10 - Peatükk

The rights of refugees and asylum seekers

Authors: Uljana Ponomarjova, Markus Hallang

The situation has remained the same.

Key issues

  • The number of asylum seekers arriving in Estonia has decreased by about 50%.
  • Insufficient access to Estonia itself and to asylum proceedings due to restrictions which are related to the COVID-19 pandemic.
  • Insufficient access to legal aid.

Political and institutional developments

Over the last two years, the number of asylum seekers arriving in Europe has decreased significantly. The number of applications for international protection which were filed in 2020 alone showed a decrease of 32.6% when compared to the figure for 2019.[1] The decrease in applications was related to the COVID-19 pandemic, which led to the closure of borders. The task of getting asylum seekers to a safe country was hampered by a reduction in air traffic levels and the reintroduction of border controls. In Estonia, the number of asylum seekers decreased by 52% in 2020 (covering approximately fifty applications) when compared to the figure for 2019 (covering approximately a hundred applications).[2] The year 2021 is not proving to be very much different. As of 1 September 2021, a total of fifty-four first-time applications had been submitted in Estonia, fourteen of which had been submitted by Afghan citizens who were evacuated by order of Estonia’s government. As the number of applicants had decreased significantly, Vägeva Accommodation Centre was temporarily closed at the beginning of 2021, while the Vao Centre continued to accommodate the reduced number of asylum seekers.

At the beginning of the pandemic, in 2020, access to Estonia for asylum seekers became a key issue, as there was reason to believe that closed borders and the suspension of air traffic could restrict people’s access to the asylum system. Directive 146 by the secretary general of the Ministry of Foreign Affairs, dated 3 July 2020, established a restriction which ensured that Estonian foreign missions stopped accepting visa applications if the person who was applying for a visa did not have a special permit to enter Estonia, as issued by the Police and Border Guard Board. In essence, this meant restricting access to the asylum system at a time at which people were not able to apply for visas to come to Estonia in the first place so that they could apply for international protection. On 23 November 2020, the Chancellor of Justice found that such a restriction was unlawful and should be repealed.[3]

Access to professional legal aid remains a problem for anyone who is in a detention centre (with detention centres hereinafter being referred to as a ‘KPK’, as abbreviated from the Estonian language version). Foreigners in the KPK do not have access to the general internet network; in addition they are not permitted to use personal smart devices. Also, according to the internal rules, the counsellor is not allowed to bring electronic devices to a meeting with the client. Due to this restriction, it is practically impossible to provide counselling, as there is rarely any interpreter in Estonia who speaks the detainee’s mother tongue (such as in the case of the Kurdish-Sorani translation combination). In order to communicate with the detainee and to provide legal services, it is necessary to provide translation services via the internet or telephone with the help of an interpreter who has been ordered from abroad, but the KPK does not itself provide for such an opportunity, and neither does it allow counsellors to use their electronic devices. Anyone who finds themselves in this situation is not guaranteed effective legal aid.

Legislation

In June 2020, Estonia transposed Article 18 of the ‘Return Directive’ (2008/115/EC), which clarified the rules for the detention of asylum seekers in a situation in which many more asylum seekers than usual arrive in the country. Amendments were introduced both to the ‘Obligation to Leave and Prohibition on Entry Act’ (hereinafter also referred to as the ‘VSS’), and to the ‘Act on Granting International Protection to Aliens’ (hereinafter also referred to as the ‘VRKS’). In addition to the amendment to the VSS, co-operation between the PBGB and the European Border and Coast Guard Agency is now regulated.

In 2020, an amendment to the VRKS entered into force, on the basis of which the PBGB will at least once a year review and, if necessary, update the list of safe countries of origin.

In the same year, an amendment to the law entered into force which changed the system of services being provided to unaccompanied minors. From now on, the Social Insurance Board guarantees the provision of such services. In recent years, no asylum seekers who have been unaccompanied minors have arrived in Estonia.[4] According to amendments to the law, the Social Insurance Board will also ensure that all accommodation centre tasks are fully and properly carried out from 2020.

Good practice

Under the leadership of the ‘Integration Foundation’, the LINDA web environment was created, intended for professionals who serve and advise people who are living in Estonia and who want to be able to adapt and integrate. This particular e-tool is accessible to anyone who wants it, with such availability making it possible to become acquainted with all of the support services being offered by the state, as well as to be able to view learning and distribution materials.[5]

Case law

Between 2020 and 2021, important court judgements were reached in the field of asylum, concerning an identification of a safe third country, the provision of initial protection, and asylum applications which were related to sexual orientation.

