Key issues
- The Russian Federation’s war in Ukraine brought a large number of refugees to Estonia from both Ukraine and Russia.
- The state was not immediately ready for such a large administrative burden, resulting in a decline in the quality of procedures.
Political and institutional developments
In the last two years, the number of asylum seekers arriving in Europe has significantly increased. While the pandemic and border closures were the key issues in 2020–2021, the war in Ukraine was the key issue in 2022–2023.
On 24 February 2022, Russia initiated a full-scale war in Ukraine, resulting in the highest number of international protection applicants in the EU since 2016.[1] Since the beginning of the war, over 5 million refugees from Ukraine have been registered in the EU.[2] Those in need of asylum included not only those fleeing the war but also those who were in the EU before the conflict started and could no longer return to their home country.
On 4 March 2023, the Council of the European Union decided to activate the Temporary Protection Directive[3], which simplified the process of obtaining protection for individuals who had fled Ukraine. Estonia adopted an order for the application of temporary protection[4], specifying the eligible individuals for receiving temporary protection. To qualify for temporary protection, the applicant had to be physically present in Ukraine on 24 February 2022. A Ukrainian citizen who, for example, was on a work or vacation trip and could not return due to the war, no longer qualified for temporary protection and had to undergo the regular international protection procedure to seek asylum. Even before the start of the war, a significant number of Ukrainians temporarily resided in Estonia. The increase in the number of refugees put considerable pressure on Estonia’s asylum system. Since a significant portion of Ukrainians did not qualify for temporary protection, Estonia needed to improve and speed up the regular international protection procedures while maintaining the quality of the procedure.
Despite generally managing well with the reception of Ukrainian refugees, Estonia faced issues with those attempting to flee Ukraine through Russian territory: at the Estonia-Russia border crossing, several persons who had the right to temporary protection were not allowed to cross the Estonian border.[5] The exact number of persons affected is not known.
Due to the ongoing armed conflict, mobilisation[6], and increasing repressions, there was a significant increase in the number of asylum seekers from the Russian Federation.
The events of 2022–2023 highlighted the need to adapt to humanitarian crises and ensure that persons in need of protection have access to a fair and efficient process. Several issues arose in the regular international protection procedures. There was a change of international protection officers, leading to a decline in the quality of the procedure. For example, in the case 3-23-656[7], the court found that the administrative procedure conducted by the Police and Border Guard Board was “catastrophically inadequate.”[8]
Legislative developments
In August 2022, amendments to the State Borders Act and related amendments to other laws entered into force.[9] It was established that in an emergency situation caused by mass immigration, threatening public order or national security, the Police and Border Guard Board can reject the application for international protection of a foreigner who has irregularly crossed the external border and send them back without an expulsion order or entry ban decision, in case the foreigner was able to enter Estonia through an open border crossing.
The Estonian Refugee Council and the Estonian Human Rights Centre criticised these amendments.[10] Currently, the changes have not been implemented, as there has been no state of emergency caused by a mass immigration. If the amendments were to be implemented, it would certainly be problematic.[11] A scenario where the state does not individually review international protection applications and sends asylum seekers back without issuing expulsion orders is contrary to international law.[12]
Case law
In the years 2022–2023, significant court decisions were made in the field of asylum, addressing both the conduct of administrative proceedings and the allowing of internet and mobile phone use for international protection applicants in the detention centre.
On 20 June 2023, the Supreme Court declared a provision of the Minister of the Interior’s regulation “Internal Rules of the Detention Centre” which prohibited mobile phones in the detention centre to be in conflict with the Constitution.[13] The court found that an outright ban on the use of personal mobile phones in detention centre is unconstitutional. The court explained that fundamental rights of individuals can only be restricted by law, while the restriction in question was established by the internal rules approved by the minister. The use of the internet is not regulated in the internal rules. The Obligation to Leave and Prohibition on Entry Act imposes an obligation on the state to provide the opportunity to use publicly available communication channels, including the internet, in detention centres. According to the court, the law does not grant the minister the authority to establish a general ban on internet use through the list of prohibited items.
In June 2023, the decision of the Tallinn Administrative Court in case 3-22-2684[14], entered into force, in which the court concluded that a person with special needs must be provided with sufficient support in the international protection proceedings. The key issue was the assessment of special needs and the resulting procedural safeguards. The court found that the assessment of special needs conducted by the Police and Border Guard Board was formal and did not identify the support the applicant might need due to mental health issues. As a result of not assessing vulnerability, the Police and Border Guard Board significantly violated the international protection applicant’s right to be heard.
Statistics and surveys
During the period from 24 February 2022 to 17 September 2023, a total of 6,256 people applied for international protection, of whom 5,790 were Ukrainian citizens. After citizens of Ukraine, citizens of the Russian Federation submitted the second largest number of applications in both 2022 and 2023.
