Case summaries

It is the duty of the administrative authority to establish all of the facts that are important in a procedure, and thus to complete the background information for a decision to the extent that it forms a reliable basis for the decision-making itself.

The administrative authority is not relieved of this duty even with regard to the provisions of Section 34(3) of Act No 71/1967 Coll. on administrative procedure (hereinafter the “Administrative Procedure Code“), according to which the participants in a procedure must put forward the evidence that is known to them in support of their claims. 

The authority issuing residence permits did not issue a residence permit based on family ties because it suspected that the Applicants had entered a so-called marriage of convenience. In this case the Court examined whether the authorities could refuse to issue a residence permit, when the requirements for a permit were met, if they suspected that the Applicant had intensions to evade the rules on entry into the country.

This was an appeal against a decision to expel a widowed illiterate mother and five of her children who had been granted subsidiary protection in Bulgaria. Austria did not have to apply the sovereignty clause, as the situation in Bulgaria did not give rise to a real risk of a violation of Art 3 ECHR. Although the applicant’s sixth child had entered Austria and applied for asylum as an unaccompanied minor two years earlier, there was no violation of Art 8 ECHR because family reunification was possible in Bulgaria and there is no family life worth protecting.

During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.

There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.

Pursuant to Article 30 (6) of Legislative Decree No. 286/1998, disputes concerning authorisations relating to family reunification should be excluded from the jurisdiction of administrative courts and should rather be dealt with by ordinary courts. According to judgment No. 1414/2010 of the Regional Administrative Court in Lazio, ordinary courts may be referred to not only in appeals against refusals to issue a family reunification authorisation, but also to pass autonomous judgments concerning entitlement to obtain authorisations or clearance for family reasons.

The Family Reunification Directive does not make a distinction between whether a family relationship arose before or after the entry of the resident into the Member State. An application for family reunification may not be refused where the sponsor, the resident within EU territory, has proved that he has stable and regular resources which are sufficient to maintain himself and the members of his family, but who, given the level of his resources, will, nevertheless, be entitled to claim special assistance in order to meet exceptional, individually determined, essential living costs, tax refunds, or income-support measures.

The applicant was expelled from Russia on the basis of his religious activities and separated from his infant son as a result. While Russia attempted to justify this on the ground of national security, the Court held that sufficient evidence was not provided and that Articles 5, 8, 9 and 38 of the Convention and Article 1 of Protocol No. 7 had been violated.

The provisions of Article 29(1)(b) of the Legislative Decree of 25 July 1998, No 286, which allow reunification with adult children to take place under stricter conditions than those relating to underage children or dependent parents, are consistent with the Constitution.

The European Parliament sought the annulment of Article 4(1), Article 4(6) and Article 8 of the Family Reunification Directive, as being incompatible with the right to respect for family life and non-discrimination based on age.

The Court found that these provisions created a limited margin of appreciation for Member States which was no greater than that allowed for in ECtHR case law, and could be exercised compatibly with fundamental rights.

The European Court of Human Rights found that the authorities in the Netherlands had violated the right to family life of five Ethiopian nationals by not allowing them to be reunited in the Netherlands.