Slovenian case solution

At the time beeing the Ministry of Interior was the determining authority for granting permits for temporary residence.

Traditionally, the Administrative Court of the Republic of Slovenia performs a judicial review of administrative acts and decisions, including immigration and aliens residence cases. Nevertheless, it has a legal power to conduct a full review of law and facts, and may also adjudicate in so called full jurisdiction dispute, which means, that it may itself grant a permit for temporary residence, as well.

According to the legislation on aliens, an alien may be granted a permit for temporary residence in one of the following forms: 
for employment or work purposes;
for study puposes;
for reuniting of families;
as a permission to tolerated stay within the territory of Slovenia after the refugee status or subsidiary protection under International Protection Act has not been granted to a person, seeking the refugee status under the Geneva Convention;

In respected case Mrs. S. H., who is a citizen of Bosnia and Herzegovina in possesion of a permit for temporary residence in the Republic of Slovenia for the purpose of employment or work, applied for a residence permit for her minor unmarried daughter A. H. for the purpose of reuniting of family and the right to family integrity. Ministry of interior as a competent authority by an administrative decision, dated on September 2, 2002, refused to issue a permit for temporary residence for A.H. under the Paragraph 6 of the Article 32 in connection with the Article 36 of the Aliens Act, arguing that Mrs. S. H., when applied for her residence permit, did not stated consistent to the Paragraph 6 of the Article 32 of the Aliens Act, that she intended to file for the residence permit for her minor unmarried child A.H.

The applicant Mrs. S. H. filed a request for temporary decree together with the lawsuit at the Administrative Court of the Republic of Slovenia seeking the annulment of this administrative act arguing that she has a right to respect for her private and family life under the Article 8 of the ECHR, as well as under the Article 36 of the Aliens Act and under the Constitution of the Republic of Slovenia (Article 53 and 54) and under the Convention of the Rights of the Child (Article 27, paragraph 2).

On request for temporary decree the Administrative Court of the Republic of Slovenia on October 18, 2002, decided under the Article 8 of the ECHR, as well as under the Article 36 of the Aliens Act and under the Constitution of the Republic of Slovenia (Article 8 and 56) and under the Convention of the Rights of the Child (Article 3, 7, 8, 9 and 10), that the Ministry of Interior had to issue a residence permit in due time under the Article 69 of the Law on Administrative Disputes to the applicant“s minor unmarried daughter A.H. for the purpose of reuniting of a family for a specific period of time – until final court decision on the lawsuit.

On October 17, 2002, the Official Gazette of the Republic of Slovenia No. 87/2002 published the ammandements on Law on Aliens, including the deleted Paragraph 6 of the Article 32.

Upon consideration of the respective case the Administrative Court of the Republic of Slovenia decided, under the Article 8 of the ECHR, as wel as under the Article 36 of the Aliens Act and under the Constitution of the Republic of Slovenia (Article 8 and 56) and under the Convention of the Rights of the Child (Article 3, 7, 8, 9 and 10), that the contested administrative act has been removed. The court decided, that the Ministry of Interior has to conduct the administrative concideration of the respective case of Mrs. S.H. one more time under the provisions of the Article 8 of the ECHR, as well as under the Article 32 in connection with the Article 36 of the Aliens Act, as ammended in 2002, and under the Constitution of the Republic of Slovenia (Article 8 and 56) and under the Convention of the Rights of the Child (Article 3, 7, 8, 9 and 10).

As the Ministry of interior had not filed an appeal at the Supreme Court of the Republic of Slovenia as the court of second instance the judgement of the Administrative Court became final on March 27, 2003.

A constitutional complaint to the Constitutional Court as the last possible legal remedy in in the case of human rights violation in the respective case has not been filed.

The Slovenian Constitution has several provisions that relate to foreign nationals. Article 22 of the Slovenian Constitution states, that everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local communities authorities and bearers of public authority that decide on his rights, duties or legal interests. The Constitution does not make any difference between terms foreign nationals and EU Member states nationals (except Slovenians).

Judges who are bound not only to the Constitution of the Republic of Slovenia and national legislation, but to the Community law, international treaties and statutes as well, must interpret all the provisions of the aliens legislation in a compliance with fundamental rights under the ECHR and Costitution of the Republic of Slovenia. Judges may apply statutory provisions of national legislation insofar as they are consistent with the relevant international treaties and conventions. Otherwise, they must stop proceeding and refer the issue of the constitutional validity of the statute to the Constitutional Court (Article 156 of the Constitution).