Supreme Court: Termination of visa-free travel can be challenged in court

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Supreme Court building in Tartu. Source: Supreme Court of Estonia

The Supreme Court has found unconstitutional provisions of the Foreigners Act that made it impossible for two Ukrainian seasonal workers to challenge a decision to end their stay in Estonia before the end of their visa-free travel period.

The dispute that ended up in the Supreme Court concerned two Ukrainian citizens who traveled to Estonia for seasonal work last summer. The Police and Border Guard Board (PPA) terminated their visa-free stay early for alleged failure to comply with Covid isolation requirements.

The workers and their employers turned to administrative court and asked the PPA decision to be overturned. It was pointed out that both employees tested negative for COVID-19.

The administrative court rejected the complaint because the Foreigners Act provides no grounds for turning to court in such a situation. The employees' application for preliminary legal protection was denied and they were forced to leave Estonia.

However, their appeal was satisfied in circuit court that found the limitation on the right to file a complaint in the Foreigners Act to be unconstitutional and turned to the Supreme Court.

Completely ruling out the right to turn to court unconstitutional

The Supreme Court Constitutional Review Chamber ruled on Tuesday that the provisions in question are unconstitutional and void as everyone has the right to defend their rights and freedoms in court. This right is extended to foreigners in Estonia, the chamber noted.

The court said that citizens of Ukraine and several dozen other countries can spend up to 90 days visa-free in EU member states based on a EU regulation. Therefore, their right to enter and stay in Estonia without a visa is pursuant to EU law.

Because the foreigners were in Estonia as seasonal workers and their employers had made efforts to bring them to the country, the chamber found that the decision to terminate their stay early also infringed the entrepreneurial freedom of their employers. The latter could not perform contracts and do the necessary work without labor, the chamber found.

The decision of the PPA to terminate the stay of seasonal workers constituted intensive infringement of the rights of workers and employers, which is why its legality needs to be verifiable in court, the chamber concluded.

The Supreme Court noted that completely ruling out the right of turning to court is such a serious limitation on fundamental freedoms it cannot be explained through the need to save public resources. The limitation is not necessary for ensuring public order and security as the foreigner does not have to remain in Estonia for the duration of proceedings. Written proceedings remain a possibility alongside virtual court sessions or using a representative. The limitation is therefore disproportionate and unconstitutional.

The Supreme Court pointed out that visa freedom is a shared jurisdiction of the EU and member states. While the right of visa-free stay in pursuant to EU regulation, the union's legal acts provide no rules for settling corresponding disputes.

The Constitutional Review Chamber clarified that if a member state's actions are not fully regulated by EU law, the member state's courts can apply national standards provided it does not violate protection prescribed in the EU Charter of Fundamental Rights and the superiority, universality and efficiency of EU law. Verifying the plaintiffs' right to turn to court based on the Estonian Constitution does not violate said principles of EU law, the Supreme Court found.

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Editor: Marcus Turovski

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