On 20 October 2020, Tallinn Administrative Court ruled in Case 3-20-1431, deciding that an applicant for international protection cannot be sent to a country from which it is not possible to apply for international protection in accordance with the Geneva Convention. In the same case, the district court found that this condition may not be unambiguous and may give rise to a reference to the European Court for a preliminary ruling.

Tallinn Administrative Court also found in administrative Case 3-20-2095 that countries from which an applicant for international protection did not arrive in Estonia cannot be defined as a safe third country, and the definition of a safe third country must presuppose that the applicant is allowed to enter into it or be readmitted there. In September 2021, these views were also confirmed by Tallinn Circuit Court in the same case.

On 5 November 2020, the Supreme Court emphasised in administrative Case 3-19-990 that, in the case of asylum applications involving sexual orientation, a stereotypical approach must not be used in assessing the applicant’s testimony, specific cultural requirements must be taken into account, and the applicant’s failure to answer certain questions cannot be considered sufficient to conclude that the applicant is not trustworthy. The court emphasised the duty of the administrative authority to assist in such matters, and found that the circuit court had erred in referring to facts which neither the PBGB nor the administrative court had imputed to the applicant in their decisions.

On 13 November 2020, the Supreme Court provided clarification for Case 3-20-349, deciding that when applying preliminary legal protection, the court must keep in mind the fact that any choice which is made should be proportionate to all participants in the proceedings. The court held that preliminary legal protection should be applied only to the extent which is necessary to protect the applicant’s rights and that, in addition to the applicant’s rights, the public interest and the rights of possible third parties should be taken into account. In addition, the court must anticipate any consequences both in terms of satisfying and rejecting an application for legal protection.

Statistics and surveys

In 2020, a total of forty-nine applications for international protection were submitted in Estonia, of which three were repeat applications and seven were applications to live with a family member. The largest numbers of applicants came from Russia, Syria, and Tajikistan. In 2021 (as of 30 September), asylum was applied for a total of fifty-six times, of which two were repeat applications and four were applications to live with a family member. The main countries of origin this year have been Russia, Afghanistan, and Belarus. In 2020, a total of twenty-two persons received refugee status and four persons received subsidiary protection. In 2021 (as of 30 September), nineteen persons have received international protection, and one person has received subsidiary protection.[6] Estonia still does not participate in the resettlement programme.

In the spring of 2021, the United Nations High Commissioner for Refugees (UNHCR) published a study entitled  The study provides an overview of the integration experiences of refugees who are living in the Baltic states, the related challenges, and the opportunities they see for improving integration. The survey found that 70% of refugees who are living in Estonia agreed that they were satisfied with life in the host country, compared to 45% of respondents in Lithuania and 21% of respondents in Latvia. Although refugees in all three countries also shared positive views on aspects such as mental and physical health, and dealing with legal documentation and children’s education, the views which were expressed regarding aspects such as employment, accommodation, and the recognition of qualifications were rather negative.[7]

Trends

In 2020, there was a tendency in the PBGB’s decisions to consider applications for international protection as being unfounded on the basis that the applicants had arrived in Estonia from a safe third country, even if the persons had not arrived directly from third countries or had last stayed there years ago.

In addition, the practice of penalising asylum seekers for irregular border crossings continued in 2020, and the centre has received a number of complaints regarding access to the asylum system. On one occasion, criminal proceedings were instituted for illegal border crossing and the person concerned was sentenced to three months in prison, despite the fact that they had expressed a wish to apply for asylum immediately after they had crossed the border. The application for asylum was accepted and the proceedings did not begin until the end of the prison sentence. The person had to request the initiation of the asylum procedure no less than three times, both orally and in writing. Punishing refugees and asylum seekers for irregular border crossings is contrary to international law.[8]

Major public debates

Major public debates were held in 2021 regarding refugees who had been evacuated from Afghanistan, and migrants from Belarus to Lithuania and Poland. In August 2021, the government decided to accept up to thirty Afghans and their family members who had cooperated with Estonia.[9] This decision was also criticised, and the number was considered both too small and too high.[10] As of now (30 September 2021), fourteen of them have arrived in Estonia and have submitted an application for international protection.[11]