As of 17 September 2023, a total of 48,634 people had applied for temporary protection. As of 17 September 2023, 27,367 people had applied for the extension of temporary protection. A total of 5,736 people had given up temporary protection.[15]
While the number of international protection applications increased significantly in 2022, it began to decrease in 2023. For example, from January to April 2023, an average of 480 applications were submitted, whereas from March to August, the average number of applications had already decreased to 280.[16]
On 19 June 2023, the Institute of Baltic Studies published a study titled “Analysis of counselling services for international protection applicants and returnees”.[17] The study focuses on counselling services provided in the context of international protection and return procedures, addressing the effectiveness and impact of the counselling services and offering recommendations for their development. The study found that the content of the service is not understood by different stakeholders, and the boundaries of service provision are blurred. The situation where the Police and Border Guard Board (PBGB) is in the role of both an international protection officer and a counsellor has led to a conflict of roles, as loyalty to the PBGB is expected from the counsellor.[18] A relationship of trust cannot develop between the PBGB counsellor and the international protection applicant, leading to a decrease in the quality of counselling. The study concluded that the PBGB’s perspective on the service does not align with the Ministry of the Interior’s view.[19] According to the results of the analysis, the current service is not neutral nor objective based on its design.[20]
The study also highlighted the role of the Estonian Human Rights Centre in counselling international protection applicants. Applicants stated that the Estonian Human Rights Centre and accommodation centre managers primarily help them to prepare for meetings with asylum officers.[21] Interviewed asylum seekers also pointed out that the centre’s activities balance the entire asylum system and “push the PBGB to be better during the process“.[22]
Promising practices
Since 2022, the involvement of local municipalities in supporting the integration of refugees has increased. In Tallinn, a refugee centre[23] was established, providing refugees with a centralised location for services, assistance, and information needed upon their arrival in Estonia.
In response to the war in Ukraine, the Estonian Refugee Council enhanced its capacity by offering various services and programmes to beneficiaries of international and temporary protection. In Estonia, they operate livelihoods and economic recovery, mental health, education and awareness, counselling, community, advocacy and protection programmes, providing a range of services.[24]
On 15 August 2023, the Police and Border Guard Board signed a cooperation agreement with the United Nations High Commissioner for Refugees (UNHCR) Representation for the Nordic and Baltic Countries. According to the new cooperation agreement[25], it is now possible to conduct border monitoring, meaning to oversee PBGB’s activities concerning individuals in need of asylum at border crossing points. This monitoring will be carried out by the Estonian Human Rights Centre as a partner of the UNHCR.
Noteworthy public discussions
The unequal treatment of asylum seekers has emerged as one of the noteworthy public discussions related to the war in Ukraine. For instance, in certain cases, individuals with Ukrainian citizenship who have been granted subsidiary protection are allowed temporary stays in their country of origin[26], however, subsidiary protection beneficiaries from other countries are not allowed to do so. Additionally, the processing of international protection applications of Ukrainian refugees is carried out in a simplified manner, taking approximately one month[27], while asylum seekers from other countries must wait for six months for a decision according to the standard procedure.
There has also been public debate on whether Russian citizens fleeing mobilisation can qualify for international protection. The former Minister of Foreign Affairs Urmas Reinsalu publicly stated that refusing or expressing a desire to avoid fulfilling civic duties in Russia is not a sufficient basis for obtaining asylum in another country.[28]
Trends and future outlook
In the years 2022–2023, there was a trend in the decisions made by the Police and Border Guard Board to consider almost all international protection applications submitted by Russian citizens fleeing mobilisation as unfounded. According to international law, conscription or compulsory military service without the possibility of alternative service can be considered persecution in certain cases, such as when an individual is forced to commit war crimes.[29] Some of these decisions have been annulled by the courts, but the judgments have not yet entered into force. If the judgments are upheld, the Police and Border Guard Board must change its practice.
Case description
A person with dual citizenship (Ukraine and Russia), who was in Crimea when the war broke out, came to Estonia to seek temporary protection. His primary citizenship was Ukrainian. The person was forced to acquire Russian citizenship in order to live with dignity in occupied Crimea. After submitting the application for temporary protection, the Police and Border Guard Board invited the person for an interview. On the same day, the situation culminated in the person being deported from the country without any legal basis; no expulsion order or decision to terminate the temporary protection procedure was issued. The Police and Border Guard Board took the applicant from Tallinn to the Narva border, gave him a record of confiscation of Ukrainian passports and forcibly deported him to Russia, returning only his Russian Federation documents. With the assistance of the Estonian Human Rights Centre, the person filed a complaint with the Tallinn Administrative Court against the Police and Border Guard Board’s unlawful conduct. The court ruled that the person’s deportation by the Police and Border Guard Board was unlawful, and awarded €3,000 as compensation for non-pecuniary damages and €254.03 for pecuniary damages.[30] By now, the person has been granted temporary protection.
