution, came into force. The Supreme Court refused to admit the Police and Border Guard’s appeals in cassation, therefore the Tallinn Circuit Court judgments confirming that the asylum seekers’ met the criteria for refugee status remained in force.[11] The court confirmed that also such activities constitute religious persecution, which infringe on the applicant’s freedom to not only practice their religion in private, but also to live openly according to their religious practice.

Tallinn Administrative Court in its 19 September 2019 judgment confirmed the importance of assessing the vulnerability of asylum seekers. The court emphasised the fact that vulnerability or special need of asylum seekers must be detected as soon as possible after submitting the application, with the help of an expert, if necessary. Carrying out procedural acts with a person who is in a mentally unstable state in a situation where the outcome of proceedings depends largely on the applicant’s explanations, the credibility of which must be assessed by the Police and Border Guard Board, is not possible until the person’s health condition is identified and, if necessary, they have received treatment. In omission of these activities the proceedings are not lawful.[12]

Statistics and surveys

95 persons applied for international protection in Estonia in 2018, 5 of these were subsequent applications and 5 were applications to settle with a family member. The largest number of applicants were from Ukraine, Russia and Egypt. In 2019 (as of 30 September) there were 87 persons seeking asylum, 3 of these subsequent applications and 13 applications to settle with a family member. The main countries of origin that year were Russia, Turkey and Ukraine. In 2018 refugee status or subsidiary protection was granted to 35 persons, 18 of them were displaced in framework of the first migration plan. In 2019 (as of 30 September) 31 persons have been granted international protection, 7 of them were displaced in the framework of the second migration plan.

In the summer of 2019, the UN High Commissioner for Refugees (UNHCR) published a survey called “Access to legal aid for asylum-seekers in Estonia”. The survey provides and overview of access to legal aid for asylum seekers in Estonia, highlights the problem areas and makes recommendations for changes in practices and laws. The survey emphasised the need to create a realistic opportunity for asylum seekers to receive legal aid at border crossing points, identify vulnerable applicants, who would generally need additional legal aid early, provide more extensive legal counselling at detention and accommodation centres and ensure the applicants have an opportunity to effectively communicate with lawyers providing state legal aid.[13]

Good practices

An example of a good practice in integration is the Estonian Refugee Council’s social enterprise „Siin & Sääl“, which helps refugees in Estonia get started in business.[14] Johannes Mihkelson Centre, International House Tartu and International Organization for Migration also provide support for refugees in integration. The Estonian Human Rights Centre, with UNHCR’s support, continues to provide legal aid to asylum seekers, and since the beginning of 2018 also to persons who have been granted international protection.

In addition, the volume of language training offered to persons that have been granted international protection was increased from the previous 100 Estonian language lessons to 300 Estonian language lessons in the beginning of 2018.[15]

Noteworthy public discussions

Greater public discussion took place in autumn of 2018 over the UN migration agreement Global Compact for Migration. The parties preparing for elections took advantage of the migration agreement for attention grabbing, sowing confusion over how legally binding the declarative document is[16] and sharing falsities about its contents.[17] The media called the agreement the migration agreement as well as a „refugee agreement“.[18] The government did not come to an agreement over the migration agreement and Riigikogu approved signing it on 26 November 2018.[19] In reality, the migration agreement does not address the rights of refugees or asylum seekers. The UN Global Compact of Refugees is a separate declaration, the statements of which the Estonian government approved already on 22 March 2018.[20]

Trends

In 2019 the Police and Border Guard has repeatedly made decisions to declare the refugee status or subsidiary protection of persons who have been granted international protection in Estonia invalid on the basis that in the estimate of the Board the situation in countries of origin have sufficiently improved to allow the return of refugees.

The inconsistent practice of punishing asylum seekers for irregular border crossing with a monetary payment to public revenues continued in 2018. On one occasion criminal proceedings were initiated, which were concluded when the accused were recognised as refugees. Punishing refugees and asylum seekers for irregular border crossing contradicts international law.[21]

In the past year the Estonian Human Rights Centre has received several complaints regarding access to territory and the asylum system. Asylum seekers have described situations at border crossing points, where the Police and Border Guard Board officials have tried to convince them to return to their country of origin instead of applying for protection, or have initially refused to accept an asylum application.

Recommendations

  • Reconsider the government’s position not to participate in asylum seekers’ resettlement and relocation programmes
  • Assess vulnerability / special needs of asylum seekers systemically as a part of asylum proceedings
  • Improve availability of legal aid to asylum seekers according to recommendations set out in the UNHCR report
  • Stop punishing asylum seekers for irregular border crossing
  • Ensure asylum seekers immediate access to the asylum system at border crossing points

Case description

A married couple belonging to a religious minority group fled their home country after repeated death threats. Due to imminent threat they were unable to apply for visas and were forced to use the help of smugglers. The smugglers gave the couple false information, brought them to a forest near the Russian-Estonian border and confirmed that border guards were a short walk away. The persons walked through the forest for hours, upon seeing the first border guards they immediately applied for an asylum. They were fined for irregular border crossing and placed in a detention centre where they were kept for nearly two months despite the fact that the woman was pregnant. The family has by now been granted a refugee status in Estonia, and they have successfully contested the fine for irregular border crossing with the help of the Estonian Human Rights Centre.


