Slovenian case study

LEGAL FRAMEWORK

EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 – Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of his right except such as in accordance with the law and is necessary in a democtaric society in the interests of national security, public safety or the econimic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

CONVENTION ON THE RIGHTS OF THE CHILD

Article 27
(2)The parent(s) or others responsible for the child have the primary responsibitility to secure, within abilities and financial capacities, the conditions of living necessary for the child”s development.

CONSTITUTION of the Republic of Slovenia of 23 December 1991

Article 3 a (added in year 2003, Official Gazette of the Republic of Slovenia, No.24/03) 
Pursuant to a treaty ratified by the National Assembley by a two-thirds majority vote of all deputies, Slovenia may transfer the exercise of part of its soveirgn rights to international organisations which are based on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law and may enter into defensive alliance with states which are based on respect for these values.

Article 5
In its own territory, the state shall protect human rights and fundamental freedoms.

Article 8 
Laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.

Article 53
The state shall protect the family, motherhood, fatherhood, children and young people and shall create the necessary conditions for such protection.

Article 56
Children enyoj special protection and care. Children shall enyoj human rights and fundamental freedoms consistent with their age and maturity.

LAW ON ADMINISTRATIVE DISPUTES of 1997
Article 1
(2) In an administrative dispute, the court shall rule on the legality of individual final acts issued by state bodies, local community bodies or other holders of public authorisation.

(3) In an administrative dispute, the court shall adjudicate on the legality of individual acts and actions which interfere with the constitutional rights of an individual, unless a different form of due process has been guaranteed.

Article 62
(1)The court may, in an administrative dispute from the third paragraph of Article 1 of this Law, establish that the act or action is illegal, ban the continuation of individual actions, decide on the plaintiff“s request to be reimbursed for damages, and order, when necessary, the removal of a violation of constitutional rights and reestablishment of a legal state of affairs.

(2) If an illegal state of affairs has continued, the court shall, without delay, ban the continuation and adopt measures in order to establish the legal state of affairs with a resolution, against which an appeal may be lodged within three days. The Supreme Court shall rule on the appeal within three days of receiving the appeal.

(3) If the court is unable to decide on the matter without delay in a case from the preceding paragaraph, it may pass ex officio a temporaray decree, in accordance with Article 69 of this Law.

Article 69 (Temporary decree)
(1) If, under the conditions from the second paragraph of Article 30 of this Law, the competent body does not suspend the implementation of an administrative act until a court ruling has been passed, the plaintiff may request a suspension from the court for the same reasons.

(2) The plaintiff may request a temporary decree to temporarily regulate the situation in connection with the contentious legal relationship, if such a regulation appears to be necessary in order to prevent more serious damage or a threat of violence, particulary in permanent relationship, from being caused.

(3) A temporary decree from the preceding paragraph shall lie within the competence of the court responsible for making decision in the lawsuit.

(4) The court shall, within seven days of receiving a request, make the decision to issue a temporary decree in a resolution, which must contain the reasons for it.

ALIENS ACT of 1999

Article 32
(1) To aliens who wish to reside in the Republic of Slovenia for the purposes of employment, self-employement and work, or purposes for the performance of independent professional or other income gaining activities, a permit for temporary residence may be issued:

(1.1.) if a permit for temporary residence is issued within the quota of permits which are issued to the aliens according to the second and third paragraph of the Article 5 of this Law;

(1.2.) if they are in the possesion of a work permit or any other permit required in accordance with the law governing the employment and work of aliens, or if they fulfill the conditions which are prescribed by laws and other regulations of the Republic of Slovenia for the performance of specific economic activity.

(2) Aliens shall be issued with permit for first residence in the Republic of Slovenia specified in the preceding paragraph of this Article for the same period for which the work permit or any other appropriate permit is valid, however for no longer than one year.

(3) Subsequent to its expiry, the permit specified in the preceding paragraph of this Article may be extended if the conditions under Paragraph 1 are fulfiled, however for no longer than two years.

(4) An alien who, on the basis of a permit specified in Paragraph 1 of this Article, has been residing in the Republic of Slovenia uninterruptedly for three years may be issued with a permit for a period exceeding two years by the competent authority pursuant to the conditions under Paragraph 1 of this Article.

(5) The Government of the Republic of Slovenia shall issue a regulation setting out cases in which the quota specified in Article 5, Paragraph 2 hereof need not to be observed in the process of issuing the permit specified in Paragraph 1 of this Article.

(6) In the process of filing an application for the first permit of temporary residence for the purposes from the first paragraph of this Article, aliens should state if they intend to file for the permit for temporary residence of their spouse and minor unmarried children or they can not expect to fulfill the right of reuniting of a family. The spouse and the minor children of an alien if they fulfill the specific conditions by this Law, a permit for temporary residence may be issued as a permit for unrelated permission for temporary residence which does not consist the permission for work or a performance of a specific income gaining activities.

(7) The Government of the Republic of Slovenia shall issue a regulation specifying the cases in which an alien does not require a residence permit for the purpose of employement or work.

Article 36
(1) Aliens who are in possesion of a permit for permanent residence or of a permit for temporary residence in the Republic of Slovenia for the purposes of employment or work or study, education or specialisation shall, under the conditions and in accordance with this Act, be recognised the right to reunion, preservation and re-acquisition of family integrity with their immediate family members who are aliens.

(2) In accordance with this Act, immediate family members shall be deemed to be spouses, juvenile unmarried children (minors) and parents of minors. The responsible authority may, exceptionally and at its own discretion, deem other close relatives of the alien to be immediate family members if there are special circumstances in favour of the reuniting of the family in the Republic of Slovenia.

