Slovenia - Supreme Court of the Republic of Slovenia, 10 July 2013, I Up 250/2013
Keywords:
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The International Protection Act's (ZMZ) definition of family members is not inconsistent with the Constitution of the Republic of Slovenia nor with Article 8 of the European Convention on Human Rights (ECHR).
The ZMZ does not give the body that decides on international protection the discretion to broaden the circle of family members in special circumstances, nor are such obligations or discretions given by EU legislation or the ECHR.
Facts:
The Ministry of Interior (MI) decided to reject the Applicant's (who has recognised refugee status in the Republic of Slovenia) application for family reunification insofar as it concerned her mother and ruled in the Applicant’s favour insofar as it concerned her seven minor children.
The court of first instance held that the decision to reject the application to reunify the Applicant with her mother had no legal grounds because the MI failed to consider the best interest of the children and their right to family life in relation to their grandmother. The MI should have asked the older children if they believed that their separation from their grandmother and reunification with their mother would not cause them serious harm. EU rules and guidelines provide Member States with the opportunity to allow reunification with family members who are not mentioned in Article 4 of the Family Reunification Directive if they are dependent on the refugee.
Decision & reasoning:
The Supreme Court agreed with the MI's decision that it was impossible to rule in favour of the appeal to be reunified with her mother if the ZMZ, Council Directive 2003/86/EC, Directive 2011/95/EC and the Charter of Fundamental Rights of the European Union were followed.
The first and second paragraph of Article 16b of ZMZ define with which family members a person who has been given international protection can be reunified. The Court was of the opinion that the ZMZ is entirely in line with Directive 2003/86/EC as concerns the Applicant's family members. The guidelines provided in Directive 2011/95/EC are merely possibilities or recommendations for EU Member States as to how they might chose to extend the circle of persons who might be recognised refuge status on the basis of family reunification with a refugee who was given this status in a particular Member State for reasons defined by the Geneva Convention.
The expansion of the circle of family members represents an increase in the state's responsibility. When the circle is expanded, there is a greater possibility that a larger number of individuals will be given refugee status on this basis, which means that a larger number of individuals will need to be given the rights that emerge from this status. Such an expansion is also linked to the capacity of the state to expand the number of beneficiaries and individuals with rights regarding its economic situation because it needs to ensure these rights. In Slovenia, this can be decided only by legislation, which means it is in the hands of the Parliament which is in charge of passing legislation.
As the EU legislation does not define the expansion of the circle of relatives who could, in accordance with the family reunification principle, obtain refugee status on the basis of the status of the primary Applicant as an obligation that Member States need to implement in their legislation, but merely as a possibility, the direct use of Council Directive 2003/86/EC and Directive 2011/95/EC is not possible, and the mandatory provisions stipulated by the ZMZ, which are harmonised with the EU legislation, can also not be interpreted as broader than they are written. For that reason, the Appellant’s argument that the ZMZ is not harmonized with the EU legislation is unfounded and thus it is not necessary to address this issue in the EU court first.
The definion of family members in the ZMZ is in accordance with Articles 53 (marriage and family) and 56 (rights of the child) in relation to Article 15 (exercise and restriction of rights) of the Constitution as well as Article 8 of the European Convention on Human Rights (ECHR). Various Slovenian laws to regulate various relations have different definitions of family, which is constitutionally permissible, taking into account that the family is not constitutionally defined.. It is impossible to directly apply Constitutional provisions in relation to family members as they are not defined in the Constitution. The ECHR also does not define family members, thus it is impossible to successfully state that the ZMZ is, on this point, contrary to ECHR.
The specific circumstances of this case – in which the mother of seven minors has not been living with them for over 6 years due to the situation in her country of origin (Somalia), their father is dead, and three children are, according to the records, in a refugee camp in Kenya with their grandmother – indicate that these children are emotionally and socially attached to their grandmother and that it would be in the children's best interest if the connection with the grandmother is not broken by their reunification with their biological mother. However, according to the ZMZ provisions, this aspect is not legally relevant when deciding on family reunification, thus the expansion of the circle of family members is not possible even in these circumstances. The ZMZ does not give the body that decides on international protection the discretion to expand the circle of family members to more than those defined by law (even in special cases), nor do the EU legislation and the ECHR prescribe this obligation or give such discretion rights.
It is not considered to be inadmissible unequal treatment if the ZMZ does not have the same provisions regarding family members as the Aliens Act(ZTuj-2). It is true that the ZTuj-2 defines family members in a broader way. However, this does not mean inadmissible unequal treatment of foreigners and applicants for international protection or refugees. Their legal positions are already different, which can be a key reason for the different regimes. In exceptional cases where special circumstances argue in favour of reunification within the Republic of Slovenia (Article 47, paragraph , 4ZTuj-2), the competent authority can consider expanding the family members to include additional foreign relatives. In this provision, the discretion is given to the competent authority, to expand the circle of family members because of special reasons . The ZMZ does not have any provisions like this. However, this does not mean that this is an inadmissible differentiation. Apart from this, Article 3, paragraph 4, ZTuj-2 explicitly defines that this Act (ZTuj-2) is not to be applied to foreigners who have applied for international protection and foreigners who have international protection in the Republic of Slovenia, unless stipulated otherwise in the legislation.
Outcome:
The Supreme Court ruled in favour of the Ministry's appeal, overruled the contested judgment of the court of first instance and rejected the application.
Subsequent proceedings:
The Applicant appealed to the Constitutional Court. However, the appeal was not admitted for consideration.