Example of a procedure on an application for a permanent residence permit of a minor foreigner who does not formally meet the legal requirements prescribed by the Foreigners Act

A minor citizen of Bosnia and Herzegovina, A.M. was born and lives in Zagreb since 2009 in a family with mother, sister and brother. They are provided with housing by allocating a state-owned apartment outside the Areas of Special State Concern and are supported by the regular income of the employed mother. A.M. regularly attends primary school and has the status of a foreigner of approved temporary residence in the Republic of Croatia regularly and without interruption since 2013.

Application for permanent residence permit of minor A.M. was rejected by the Ministry of the Interior by the decision of March 18, 2019, explaining the negative decision by failing to meet the cumulatively prescribed conditions from Art. 96 of the Foreigners Act, because during the application assessment procedure, it was established that A.M. had no enough means of subsistence and there was no health insurance.

The provision of Art. 96, paragraph 2 of the Foreigners Act, however, provides for the possibility of granting permanent residence to a foreigner who does not meet all the conditions from Art. 94, but in this case A.M. does not meet the conditions because this possibility applies only to foreigners who have had refugee status for at least 10 years or had a residence in the Republic of Croatia on October 8, 1991.

A lawsuit was filed against the negative decision of the Ministry of the Interior with the competent Administrative Court in Zagreb with a request to annul the challenged decision.

The lawsuit does not dispute the facts established in the administrative procedure, but refers to the provision of Art. 94 para 4 of the Foreigners Act, and requires the application of the principle of purposefulness of the decision instead of excessive formalization. In essence, the lawsuit indicates that from provision of the article 94 para 4, which provides for the approval of permanent residence and a person who does not meet the prescribed conditions if a person is: “a third-country national who was born and lives in the territory of the Republic of Croatia, but for justified reasons, which he could not influence, did not have a regulated residence.”, can clearly interpret the will of the legislator to open the possibility of granting the requested status to persons who, for various and unpredictable reasons, did not even have a regulated stay in the Republic of Croatia. Given that A.M. as a child cannot be held responsible for any relevant life circumstances, and the fact of proper regulation of temporary residence cannot be considered an obstacle in the light of the request for permanent residence, the lawsuit requires the court to respect the principle of status protection of the child, through parents, in this case only the mother as the sole guardian, who has the status of a foreigner with an approved permanent residence.

By the Judgment of the Administrative Court in Zagreb of July 10, 2020, the claim for annulment of the decision of the Ministry of the Interior of the Republic of Croatia was rejected.

The court fully accepted the arguments and legal understanding of the defendant because it considers them to be confirmed through the existing documentation, established facts and relevant legal provisions.

Such a verdict was appealed to the High Administrative Court of the Republic of Croatia, which does not present new facts or evidence, but seeks the application of a fundamentally different approach to understanding the content, purpose and meaning, and interpretation of legal norms governing the approval of permanent residence, as well as acknowledgement of the reasons for purposefulness instead of applying an excessive formalism based on a traditional-rigid understanding of legality.

A possible argument for the protection of the public interest, which is understood as an indispensable part of regulations in this area of ​​law, in a democratic society of high development, as is the case with the Republic of Croatia, should not override the objective interests and rights of the individual. There is no the slightest reason to believe that granting permanent residence status to a child born in the Republic of Croatia would in any way endanger national security, public interest or any other value, and which can reasonably be believed to be protected by a request for repeated annual approval temporary residence for minor A.M. as the defendant unjustifiably insists.

The case is before the High Administrative Court.

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