Slovenia - Constitutional Court of the Republic of Slovenia,14 January 2015, Judgment U-I-309/13, Up-981/13,

Country of Decision:
Country of Applicant:
Date of Decision:
14-01-2015
Citation:
U-I-309/13, Up-981/13
Court Name:
Constitutional Court of the Republic of Slovenia
Relevant Legislative Provisions:
International Law
International Law > UN Convention on the Rights of the Child
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Recital (2)
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 7
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Recital (4)
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Recital (8)
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Recital (9)
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Recital (10)
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 4 > 1.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 4 > 2.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 4 > 3.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 5
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 10 > 1.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 10 > 2.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 10 > 3.
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003 > Article 16
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Recital (19)
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 52
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 53
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 23
National / Other Legislative Provisions:
Slovenia - International Protection Act (ZMZ) Art (16)b
Slovenia - International protection Act (ZMZ) Art 17
Slovenia - Constitution Art 2
Slovenia - Constitution Art 8
Slovenia - Constitution 14(2)
Slovenia - Constitution Art 15(5)
Slovenia - Constitution Art 53(3)
Slovenia - Constitution Art 54
Slovenia - Constitution Art 56
Slovenia - Constitution Art 153(2)
Slovenia - Aliens Act Art 3(4)
Slovenia - Aliens Act Art 47(4)
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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.

 
Other sources cited: 

Article 23(1) of the International Covenant on Civil and Political Rights

Article 16 of Universal Declaration on Human Rights

Case Law Cited: 

Slovenia - Constitutional Court, no. U-I-18/02, 24.10.2003

ECtHR - A.H. Khan v. UK, Application no. 6222/10, 20.12.2011

ECtHR - Javeed v. the Netherlands, Application no. 47390/99 3.7.2001

ECtHR - Butt v. Norway (Application no. 47017/09), 4.12.2012

ECtHR - Gül v. Switzerland, Application no. 23218/94

ECtHR - Ezzouhdi v. France, no 47160/99

ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996

ECtHR - K. and T. v Finland [GC], Application No. 25702/94

ECtHR - Konstantinov v The Netherlands, Application No. 50435/99

ECtHR - Boultif v Switzerland, Application No. 54273/00