Permanent residence permits for citizens of Russia provision ruled compatible with Constitution
The Constitutional Court found that the currently effective version of Section 58 of the Transitional Provisions of the Immigration Law complies with the Constitution. The Court concluded that the contested provision, when viewed systemically in the context of other legal provisions, gives citizens of the Russian Federation a real ability to obtain a new legal justification for continuing to reside in Latvia, provided that the person in question is motivated to take the necessary steps. Thus, these individuals are made possible to continue to maintain the social ties they have already established.
The plaintiffs were citizens of the Russian Federation who had obtained a permanent residence permit based on Section 24(1)(8) of the Immigration Law. In that case, the Constitutional Court assessed the compliance of Section 58 of the Transitional Provisions of the Immigration Law (in its version effective since 20 April 2023) with the principle of protection of legitimate expectations specified in Article 1 of the Constitution, the principle of equality before law stated in the first sentence of Article 91 and the right to inviolability of private life stated in Article 96, as well as the prohibition of collective deportation of aliens enshrined in Article 4 of Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The contested provision applies to citizens of the Russian Federation who are former citizens and aliens of Latvia and who have permanently resided in Latvia based on residence permits issued to them. The contested provision establishes the deadline until which these permanent residence permits are valid, effectively indicating that once the deadline expires, they cease to be valid. Consequently, the Constitutional Court concluded that the contested provision and the consequent loss of the permanent residence permit, as well as the possible deportation from the country, would affect the totality of the person’s social ties within the society they have permanently resided, thus restricting the right of the person to inviolability of private life established in Article 96 of the Constitution.
In assessing the restriction of fundamental rights included in the contested provision in the context of national security, the Constitutional Court noted that guaranteeing national security was a fundamental duty of the state, especially when a war waged by the Russian Federation in Ukraine takes place. It also took into account the fact that Russia had long been influencing the geopolitical situation in the Baltic Sea region with its provocative and aggressive military and hybrid activities. Latvia’s national security is threatened by Russia’s active information influence activities, with propaganda and disinformation. Meanwhile, the persons to whom the contested provision applies chose to establish a relationship of loyalty and solidarity with the Russian Federation because they became citizens of that country. Citizenship gives one rights and duties in relation to the corresponding country. The Constitutional Court noted that the state had discretion in assessing various risks to national security and, accordingly, to change its immigration policy in order to react to them. The Court emphasised that the Russian Federation was recognised as a state sponsor of terrorism and the contested provision ensured that its citizens might stay in Latvia only if they did not endanger the security of the state. Consequently, the restriction of fundamental rights in the contested provision was related to the need to mitigate security risks, aimed at the protection of the democratic institutions of the state and of public order.
Meanwhile, assessing the restriction of fundamental rights included in the contested provision in the context of the test of proficiency in the official language, the Constitutional Court specifically emphasised that the Latvian language is the overall language of communication and democratic participation within the society. The Latvian state has a duty to develop and protect the only official language, Latvian. Therefore, the Constitutional Court concluded that the legal framework aimed at strengthening the official language protected the democratic institutions of the state. It is also aimed at ensuring that persons who lead their daily lives in Latvia, forming social ties, working and engaging in everyday communication with other people, are able to use the Latvian language at least a basic level, thus respecting the right of other individuals to use the official language in communication. Consequently, the Constitutional Court concluded that the restriction of fundamental rights included in the contested provision in the in terms of strengthening the official language was aimed at the protection of the democratic institutions of the state and the rights of other persons.
The Constitutional Court also concluded that if a person did not meet the requirements established in laws and regulations for obtaining a legal basis to continue to reside in Latvia, an order for leaving the country or a decision on forced deportation of the foreigner could be issued in respect of that person. Such consequences can only arise if the person does not act to their own benefit, accepting the consequences established by law. Such a course of action shows that the person is not particularly interested in protecting their fundamental rights. If a person is concerned about protecting their private life and maintaining their established social ties, but does not even attempt to take the official language proficiency test, then the withdrawal of their permanent residence permit and possible deportation from the country cannot be considered disproportionate measures. The Constitutional Court concluded that a lenient transition to the new legal framework was ensured and the principle of protection of legitimate expectations had been respected. Consequently, the benefit that society derives from the restriction established by the contested provision, aimed at strengthening national security and the official language, outweighs the harm caused to the rights and legitimate interests of the individual person. Accordingly, the Constitutional Court recognised that the restriction of the fundamental rights of a person established by the contested provision was proportionate and the contested provision was compatible with Articles 1 and 96 of the Constitution.
Taking into account that the adoption of the contested provision was related to the war initiated by the Russian Federation in Ukraine and, accordingly, to the possible security risks for the state of Latvia, the Constitutional Court recognised that the citizens of the Russian Federation were not in equal and, in terms of certain criteria, comparable conditions with all other foreign nationals who had a permanent residence permit. In particular, the nationals of those countries are not Latvia’s neighbours, and that did not start military action against their own neighbouring countries, or historically threatened Latvia’s national security. Therefore, the Constitutional Court found that the contested provision complied with the first sentence of Article 91 of the Constitution.
Furthermore, in assessing the compliance of the contested provision with Article 4 of Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitutional Court concluded that the contested provision did not prescribe the automatic deportation of foreign nationals (i.e. citizens of the Russian Federation who obtained a permanent residence permit based on Section 24(1)(8) of the Immigration Law) from Latvia. These persons were enabled to acquire the status of a permanent resident of the European Union, with a right to apply for a new permanent residence permit, a right to apply for a residence permit in Latvia in order to acquire the status of a permanent resident of the European Union, or another residence permit within the next two years. The contested provision, within the systemic context of the other sections of the Transitional Provisions of the Immigration Law, states that the individual circumstances of a person must be taken into account and makes the possible deportation of a person dependent on the person’s own conduct. If the person does not establish new legal grounds that would allow them to continue to reside in Latvia, they may submit arguments against deportation to both the competent authority and the court, which must assess these arguments on a case-by-case basis. Consequently, the Constitutional Court found that the contested provision complied with Article 4 of Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Linked case: 2023-04-0106