Supreme Court: Same-sex partner residency permit legal bar unconstitutional

The  Supreme Court.
The Supreme Court. Source: riigikohus

The Supreme Court has ruled that provisions of the main legislation dealing with the right to reside in Estonia are unconstitutional, following a case where a foreign national was barred from obtaining a residence permit on the basis of cohabiting with a same-sex partner.

The same rights which apply to opposite-sex couples in such cases should be extended to same-sex couples, the court found, not only where one of the partners is a citizen of Estonia, but also in cases where they are a foreign national, or a stateless person with Estonian residency.

The case concerned two men residing in Estonia who entered into a cohabitation agreement last year. One of the pair, a Bangladeshi national, had been granted a permanent residence permit, but his partner, a Russian national, was barred from being granted a permit on the basis of the cohabitation alone. The Russian national had been living in Estonia since 2019 on the basis of a short-term visa, ERR reports.

The Supreme Court's constitutional review chamber found on Tuesday that the Aliens Act is unconstitutional, insofar as it barred the applicant from being granted a residence permit.

This decision overrules those made by the Police and Border Guard Board (PPA), as well as the first-tier administrative court, which rejected the plaintiff's appeal on the PPA decision.

ERR reports that the Supreme Court ruling was primarily based on a precedent established in a 2019 Supreme Court decision made en banc.

The 2019 ruling found it unconstitutional to bar a temporary residence permit to a third country foreign national who wanted to settle in Estonia with a same-sex partner who had Estonian citizenship.

While this ruling concerned cohabiting with Estonian citizens, rather than residents as in the recent case, the Tartu-based Supreme Court found that the position was the same for foreign nationals wishing to cohabit with residents of Estonia.

The Supreme Court reiterated the position of the Supreme Court en banc to the effect that the fundamental right to family also protects the rights of people of the same sex to cohabit in a family life situation. 

As with opposite-sex couples, same-sex partnerships when cohabiting can constitute a family, the court found, and the Estonian Constitution as a result protects that family life from interference by the state, the Supreme Court said.

This right also extends to foreign citizens and stateless persons residing in Estonia, as well as to their family members.

The Russian citizen in the recent case as noted had been living in Estonia on the basis of a visa, while his partner had received a temporary residence permit in order to study in Estonia in 2016, and three years later had received a permanent residency permit.

The Russian citizen applied to the Police and Border Guard Board (PPA) for a temporary residence permit, but was refused on the grounds of there being no legal basis for issuing the residency, the PPA said.

The administrative court dismissed the individual's appeal on the PPA ruling, but following an appeal to the second-tier circuit court, the latter ruled the restriction on the applicant's rights was not justified, and initiated constitutional review proceedings at the Supreme Court.

The main piece of legislation dealing with legal recognition of cohabiting partnerships, both opposite-sex and same-sex, is the Registered Partnership Act.

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Editor: Andrew Whyte

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