Tallinn Circuit Court repealed a decision by Tallinn Administrative Court according to which the PPA was obligated to grant a temporary residence permit to a woman of U.S. citizenship who married an Estonian woman, spokespeople for the court said.

The circuit court was of the position that when the two women married in the U.S. in October 2015, the residence of the Estonian woman was in Estonia and not the U.S., where she was staying temporarily in the framework of a visa freedom program at the time. As it is not possible in Estonia for two people of the same sex to enter into a marriage, the marriage cannot be considered valid in Estonia.

The couple filed a notice of appeal with the administrative court when the U.S. citizen had filed for a temporary residence permit to live with her spouse, who was living permanently in Estonia. The PPA refused to grant her a residence permit, basing the decision on the fact that the two women are not recognized as spouses in the Estonian legal system, among other factors. The PPA stated that as long as the legal definition of marriage remains unchanged in the Estonian Family Law Act or the Aliens Act is not amended, it will not be possible to grant a residence permit for the purpose of taking up residence with a same-sex individual.

Tallinn Administrative Court satisfied the appeal in January, obligating the PPA to make a new decision regarding the U.S. citizen's residence permit application. The court was of the position that when getting married, the couple's place of residence was in the U.S., as the appellants claimed in the administrative proceedings that they take turns living in each other's country of citizenship and the family was established during a period when the spouse of Estonian citizenship was staying in the U.S.

The circuit court, however, did not agree with this conclusion. Based on the General Part of the Civil Code Act, which stipulates an individual's place of residence, the court was of the position that an important indicator in determining a place of residence is the will of the individual to take up residence in the place in question.

"Just three months in the U.S. did not make the country her place of residence," the circuit court stated regarding the spouse of Estonian citizenship. "She went to the U.S. with the knowledge that, according to visa regulations, she could only be there for 90 days. She did not take any steps in the U.S. toward making her stay in the country in any way legal for a longer period of time, including not applying for an immigrant visa, as the appellants decided to take up residence together in Estonia."

The circuit court ruled that as the place of residence of the appellant of Estonian citizenship was and remains Estonia, and it is not possible in Estonia for two people of the same sex to legally marry, the marriage between the appellants cannot be considered valid in Estonia. The court noted that the appellants' marriage would be valid in Estonia if the condition included in the Family Law Act stating that a marriage is between a man and a woman is found to be inconsistent with the Constitution.

Tallinn Circuit Court agreed with the PPA in that the provisions of the Constitution and European Convention on Human Rights as well as the practice of the European Court of Human Rights does not foresee the right of same-sex persons to marry. The state must ensure the possibility for same-sex persons to live together if they wish, as well as register their partnership, but this does not have to be through marriage. Thus, the Registered Partnership Act is in force in Estonia, which enables two natural persons, regardless of sex, to enter into a cohabitatin agreement.

"The circumstance that the state has not been able to approve the implementing provisions of the Registered Partnership Act to date does not mean that the institution of marriage should be defined more broadly," the court said.

The circuit court also based its decision on the fact that the appellants have not entered into a cohabitation agreement, which is why there is no valid, registered form of cohabitation between them. "The restriction that cohabitation must be officially registered is justifid," the court found. "As the appellants' marriage is not valid in Estonia and their cohabitation has not been registered in any other form, it is nt relevant in the framework of the administrative matter in question to begin checking if the Aliens Act is constitutional insofar as it does not stipulate the right of a registered partner to apply for a residence permit. This question becomes relevant if the appellants enter into a cohabitation agreement and the PPA then refuses to grant the spouse of U.S. citizenship a temporary residence permit."

Couple caught in legal Catch-22

Sarah and Kristiina Raud, who are subject to Tallinn Circuit Court's ruling, have decided to take their appeal to the Supreme Court of Estonia, the Estonian Human Rights Centre (EIK) said.

"If we did not appeal the decision, it would unfortunately mean moving apart once again," Kristiina Raud said. "After consulting with our lawyer, we believe that we have enough grounds for turning to the Supreme Court with our case."

EIK director Kari Käsper said that there are a number of debatable nuances in the circuit court's decision which would require the opinion of the Supreme Court. "We believe that the question of whether Kristiina lived in Estonia or the U.S. at the time of entering into the marriage is just one debatable circumstance," he said.

According to Käsper, a significantly more questionable issue is the standpoint of the circuit curt that as the women have not entered into a cohabitation agreement in Estonia, there is no valid form of cohabitation between them.

Käsper noted that at the time the women got married in the U.S., entering into a cohabitation agreement was not possible in Estonia. When the women tried to enter into a cohabitation agreement in Estonia retrospectively in 2016, three notaries refused to register their partnership. The couple also received a written statement from the Chamber of Notaries stating that a couple who has registered their marriage in a foreign country cannot enter into an additional cohabitation agreement.

Residence permit valid through conclusion of legal proceedings

Mari-Liis Laan, head specialist of the PPA's Migration Office, told BNS that the PPA on March 17 granted Sarah Raud a residence permit in the framework of preliminary legal protection, which is to remain valid through the end of the court procedure. "This means that the residence permit has already been granted to the woman for the duration of the court procedure and is to expire when the final verdict of the Supreme Court enters into force," she explained.

The residence permit granted to Sarah Raud is to remain valid for one year. Should the legal dispute last longer, the PPA is prepared to extend the validity of her permit. Laan noted that should the court verdict enter into force earlier, the PPA reserves the right to revoke her residence permit as the basis for granting it has expired.

Delay of implementing acts measurable in years

While Estonia does not allow same-sex marriages, it recognizes same-sex marriages concluded elsewhere. The country's own gender-neutral Registered Partnership Act was passed on Oct. 9, 2014 — over three years ago — and entered into force on Jan. 1, 2016 — nearly two years ago — however its implementing acts have yet to be adopted by the Riigikogu.

The first reading of the act's implementing provisions took place on Nov. 25, 2015, after which it was decided that discussion of the provisions would continue in the Legal Affairs Committee of the Riigikogu, where the most recent discussion on the matter took place on Jan. 21, 2016.

The most recent bill to repeal the Registered Partnership Act was introduced in the Riigikogu by the Conservative People's Party of Estonia (EKRE) in October, but was voted down on Oct. 17.