Court: Partner in same-sex partnership has right to residence permit ({{commentsTotal}})

Two women walking in Tallinn's Kadriorg Park. Photo is illustrative.
Two women walking in Tallinn's Kadriorg Park. Photo is illustrative. Source: (Postimees/Scanpix)

A second-tier court in Estonia has deemed unconstitutional the portion of the Aliens Act which does not provide a legal basis for the issuance of a fixed-term Estonian residence permit to the partner of an Estonian citizen in a registered same-sex partnership.

The circuit court found that in the procedure for the issuance of a fixed-term residence permit, the plaintiffs and their partners were groundlessly subject to worse treatment than heterosexual individuals, for whom the possibility exists to get married, a spokesperson for the courts said.

As the family lives of same-sex couples and heterosexual couples are equally protected under the Constitution, the circuit court saw no sensible or relevant cause for such unequal treatment.

The circuit court also found, however, that the claims for the compensation of non-material damage caused by the failure to provide the implementing provisions of the Registered Partnership Act were ungrounded. Specifically, the court found that the infringement caused by the failure to provide the implementing provisions cannot be considered excessively intense considering the plaintiffs' situation.

The circuit court found that the state has provided same-sex couples with the opportunity to enter into a registered partnership but has thus far failed to ensure the opportunity to realise the rights arising from said partnership agreement. The Aliens Act sets out the opportunity to issue a residence permit to a person taking up residence with their spouse, but provides no legal basis for the issuance of a residence permit to take up residence with one's partner in a registered partnership.

Failure to adopt the implementing provisions of the Registered Partnership Act has created a situation in which state institutions do not recognise cohabiting people of the same sex as constituting a family, and treat them differently than heterosexual couples, who can legally get married and obtain a residence permit for taking up residence with their spouse.

The circuit court forwarded Monday's decision to the Supreme Court of Estonia, which is entitled to deem invalid a provision of the law that is unconstitutional.

The Supreme Court of Estonia ruled last year that the protection of family life has not been made conditional based on the gender or sexual orientation of a family's members.

Although the state may in certain cases preclude an individual's right to live with their family member in Estonia, cohabiting same-sex partners are entitled to the protection of the state, and the restriction of their rights may not run counter to the ban on discrimination and must be necessary in a democratic society, the country's top court said.

The stance of the Supreme Court is decisive in disputes over the constitutionality of a provision of the law.

Editor: Aili Vahtla



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