(3) A residence permit for the reuniting of a family shall be issued at the request of an alien specified in Paragraph 1 of this Article, who must submit evidence of existing sufficient spacious place of residence according to the standards of the Republic of Slovenia and sufficient funds to support those immediate family members who intend to reside in the country.

(4) A residence permit for the reuniting of a family or the preservation of family integrity shall be issued to a member of an alien“s family for a period of time equal to the residence permit granted to the alien who is exercise the right to family integrity, and may be extended together with his/her permit.

(5) The competetnt authority may extend the residence permit of an immediate family member of an alien specified in Paragraph 1 of this Article even in the event of the death of the alien concerned or of the end of the marriage, however the duration of the marriage in the Republic of Slovenia was at least three years.

ALIENS ACT 1999 as ammended in 2002
Article 32

(1) A permit for temporary residence may be issued to aliens who wish to reside in the Republic of Slovenia for the purposes of employment or work, if they are in the possesion of a work permit or any other permit required in accordance with the law governing the employment and work of aliens, or if they fulfill the conditions which are prescribed by laws and other regulations of the Republic of Slovenia for the performance of specific activities.

(2) Aliens shall be issued with permit for first residence in the Republic of Slovenia specified in the preceding paragraph of this Article for the same period for which the work permit or any other appropriate permit is valid, however for no longer than one year.

(3) Subsequent to its expiry, the permit specified in the perceding paragraph of this Article may be extended if the conditions under Paragraph 1 are fulfiled, however for no longer than two years.

(4) An alien who, on the basis of a permit specified in Paragraph 1 of this Article, has been residing in the Republic of Slovenia uninterruptedly for three years may be issued with a permit for a period exceeding two years by the competent authority pursuant to the conditions under Paragraph 1 of this Article.

(5) The Government of the Republic of Slovenia shall issue a regulation setting out cases in which the quota specified in Article 5, Paragraph 2 hereof need not to be observed in the process of issuing the permit specified in Paragraph 1 of this Article.

(6) The Government of the Republic of Slovenia shall issue a regulation specifying the cases in which an alien does not require a residence permit for the purpose of employement or work.

Article 36
(1) With the exception of aliens who are in possesion of a temporary residence permit for the purposes of seasonal work, aliens who are in possesion of a permit for permanent residence or of a permit for temporary residence in the Republic of Slovenia shall, under the conditions and in accordance with this Act, be recognised the right to reunion, preservation and re-acquisition of family integrity with their immediate family members who are aliens.

(2) The application for the issue of a residence permit shall be filed with the diplomatic/cosular representative of the Republic of Slovenia abroad or with the competent authority in the Republic of Slovenia.

(3) In accordance with this Act, immediate family members shall be deemed to be spouses, juvenile unmarried children (minors) and parents of minors. The responsible authority may, exceptionally and at its own discretion, deem other close relatives of the alien to be immediate family members if there are special circumstances in favour of the reuniting of the family in the Republic of Slovenia.

(4) A residence permit for the reuniting of a family shall be issued at the request of an alien specified in Paragraph 1 of this Article, who must submit evidence of sufficient funds to support those immediate family members who intend to reside in the country.

(5) A residence permit for the reuniting of a family or the preservation of family integrity shall be issued to a member of an alien“s family for a period of time equal to the residence permit granted to the alien who is exercise the right to family integrity, and may be extended together with his/her permit. The permit for residence for reuniting of a family may be extended for a period of validity of two years for an immediate family member of an alien in possesion of a permit for permanent residence in the Republic of Slovenia; if he/she has been residing in the Republic of Slovenia for three years uninterruptedly on the basis of a permit for temporary residence, the permit specified in Paragraph 1 of this Article may also be isued for a longer period.

(6) The alien“s spouse and children shall, on condition that they fulfil the conditions stipulated by law, be issued with a residence permit as an unrelated permit.

(7) The competetnt authority may extend the residence permit of an immediate family member of an alien specified in Paragraph 1 of this Article even in the event of the death of the alien concerned or of the end of the marriage, however the duration of the marriage in the Republic of Slovenia was at least three years. Such a permit may only be extended once for a period of validity not exceeding one year.

FACTS OF THE SLOVENIAN CASE

Mrs. S. H. is a citizen of Bosnia and Herzegovina. On February 12, 2001 she applied for a permit for temporary residence for employment or work purposes in the Republic of Slovenia for the first time. Competent authority issued a permit for temporary residence in the Republic of Slovenia. Then she filed an application for an extesion of the permit with the competent authority in the Republic of Slovenia prior to the expiry of the validity of the issued permit. After that she filed an application for an extesion of the permit for the second time.

Later on she filled an application for a permit for temporary residence for her minor daughter A. H., a citizen of Bosnia and Herzegovina for the purpose of reuniting of family and the right to family integrity in the Republic of Slovenia. Ministry of interior as a competent authority on September 2, 2002, refused to issue a permit for temporary residence for her minor, 17 years aged daughter A. H.

Seeking the annulment of this administrative act the applicant S. H. filed on October 16, 2002, a lawsuit at the the Administrative Court of the Republic of Slovenia. As a plaintiff she argued that she has a right to respect for her private and family life under the Article 8 of the ECHR and under the Constitution of the Republic of Slovenia (Article 53 and 54) as well as under the Article 36 of the Aliens Act and under the Convention of the Rights of the Child (Article 27, Paragraph 2). Additionally in her lawsuit the plaintiff requested from the court a temporary decree in accordance with Article 69 of the Law on Administrative Dispute to issue a residence permit to her minor daughter A.H.