All deals & cases

COBALT successfully represented its client in a dispute against Police and Border Guard Board

2020-07-30

COBALT represented its client in a dispute where our client filed a complaint against the decision of the Police and Border Guard Board to refuse to issue a residence permit to the client, a third-country national, to live with their minor child who is an Estonian citizen. The judgment of the circuit court found that the Aliens Act must be interpreted to mean that the parent of a minor child indeed has the right to apply for a residence permit to live with their child based on Article 20 of the Treaty on the Functioning of the European Union as a treaty. This was a dispute of principle on the issue of residence permits and involved a compliance assessment with respect to the Constitution of the Republic of Estonia.

The process went on for nearly two years and finally concluded with the entry into force of the judgment of Tallinn Circuit Court, which changes the practice of implementing the Aliens Act and advises the legislator to amend the Act. Until now, it was only possible to apply for a residence permit based on the exhaustive list provided in the Aliens Act. The circuit court expanded the current approach and found that the right of residence of a third-country national may also arise from Article 20 of the Treaty on the Functioning of the European Union (TFEU). In addition, because Estonian national law must be interpreted in line with the European Union law, TFEU is in this case regarded as a treaty within the meaning of clause 118 7) of the Aliens Act. Whereas, until now, the number of treaties considered as such in practice have been very limited and included a clear agreement between the states on the opportunity to apply for a residence permit.

The circuit court explained that pursuant to the position of the Court of Justice, national measures, including decisions refusing a residence permit to the family members of a EU citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status, contradict Article 20 of TFEU (C-34/09, clause 42; C-133/15, clause 61). Article 20 of TFEU does not grant any autonomous, personal rights to third-country nationals, but their rights may derive from the rights of Union citizens (C-133/15, clause 62). The Court of Justice has admitted that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of their freedom of movement, a residence permit must nevertheless be granted to a third-country national who is a family member of a Union citizen, since the effectiveness of Union citizenship would otherwise be undermined because as a consequence of refusal to grant a residence permit, that citizen would be obliged in practice to leave the territory of the EU as a whole, thus depriving them of the genuine enjoyment of the substance of the rights conferred by that status (C-34/09, clauses 43 and 44; C-133/15, clause 63).

The circuit court also advised the legislator to amend the Act, noting that in the interest of legal clarity in may be necessary to elaborate the Aliens Act and the regulations issued on the basis thereof with respect to the right of residence of a third-country national arising from Article 20 of TFEU. With regard to our client, the circuit court highlighted that the resolution of the client's application for a temporary residence permit cannot be dependent on the amendment of national legislation because the appellant is relying on EU law, incl. one of the treaties of the EU and the interpretation thereof as provided by the Court of Justice.

The judgment (in Estonian) can be found here.

The client was represented by Senior Associate Kadri Michelson.