Supreme Court: Marriage may be condition for issuing residence permit

Copy of the Estonian Constitution at a recent constitutional affairs committee sitting at the Riigikogu.
Copy of the Estonian Constitution at a recent constitutional affairs committee sitting at the Riigikogu. Source: Siim Lõvi /ERR

The Supreme Court has ruled that the registered partnership of two foreigners does not have to be equated with marriage when issuing a residence permit if they have no fundamental obstacles to marriage.

The dispute, which ended up in court, concerned a man and a woman of U.S. citizenship who entered into a registered partnership contract in the state of California last July and applied for a temporary residence permit in Estonia a month later.

The Police and Border Guard Board (PPA) issued a residence permit to the man for working in Estonia, but the woman was not issued a residence permit to come and live with him, because according to the Aliens Act, marriage is a prerequisite of this. At the same time, the police authority explained that the woman has the right to stay in Estonia without a visa, to apply for a residence permit on another basis or to marry and then submit a new application for a residence permit to join her husband.

The woman challenged the decision of the PPA in an administrative court, which upheld the appeal and ordered the board to review the application. At that, the administrative court partially declared the Aliens Act as unconstitutional, because it does not allow the issuance of a temporary residence permit for the purpose of family migration if the applicant is not married.

However, the Constitutional Review Chamber of the Supreme Court ruled on Tuesday that the law is not unconstitutional. The Supreme Court referred to its earlier position that the violation of the fundamental right to the family is justified by the values expressed in the preamble of the Constitution, such as the protection of internal peace and the preservation of the Estonian nation. These goals can be achieved by the state if it has the right to decide whether and under what conditions to admit foreigners.

According to the chamber, the purpose of the marriage requirement is to prevent uncontrolled migration on the basis of any alleged relationship. Therefore, the legislator has allowed family migration only for those couples whose family life is stable and real. According to the court, a marriage requirement increases the likelihood that family life meets these conditions.

The applicant claimed, among other things, that she had been treated unequally in comparison to same-sex registered partners when issuing a residence permit. In their case, the Supreme Court has previously ruled that the requirement to marry is unconstitutional when issuing a residence permit.

The chamber noted that it is not possible for same-sex couples to fulfill the condition of marriage in Estonia and such a requirement would make it virtually impossible for them to lead a family life here. In this respect, the Supreme Court maintained the position already taken in 2009 that a marriage requirement may be disproportionate when applying for a residence permit if there is a legal impediment to the marriage independent of the cohabitants - for example, one of the partners is unable to get a divorce. There are no such obstacles for the applicant in question.

In addition, the chamber drew attention to the fact that the applicant had entered into a registered partnership contract only one month before submitting her application for a residence permit and moving to Estonia with her partner. Thus, the current case did not concern foreigners who have lived a family life here for a long time, but people who wanted to move to Estonia and start living a family life here.

In conclusion, the Supreme Court held that since the partners must have a close economic and psychological connection in order to obtain a residence permit and their family must be real and permanent, it is not excessive to require them to register their relationship as a marriage instead of a registered partnership in order to fulfill the condition of residence deemed important by the Estonian legislator.


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Editor: Kristjan Kallaste

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