Case summaries
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.
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.
A national law which requires the sponsor and his/her spouse to have reached the age of 21 by the date on which the application for family reunification is submitted (rather than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the Family Reunion Directive (Directive 2003/86/EC)
The European Court of Human Rights (ECtHR) found that the procedure for examining applications for family reunification had to contain a number of elements, having regard to the applicants’ refugee status on the one hand and the best interests of the children on the other, so that their interests as guaranteed by Article 8 of the Convention from the point of view of procedural requirements were safeguarded.
ECtHR majority rules that the temporary return of a homosexual man from Sweden to Libya would not violate Article 3 as short term concealment of sexual orientation would be tolerable in order to reduce risk of persecution.
The Court examined the complaints of a Somali national concerning her detention conditions in Malta (Article 3), which deteriorated her mental health and resulted in inhuman and degrading treatment. She further alleged that her detention was in breach of Article 5 § 1, 2 and 4 (Right to liberty and security).
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.
The Immigration Service had rejected applications for residence permits based on family ties, because the Applicants had not been heard in person. Conducting an oral hearing with the Applicants was not mandatory for establishing the requirements for family reunification. The refusal by the Immigration Service to conduct the hearing had in practice lead to the rejection of the applications for residence permits. The Administrative Court considered that the conduct of the authorities had caused undue harm to the Applicants.
The Council for Alien Law Litigation confirmed that those who enjoy subsidiary protection are equivalent to recognised refugees, for the purposes of family reunification. This means that they are exempted from additional conditions in relation to housing, health insurance, and means of subsistence provided that the application for family reunification is submitted within one year and the family ties existed before the arrival in Belgium of the reuniting person (who enjoys subsidiary protection). This is despite the fact that those who enjoy subsidiary protection do not fall within the scope of application of the Family Reunification Directive.
Applicant M was a citizen of Algeria who applied for a residence document in Finland on grounds of family relations. He/she was married to a sponsor called L and they had a joint minor child. L had another child from a previous marriage. A prerequisite for M to be granted a residence document was for him/her to have sufficient income, which he/she did not have. There was also the question of whether denying a residence document breached the Union citizen’s rights under Article 20 of the TFEU. The Supreme Administrative Court ruled that denying a residence document did not breach the Unio citizen’s rights. In addition, there were no factors which would support deviating from the means of support prerequisite as stated in the law.