Slovenia - Slovenian Constitutional Court finds narrow definition of “family members” in International Protection Act unconstitutional

Date: 
Monday, February 9, 2015

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). 

In response, 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 “foreign citizens” (not including international protection claimants) that broadened the definition of family members to other relatives in exceptional cases. 

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.

In light of the foregoing the Constitutional Court surmises that Article 16b of the International Protection Act is unconstitutional and thus quashes the previous judgments which had refused the family reunification application, remitting the case to the Ministry of Internal Affairs for reconsideration.

The ELENA Legal Update would like to thank Grusa Matevzic, the Slovenian ELENA co-ordinator, for providing us with this judgment. 


9 February 2015
This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Best interest of the child
Dependant (Dependent person)
Family reunification
Family unity (right to)
Final decision
Sponsor
Vulnerable person