Slovenia - Constitutional Court of the Republic of Slovenia, 16 June 2016, Judgment U-I-68/16, Up-213/15
Keywords:
| Keywords |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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:
Regarding the protection of the right to family life in asylum procedures, same-sex partnerships are in a comparable situation with heterosexual relationships. A distinction between the applicants for international protection based on sexual orientation is not in compliance with the Constitution. Article 16b(1) of IPA, which does not consider persons of a same-sex living in established partnership as family members, is inconsistent with the right to non-discriminatory treatment in the exercise of the right to family life.
Facts:
The Asylum authority rejected asylum applications of a homosexual couple (one from Serbia and one from Kosovo) who lived in cohabitation. The Administrative court rejected the appeal regarding only one applicant. The rejected applicant appealed claiming that both applicants should be treated as family members and in order to respect the right to family life the authority should have examined together the fear of persecution of both applicants in both countries and whether the applicants could be returned together to any of their countries of origin. The Supreme Court took the view that on the basis of Article 16b(1) of the International Protection Act (IPA), same-sex partners living in a de facto cohabitation cannot be treated as family members. Consequently, it dismissed the appeal allegations regarding the erroneous assessment of the conditions for international protection of family members. The Constitutional Court has begun a process to review the constitutionality of Article 16b(1) of IPA.
Decision & reasoning:
The Constitutional Court has ruled that in the present case the issue is discriminatory treatment in regulating the situation of family members of applicants for international protection. It found that Article 16b(1) of the IPA in determining persons who may be considered as family members treats differently homosexual and heterosexual relationships. It stated that the competent authorities in the asylum procedure are adopting decisions that may affect the family life of applicants, therefore the differential treatment in the contested provision relates to the exercise of the right to family life.
The ECtHR has adopted the position that same-sex couples living in a stable real partnership fall within the concept of private and family life under Article 8 of ECHR. The Constitutional Court in its decision no. U-I-212/10 took the view that in today's society there is no more disagreement about the fact that same-sex couples, as couples of different sexes, create loving and lasting partnerships. This also means that persons living in a same-sex partnership create a community that is essentially similar to a primary family or has the same function as the primary family, which means genuine family ties between family members, physical care, protection, emotional support and financial dependence.
The Constitutional Court ruled that regarding the protection of the right to family life in asylum procedures, the same-sex partnerships are in a comparable situation with heterosexual relationships. The distinction between the applicants for international protection is based on sexual orientation. The Constitutional court could not find any reason based on which such distinction would be in compliance with the Constitution. It concluded, that the Article 16b(1) of IPA is inconsistent with the right to non-discriminatory treatment in the exercise of the right to family life.
Outcome:
Since the constitutional complaint contested the judgment of the Supreme Court which was based on the IPA that is inconsistent with the Constitution, the Constitutional Court quashed the judgment and remitted the case to the Supreme Court for reconsideration.
Observations/comments:
The IPA, as currently in force, defines family members as spouse, registered partner or partner with whom the applicant lives in a long lasting partnership.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - K. and T. v Finland [GC], Application No. 25702/94 |
| ECtHR - Johnston and Others v. Ireland, Application No. 9697/82 |
| Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 |
| ECtHR - Karner v. Austria, No. 40016/98, 24 July 2003 |
| ECtHR - Kozak v. Poland |
| ECtHR - P. B. and J. S. v. Austria |
| ECtHR - J. M. v. UK |
| ECtHR - Elsholz v. Germany |
| ECtHR - Johnston and others v. Ireland |
| ECtHR - Pajić v. Croatia |
| ECtHR - Schalk and Kopf v. Austria |
| ECtHR - Z. H. and R. H. v. Switzerland |
Other sources:
M. Končina Peternel in: L. Šturm, Komentar Ustave Republike Slovenije, Dopolnitev-A, Fakulteta za državne in evropske študije, Ljubljana 2011, p. 894
Article 23(1) ICCPR
Article 10(1) ICESCR