A brief overview of the course of the procedure for regulating the status of legal residence in the Republic of Croatia for a person who is a “third country” citizen
Xisen Kameri was born on July 16, 1998, in Zagreb. His parents are citizens of the Republic of Serbia. His first temporary residence was granted in 2010, and until the day of submitting the application for permanent residence, he had not previously had 5 years of uninterrupted legal residence in the Republic of Croatia, although he had not left the territory of the Republic of Croatia since birth.
On September 12, 2016, Xisen submitted a request to the Police Administration of Primorje-Gorski Kotar for the issuance of a permanent residence permit in the Republic of Croatia. After a negative decision in the administrative procedure, a lawsuit was filed with the Administrative Court in Rijeka, which by judgment No. Usl-603/17 of 5 September 2018 annulled the decision of the Ministry of the Interior of 10 February 2017, ordered a retrial with instructions to take into account the special living circumstances of the applicant that made it difficult for him to regulate his citizenship and obtain valid foreign documents. At that time, Xisen Kameri was placed in an educational institution for the execution of an educational measure, and enrollment in the books of citizens of the Republic of Serbia required going to Serbia and registering residence in order to meet the prerequisites for issuing a valid travel document. The court instructed the defendant (MUP-RH) to take an active approach in resolving the practical administrative difficulties of the plaintiff (Xisen Kameri) and to document all actions taken.
In the repeated procedure, the Ministry of the Interior rejected the request for a permanent residence permit, by a decision of 10 February 2017, having determined that the applicant did not meet the conditions for a permanent residence permit referred to in Art. 96 para 1, items 1, 2, and 3 of the Foreigners Act, i.e. did not meet the cumulatively prescribed conditions because he did not have a valid travel document, had no means of subsistence in the prescribed amount and did not have health insurance.
Considering the instruction of the Administrative Court, the Ministry of the Interior refers to the activities carried out by CRP Sisak related to providing legal assistance to Kamer Xisen, believing that this fulfills the obligation to actively participate and provide assistance in the process of regulating the status of foreigners in Croatia.
REASONS FOR INITIATING AN ADMINISTRATIVE DISPUTE
On September 23, 2019, CRP Sisak filed a lawsuit against the negative decision of the Ministry of the Interior with the locally competent Administrative Court in Rijeka. The lawsuit could not dispute the fact of non-compliance with the cumulative requirements of Art. 96 of the Foreigners Act, but it is focused on two requirements. The request to respect the so-called transitional element or circumstances caused by the creation of new states on the territory of the former SFRY, which led to the status of de facto statelessness in Xisen Kameri case (citizenship is determinable, but the fact of possible determinacy in no way helps a person who cannot obtain a travel document and regulate the status of a foreigner in the Republic of Croatia) and upon request to achieve the principles of purpose and meaning in administrative proceedings when deciding on the status of Xisen Kameri, whose position is incomparable with the usual position of foreign nationals in the Republic of Croatia, and recognize the notorious fact that he cannot go to his country because he has no country other than the Republic of Croatia, nor is the return procedure feasible, nor forced return, and by refusing to acquire the right to permanent residence, Xisen Kameri is prevented from any prospects for organizing normal and functional life within the Croatian legal order.
JUDGMENT OF THE ADMINISTRATIVE COURT IN RIJEKA
The Administrative Court in Rijeka, according to the judge of that court Alen Rajko, by a judgment of January 29, 2020, found the claim well founded and annulled the decision of the Ministry of the Interior and issued a decision resolving the legal matter itself by granting the plaintiff-applicant Xisen Kameri permanent residence in the Republic of Croatia. By the same decision, the defendant was ordered to make an elaborate decision and carry out all possible additional actions in the administrative procedure, related to the approval of permanent residence.
This is a very rare, but also courageous decision that directly applies the principles expressed in the provisions of the Constitution of the Republic of Croatia, Council Directive 2003/109 / EC on the status of third-country nationals with long-term residence, the Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention. on the legal status of stateless persons, as well as on the interpretation of applicable principles through decisions of the Constitutional Court of the Republic of Croatia and the European Court of Human Rights. The ECHR judgment in Hoti v. Croatia stands out in particular as a source of law.
In the reasoning of the judgment, the court explains in detail the reasons for accepting the lawsuit, which is not based on the usual emphasis on understanding the semantics of legal provisions or formal procedural errors, but on the requirement to apply the teleological principle of interpreting legal norms according to their purpose and purpose in a specific case. The Court also links in detail its jurisdiction in establishing a hierarchy of legal norms and the direct application of the Constitutional and Convention Principles in reaching a judgment, although this is a clear conflict with a narrower, traditional understanding of the notion of legality.
It is difficult and ungrateful to predict whether, according to the defendant’s appeal, the High Administrative Court of the Republic of Croatia will confirm the stated views of the court of first instance.
The reputation enjoyed by Judge Alen Rajko in a legal area that is obviously a subject of his serious interest, and which also requires serious personal engagement, certainly affects the perspective from which the higher court will view this decision.
Adoption of the views expressed in this case is unlikely to significantly affect the work of the state administration in terms of the level of formalism or the established administrative insistence on a rigid understanding of the wording of laws and bylaws, but more and more courageous decisions of judges can be expected, and not only of administrative courts, but others as well.