At the beginning of the summer of 2021, a ‘migration crisis’ broke out on the Lithuanian-Belarusian border, with hundreds of irregular migrants arriving at the border every day, mainly from Iraq, Iran, Afghanistan, and Syria. An important point of discussion was the question of whether Lithuania should receive those people, accommodate them and review their applications for international protection.[12] Some politicians emphasised the fact that it is the sovereign right of each country to decide who it admits and under what conditions, while on the other hand there existed an obligation under international law to provide asylum to those who need it.[13] The crisis was not due to any current military action, but was instead somewhat orchestrated. The European Commission has identified this event as a hybrid attack by Belarus.[14]

The focus of the event has mainly been on transnational relations, while the very people who find themselves in such difficult situations have often been relegated to the background. The situation has also raised the question of whether Lithuania and other countries which have found themselves in this situation have acted lawfully and whether they have properly reviewed the applications of people who have crossed the border.[15]

Case study

A Ugandan applied for international protection on the grounds of persecution due to sexual orientation. The PBGB considered this individual’s application to be unfounded and refused protection because the applicant’s explanations regarding the process of recognising and accepting their homosexuality were too general and vague. Tallinn Administrative Court annulled the PBGB’s decision and found that the applicant’s testimony was trustworthy and that there was no doubt as to their sexual orientation. The PBGB appealed to the circuit court, which annulled the Administrative Court’s decision and agreed with the PBGB’s view that a person with a homosexual orientation should be able to talk in detail about how they discovered their sexual orientation, and additionally that the court considered that a person with a homosexual orientation should not feel at ease at the time at which they actually realised their sexual orientation in a situation in which homosexuality is a criminal offence in their country. The applicant lodged an appeal with the Supreme Court. The Supreme Court annulled the decision by the circuit court, holding that a stereotypical approach should not be used in assessing the applicant’s testimony, and that specific cultural details should be taken into account. In addition, the Supreme Court found that a person’s inability to answer certain questions could not be considered sufficient reason to conclude that the person in question was untrustworthy. Unlike the circuit court, the Supreme Court held that in such cases the administrative authority has a duty to assist in ascertaining the circumstances. The person concerned has now obtained refugee status with the help of the Estonian Centre for Human Rights.

Recommendations

  • Improve the assessment of the vulnerability of asylum seekers as part of the asylum procedure.
  • Improve access to legal aid for asylum seekers and create a computerised translation service in the detention centre.
  • End the punishment of asylum seekers for irregular border crossings.
  • Ensure immediate access to the asylum system for asylum seekers.

[1] European Migration Network. 2021. Annual report on migration and asylum 2020.

[2] Ibid.

[3] Õiguskantsler. 2020. Viisataotluste vastuvõtmine, 23.11.2020.

[4] European Migration Network. Estonia: EMN country factsheet 2020.

[5] Integratsiooni Sihtasutus. 2021. Kohanemis- ja lõimumisteenuste veebikeskkond LINDA.

[6] PBGB monthly report, held by the courts.

[7] UNHCR. 2021. Refugee Voices on Integration in Estonia, Latvia and Lithuania.

[8] Riigi Teataja. 1997. Pagulasseisundi konventsioon (1951), artikkel 31.

[9] Vabariigi Valitsus. 2021. Valitsus otsustas Eestisse vastu võtta kuni 30 koostööd teinud afgaani, 19.08.2021.

[10] Postimees. 2021. Kallas: “kuni 30 inimese vastuvõtmine ei ole migratsiooni pumba avamine, 19.08.2021.

[11] Ots, M. 2021. Eesti ei kiirusta Talibani eest põgenenud afgaanidele asüüli andma, ERR, 10.09.2021.

[12] Kartau, A. 2021. Rändekriis Leedus: migrantide tulv võib peatuda alles siis kui mõistetakse, et seda teed pidi Euroopasse ei pääse, 30.07.2021.

[13] Paris, K. 2021. Pagulasabi juht: pea pooled Valgevene piirile jõudnud põgenikest tuleks vastu võtta, 09.09.2021.

[14] Postimees. 2021. EL võttis seisukoha: Leedu piiril toimub hübriidrünnak, 29.09.2021.

[15] Kelomees, H. 2021. Leedu lükkab kõik Valgevene piirilt saabunute varjupaigataotlused tagasi, 10.07.2021.


Authors

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

  • Markus Hallang on omandanud õigusteaduse bakalaureusekraadi Glasgow Ülikoolis ja magistrikraadi rahvusvahelises õiguses Maastrichti Ülikoolis. Markus töötab Eesti Inimõiguste Keskuses pagulasvaldkonna juristina ning osaleb Euroopa Liidu Põhiõiguste Ameti uurimisvõrgustiku FRANET-i jaoks uuringute tegemisel.

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