[1] Eurostat. 2019. Asylum applications (non-EU) in the EU-28 Member States, 2008–2018.

[2] UNHCR. 2019. Desperate Journeys: Refugees and migrants arriving in Europe and at Europe’s borders.

[3] Mälberg, M. 2019. Mart Helme: Eesti ei osale Macroni ja Conte rändearutelus [Mart Helme: Estonia will not participate in Macron’s and Conte’s migration discussion], ERR, 19 September 2019.

[4] ERR. 2019. Eesti esimene pagulaskvoot sai täis [Estonia met its first migration quota], 14 March 2019.

[5] ERR. 2019. Seitsmeliikmeline kvoodipagulaste pere jõuab Türgist lähiajal Eestisse [A family of seven of quota refugees to arrive in Estonia from Turkey in the near future], 23 January 2019.

[6] Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõted 2019-2023 [The basic principles of the Centre Party’s, EKRE’s and Isamaa’s government coalition for 2019–2023].

[7] Ibid.

[8] Rajavee, A. 2018. Harku kinnipidamiskeskus liidetakse Tallinna arestimajaga [Harku detention centre to be added to Tallinn house of detention], ERR, 14 March 2018.

[9] Chancellor of Justice. Kontrollkäik Põhja prefektuuri korrakaitsebüroo kinnipidamiskeskusesse [Review visit to detention centres of North prefect’s bureau of maintenance of law and order], 23 August 2019.

[10] Chancellor of Justice. Arvamus nr 18-2/170466/1701575 vastuseks Siseministeeriumi 17.03.2017 kirjale nr SIM/17-0364/-1K, 1-6/1382-1 [Opinion no 18-2/170466/1701575 in response to the Ministry of the Interior’s 17 March 2017 letter no SIM/17-0364/-1K, 1-6/1382-1], 10 April 2017.

[11] Tallinn Circuit Court’s 27 September 2018 judgment in administrative case no 3-18-721; Tallinn Circuit Court’s 4 September 2018 judgment in administrative case no 3-18-388.

[12] Tallinn Administrative Court’s 19 September 2019 judgment in administrative case no 3-19-990

[13] UNHCR. 2019. Access to Legal Aid for Asylum-Seekers in Estonia.

[14] Estonian Refugee Council. Sotsiaalne ettevõte Siin & Sääl [Social entreprise Siin & Sääl].

[15] Postimees. 2017. Uuest aastast suureneb pagulastele antava keeleõppe maht [Volume of language lessons provided to refugees to increase next year], 09 November 2017.

[16] ERR. 2018. Reinsalu: ÜRO rändelepe võib osutuda siduvaks [Reinsalu: UN’s migration agreement may prove binding], 14 November 2018.

[17] Kelomees, H. 2018. Faktikontroll: Kas EKRE valetas jälle ÜRO rändeleppe „tsensuuri“ ja „meelsuskontrolli“ puudutava osas?, Eesti Päevaleht [Fact check: did EKRE lie about UN Compact re censorship and views?], 29 November 2018.

[18] ERR. 2018. Mikser lubas pagulasleppe teema arutelu valitsuses ja väliskomisjonis [Mikser agreed to discuss refugee agreement in goverment and in Foreign Affairs Committee] 11 November 2018.

[19] Postimees. 2018. Blogi ja galerii: Riigikogu kiitis ränderaamistiku avalduse heaks [Blog and gallery: Riigikogu approved migration framework statement], 26 November 2018.

[20] Kolk, A. 2018. Välisministeerium vastab Helen Häälele: ÜRO pagulasraamistik ei riiva kuidagi Eesti suveräänsust [Ministry of Foreign Affairs responds to Helen Hääl: UN migration framework in no way infringes on Estonia’s independence], Eesti Päevaleht, 18 December 2018.

[21] Pagulasseisundi konventsioon [Convention relating to the Status of Refugees] (1951) – State Gazette part II 1997, 6, 26, Article 31.


Authors

  • Liina Laanpere on omandanud õigusteaduse bakalaureusekraadi Tartu Ülikoolist ja magistrikraadi rahvusvaheliste inimõiguste alal Corki ülikoolist Iirimaal. Liina töötab Eesti Inimõiguste Keskuses pagulasvaldkonna juristina ning osaleb õiguseksperdina Euroopa Liidu Põhiõiguste Ameti uurimisvõrgustiku FRANET jaoks uuringute tegemisel.

  • Uljana Ponomarjova on omandanud õigusteaduse bakalaureusekraadi TalTechis ja töötab Eesti Inimõiguste Keskuses pagulasvaldkonna juristina. Lisaks koordineerib Uljana Võrdse Kohtlemise Võrgustikku.

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