Only legally wedded spouse can accompany a foreign worker to Estonia

Triniti

On July 1, 2012 a number of amendments to the Aliens Act took effect in Estonia. This has now created a situation where highly qualified foreigners, coming to work in Estonia from outside of the European Union (EU), can bring along their under-aged children, yet not the children’s other parent if that parent is not the foreigner’s legally wedded spouse. In addition to the said familial issue, the amendment, among other things, has also resulted in discrimination by the state of Estonia of non-married partners from third countries based on whether or not they are married to an EU citizen or not.

It used to be easier before

The Aliens Act in force so far (i.e. until June 30, 2012) provided for the option of applying for a residence permit also for a non-married partner on the basis of sufficient legal income. This ensured that families whose cohabitation had not been legally registered could stay together in the case of one family member working in Estonia. The above-described worked in real life as well.

Furthermore, this type of residence permit provided the option of residing in Estonia for foreigners who were not entrepreneurs and had no desire to become one, yet who still had sufficient legal income to get by in Estonia. For example, this allowed residence in Estonia for foreigners whose income (with all required taxes paid) came from playing poker.

True – according to officials, the former legislation could also be misused. However, considering Estonia’s desire to be an attractive country of destination for highly qualified foreigners, the amendment was adopted in haste and without consideration of reasonable alternatives to people who, due to whatever reason or conviction, had not entered into a legally binding marriage, yet were raising common children.  

New regulation likely to prove discriminatory

The new regulation abolished from the Aliens Act the option of applying for (and being granted) a residence permit in the event of an existing sufficient legal income. This placed companies interested in hiring highly qualified foreigners in a rather difficult position with their selection options considerably reduced. Given the resounding declarations of the flexibility of the labor market, open-minded way of thinking and the desire to lure top specialists to Estonia, the undersigned is of the opinion that the country hereby took a hearty step back towards conservatism and reclusion.  

Additionally, the amendment concluded in a state of affairs where Estonia substantially has one set of rules for a foreigner from a third country (e.g. Ukraine) who has children with, yet is not married to, another foreigner who is a citizen of an EU member state (e.g. Lithuania) and another set of rules for a foreigner from a third country who has children with, yet is not married to, another foreigner who is a citizen of another third country (e.g. New-Zealand).

Namely – in the first described case, the Ukrainian citizen (even though being a citizen of a third country) qualifies as a family member of an EU citizen and can reside in Estonia along with their family member of Lithuanian citizenship. In the second described case, the non-married partner will not be allowed residence in Estonia. 

Nevertheless – to serve the truth – non-married partners can apply for a residence permit for work or study; however, different criteria apply to applying for a residence permit on latter grounds.

How should the situation be solved?

One option the state of Estonia could consider is to deem foreigners who are in a non-married relationship with a citizen of a third country equivalent to foreigners from third countries who are family members of EU citizens. This would at least ensure a theoretical option for a non-married partner who is a citizen of a third country to reside in Estonia with their factual life partner and their common children. Furthermore, should this solution be applied, discrimination, based on whom they live and/or have children with, of otherwise equal citizens of third countries would come to a halt as well.

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