Slovenia - Constitutional Court of the Republic of Slovenia,14 January 2015, Judgment U-I-309/13, Up-981/13,
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 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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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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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." |
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Sponsor
Description
"Broadly, a person or entity which undertakes a (legal, financial or personal) engagement, promise or pledge, on behalf of another. In the EU context of Family Reunification, a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her." |
Headnote:
The State is obliged to adopt legislation which allows the refugee to actually exercise the right to respect for family life in its territory. Under Article 53(3) of the Constitution of the Republic of Slovenia the scope of family life firstly includes the nuclear family and secondly, where specific factual circumstances dictate, members of the family who are not nuclear but who are similar or perform the same function.
The legislator limited the right to family reunification by enacting an exhaustive definition of eligible family members for reunification, excluding any other form of family unity. According to the Constitutional Court, the legislator disproportionately restricted the right of refugees to respect for family life and violated the right of the appellant under the Article 53(3) of the Constitution.
Facts:
The facts of the case relate to a rejected family reunification application for a recognised Somalian refugee and her dependent minor sister on account that such a relationship was not covered by the exhaustive definition of family members in Slovenian domestic legislation (Article 16b of the International Protection Act). The minor sister was left in Ethiopia with no adult relative who could take care of her.
The applicant advanced that the Ministry of Interior’s decision had not taken into account Article 8 of the European Convention of Human Rights, Article 10 of the Family Reunification Directive as well as the best interests of the child in the Convention on the Rights of the Child. Moreover, questioning the constitutionality of Article 16b, the applicant advanced that said provision was in fact discriminatory in light of domestic legislation relating to “foreigners” (not including international protection claimants) that broadened the definition of family members to other relatives in exceptional cases.
Decision & reasoning:
Referring to family protection within the Slovenian Constitution, as well as jurisprudence from the ECtHR (Ezzouhdi v. France) and the dependency clause in the Family Reunification Directive, the Constitutional Court advanced that the International Protection Act restricts the right to family reunification to only those specified in Article 16b and thus does not allow for an individual examination of specific circumstances, evidencing, for example, genuine family ties and/or dependency. Thus, the Court highlights that even though the extension of the definition of family members in the Family Reunification Directive is not obligatory; to not have such an option in domestic legislation violates international instruments, such as Article 8 of the ECHR. In this manner the Court advances that Article 16b disproportionately interferes with the right to respect for family life and cannot be balanced against its pursued objective, notably public security.
Outcome:
Article 16b International Protection Act is unconstitutional.
In all pending family reunification procedures, the competent authority may, exceptionally consider other relatives of the recognised refugee (who are not defined in Article 16b of International Protection Act) to be a family member, if the particular circumstances speak in favour of family reunification in Slovenia.
The Supreme Court Judgment and the judgment of the Administrative Court are quashed. The decision of the Ministry of Internal Affairs is abolished and the case is returned to the Ministry for reconsideration.
Subsequent proceedings:
The legislation was amended, and a new paragraph was added to the provision on family reunification for refugees and persons with subsidiary protection which states:
In exceptional cases, the competent authority can consider another relative of a refugee as a family member, if special circumstances speak in favour of family reunification in the Republic of Slovenia.
Special circumstances are given where there is a family community between other relatives, which is because of the specific factual circumstances, in essence, similar to the nuclear family or has the same function as the nuclear family, which is especially true for genuine family ties between family members, physical care, protection, defence, emotional support and financial dependence.
Observations/comments:
The definition given to other family members beyond the nuclear family and to the notion of dependency varies dramatically across EU Member States.
The impact of these diverging interpretations is evidenced in a comparative assessment of family reunification authored by ECRE and Red Cross EU Office. Disrupted Flight: The realities of separated refugees’ families in the EU.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Boultif v Switzerland, Application No. 54273/00 |
| ECtHR - Konstantinov v The Netherlands, Application No. 50435/99 |
| ECtHR - K. and T. v Finland [GC], Application No. 25702/94 |
| ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996 |
| ECtHR - Ezzouhdi v. France, no 47160/99 |
| ECtHR- Tuquabo-Tekle And Others v The Netherlands, Application no. 60665/00, 1 March 2006 |
| ECtHR - Gül v. Switzerland, Application no. 23218/94 |
| ECtHR - Sen v. the Netherlands, Application no. 31465/96, 21 December 2001 |
| ECtHR - Butt v. Norway (Application no. 47017/09), 4.12.2012 |
| ECtHR - Javeed v. the Netherlands, Application no. 47390/99 3.7.2001 |
| ECtHR - A.H. Khan v. UK, Application no. 6222/10, 20.12.2011 |
Other sources:
Article 23(1) of the International Covenant on Civil and Political Rights
Article 16 of Universal Declaration on Human Rights