Slovenia - The Supreme Court of Republic of Slovenia, 16 September 2015, Judgment I Up 112/2015
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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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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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 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:
When balancing the applicant’s right to family reunification and the protection of the rights of others in relation to the welfare of the state, which would be lessened if the application for family reunification were approved, the Supreme Court favours the latter since according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation when protecting the right to family life.
Facts:
A Somali minor was granted refugee status and he applied for family reunification with his parents. The Asylum authority rejected his application one year and five months after the application was submitted and one day before the Applicant turned 18 years old. The Asylum authority rejected the application stating that the Applicant did not sufficiently establish that the links with his parents are strong enough to justify family reunification. The Administrative court agreed with this reasoning regarding the father, but established that the Applicant had exercised family life with his mother before he left Somalia and that he is still connected with her. However, in the light of the principle of proportionality, when balancing the Applicant's right to reunification with his mother and the protection of the rights of others in relation to the welfare of the state, which would be in the event of approval of the Applicant's application reduced for an indefinite period, favoured the latter and dismissed the appeal.
Decision & reasoning:
The Supreme Court agreed with the reasoning of the Administrative court.
Positive obligations under Article 8 of ECHR bind the state only if it comes to economic and social interdependence of family member(s) legally residing in a Member State. The Administrative court correctly observed that, according to the established case-law of the ECtHR relating to Article 8, the issue of (non) existence of family life in each individual case is a matter of facts, which depends on the real existence of close personal ties, and that in cases of family reunification the child's age and level of dependency of a child on the parents have to be taken into account (eg. Jeunesse v. Netherlands).
The Supreme court agrees that in balancing the right of the Applicant and the interest of others in relation to the welfare of the State, the later prevails, because according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation (Berisha v. Switzerland, Jeunesse v. Netherlands, E.M. v. Sweden).
The Supreme Court further agrees that the right under Article 10(3)(a) of the Family Reunification Directive is not absolute and it also does not matter that the best interest of the child should be taken into account and the need for a child to maintain regular personal contact with his/her father and mother (Articles 24(2) and 24(3) of the EU Charter). Rights under Article 7 and Article 24(3) of the EU Charter are not absolute, since Article 52(1) provides the possibility of limiting the rights under the Charter. Taking into account the principle of proportionality, limitations may be made only if they are necessary and genuinely meet the objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The Constitutional Court also already stated that Article 8 of the ECHR does not provide an absolute (unconditional) right to refugees to respect their family life, since it is necessary to find a proper balance between the competing interests of the individual and society as a whole and take into account concerns regarding the protection of public security or the economic well-being of the country, which may be important in order to determine the proper balance.
The Supreme Court also considers that notwithstanding the fact that under Article 5 of the Family Reunification Directive the Asylum authority should decide on a family reunification request within nine months, the Asylum authority cannot be criticized for delaying the procedure despite the fact that it adopted a decision one year and five months after the application and a day before the Applicant turned 18. In the present case, exceptional circumstances were present, as provided in Article 5(4)(2) of the Directive. The establishment of evidence in the present case is not easy; in addition, the Applicant himself partially extended the process because he went to Finland without having informed the competent authority, who could only issue a decision once the applicant submitted documentation and which would consequentially require the applicant’s presence in Slovenia.
Outcome:
The Supreme Court confirmed the decision of the Administrative court which rejected the appeal.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Slovenia - Supreme Court of the Republic of Slovenia, 5 September 2013, I Up 309/2013 |
| ECtHR - Berisha v. Switzerland, Application no. 948/12 |
| ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10 |