Recommendations
- An effective and adequate vulnerability assessment framework must be developed for international protection proceedings and the rights of vulnerable persons must be protected throughout the proceedings.
- The Police and Border Guard Board must improve the quality of international protection proceedings by ensuring an efficient, fast and lawful procedure.
- The Ministry of the Interior should ensure an independent and objective counselling service for international protection applicants, moving it out of the Police and Border Guard Board’s administrative domain.
[1] Euroopa Parlament. 2023. Varjupaik ja ränne ELis: faktid ja arvud, 13.07.2017.
[2] UNHCR. 2023. Operational Data Portal. Refugees from Ukraine recorded in Europe, 19.09.2023.
[3] Euroopa Liidu Teataja. Nõukogu direktiiv 2001/55/EÜ miinimumnõuete kohta ajutise kaitse andmiseks ümberasustatud isikute massilise sissevoolu korral ning meetmete kohta liikmesriikide jõupingutuste tasakaalustamiseks nende isikute vastuvõtmisel ning selle tagajärgede kandmisel, L 212, 20.07.2001.
[4] Riigi Teataja. 2022. Ajutise kaitse kohaldamine, RT III, 08.03.2022, 10.
[5] Viltrop, A., Ponomarjova, U. 2022. Viltrop ja Ponomarjova: ukrainlase teekond ohutusse takerdub Eesti idapiiril, ERR, 04.10.2022.
[6] Länts, U. 2022. Venemaa kuulutas välja osalise mobilisatsiooni, Postimees, 21.09.2022.
[7] Tallinna Halduskohtu 06.06.2023 otsus haldusasjas nr 3-23-656.
[8] Ponomarjova, U., Tuuling, K., Vaarmann, O. 2023. Kohtuotsus: PPA menetluses leidub tõsiseid puudujääke, Eesti Inimõiguste Keskus, 27.07.2023.
[9] Riigi Teataja. 2022. Riigipiiri seaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus, RT I, 06.08.2022, 1.
[10] Eesti Pagulasabi, Eesti Inimõiguste Keskus. 2022. Arvamuse andmine Riigipiiri seaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus 577 SE kohta.
[11] Ponomarjova, U. 2022. Uljana Ponomarjova uuest piiriseadusest: kas soovime tõesti riiki, mis järgib inimõigusi vaid olukordades, mis on talle mugavad? Eesti Päevaleht, 06.06.2022.
[12] ERR. 2022. Riigipiiri seaduse muutmise kava tekitab Eesti inimõiguslastes pahameelt, 07.06.2022.
[13] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 20.06.2023 otsus kohtuasjas nr 5-23-16.
[14] Tallinna Halduskohtu 02.05.2023 otsus haldusasjas nr 3-22-2684.
[15] Politsei- ja Piirivalveamet. 2023. Ajutise ja rahvusvahelise kaitse taotlejate arv, 18.09.2023.
[16] Politsei- ja Piirivalveameti igakuine aruanne 31.08.2023 seisuga. (Eesti Inimõiguste Keskuse valduses)
[17] Kaldur, K., Pertšjonok, N., Jurkov, K., Pesti, M. 2023. Rahvusvahelise kaitse taotlejate ja tagasisaadetavate nõustamisteenuse analüüs. Balti Uuringute Instituut.
[18] Ibid, lk 45.
[19] Ibid, lk 46.
[20] Ibid, lk 49.
[21] Ibid, lk 19.
[22] Ibid, lk 43.
[23] Tallinna Linnavalitsus. Põgenikekeskus Tallinnas.
[24] Eesti Pagulasabi. Programmid.
[25] ÜRO Pagulaste Ülemvoliniku Ameti (UNHCR) Põhja- ja Baltimaade esindus. 2023. Politsei- ja piirivalveamet allkirjastas koostööleppe ÜRO Pagulaste Ülemvoliniku Ameti Põhja- ja Baltimaade esindusega, 15.08.2023.
[26] Politsei- ja Piirivalveameti vastus Eesti Inimõiguste Keskuse selgitustaotlusele, 26.04.2023. (autori valduses)
[27] Politsei- ja Piirivalveamet, Info seoses sõjaga Ukrainas.
[28] Stybnarova, N. 2022. Putin’s war is illegal – and Russians fleeing the draft may have the right to asylum, The Guardian, 08.10.2022.
[29] ÜRO Pagulaste Ülemvoliniku Amet (UNHCR). Rahvusvahelise kaitse suunised nr 10. Sõjaväeteenistusega seotud varjupaigataotlused 1951. aasta pagulasseisundi konventsiooni artikli 1A lõike 2 ja/või 1967. aasta protokolli kontekstis, 12.11.2014, p 17.
[30] Tallinna Halduskohtu 20.03.2023 otsus haldusasjas nr 3-22-1245.
