PROPERTY CENSUS AS TWO DIFFERENT OBSTACLES TO THE EXERCISE OF RIGHTS IN PROCEEDINGS BEFORE THE MINISTRY OF INTERNAL AFFAIRS AND THE MINISTRY OF FINANCE

Sisak, May 11, 2021

 

V.O. is a citizen of the Republic of Serbia. She is married to a Croatian citizen with whom she has two minor children, also citizens of the Republic of Croatia.

After fulfilling the condition from Art. 92, paragraph 1 of the Foreigners Act, i.e. 5 years of approved temporary residence in the Republic of Croatia, V.O. applies for a permanent residence permit.

The administrative procedure is the responsibility of the Service for Foreigners and Asylum of the Ministry of the Interior of the Republic of Croatia.

In parallel with the procedure by which she tries to obtain a permanent residence permit in the Republic of Croatia, V.O. initiates proceedings before the competent office of the Tax Administration, Ministry of Finance of the Republic of Croatia with a request to determine the uncollectibility of debt for health insurance of a foreigner in the Republic of Croatia due to inability to pay, which exceeded 30,000.00 HRK.

In the proposal for debt relief V.O. states that she does not have income or property from which she could settle the overdue debt, without questioning the basic living needs of both her own and her family members.

The competent service of the Tax Administration determined the cumulative income of the family of V.O. for 2018 in which the husband (citizen of the Republic of Croatia) received social assistance from the Center for Social Welfare Beli Manastir, Croatian Pension Insurance Institute paid allowances for two minor children, and receipts were registered for assistance from the Ministry of Science and Education, Popovac Municipality and Osijek-Baranja County. In the year in question, the husband received a little more than 13,000.00 HRK in the name of salary (public works).

The Ministry of the Interior of the Republic of Croatia rejected the request of V.O. for issuing a permanent residence permit referring to the provision of Art. 96, paragraph 1, item 2 of the Foreigners Act, which stipulates that permanent residence would be granted to a third-country national who, in addition to other conditions (referred to in Article 92 and Article 96), also had means of subsistence.

What in each case represents sufficient means of subsistence, is not left to the discretionary or arbitrary assessment of the Ministry of the Interior when deciding on the request in administrative proceedings, but is regulated by the Ordinance on the status and work of third country nationals in the Republic of Croatia. Decree on the method of calculation and the amount of funds for the maintenance of foreigners in the Republic of Croatia. The Ordinance also prescribes what will be considered proof of means of subsistence and that the total calculation does not include funds received on the basis of social assistance, unemployment benefits and child allowance.

The competent office of the Tax Administration rejected the request of V.O. for debt write-off on the basis of health insurance contributions, considering that the cumulative income of household members in the observed period is such that they do not justify the decision on debt forgiveness according to the provisions of the General Tax Law. In addition to receipts based on work or salaries paid to V.O. and her husband, receipts on the basis of social assistance, child allowances as well as all receipts paid as assistance according to the criterion of poor social status of the family V.O.

A lawsuit was filed against the decision of the Ministry of the Interior, the Service for Foreigners and Asylum rejecting the request for permanent residence with the Administrative Court in Osijek with a request to annul the decision and return the case for retrial.

The court rejected the lawsuit, and assessed that the defendant conducted a lawful procedure and made a correct decision rejecting the request for approval of permanent residence because V.O. there are no funds that can be considered sufficient for subsistence under applicable regulations.

Referring to the provision of Art. 123, paragraph 1 of the General Administrative Procedure Act, a proposal was submitted to the competent office of the Tax Administration for the renewal of the procedure in which the write-off of the debt of V.O. Namely, the husband of V.O. as a member of the household performed temporary jobs in public works which were taken into account as if it were a permanent employment of one family member, so it was interpreted that the family has the means at its disposal to settle the debt. At the time of deciding on the request to write off the debt, the husband stopped working on public works and the household income decreased, and the total overdue debt increased. These are circumstances that actually occurred after the decision became final, and could affect the adoption of a different decision.

Deciding in the first instance, and which was confirmed in the appellate procedure by the decision of the Independent Sector for the second instance administrative procedure, the proposal for reopening the procedure was rejected with the explanation that the changes were made, after the negative decision, but they are not enough to make a different decision.

An appeal was filed against such a decision with the Osijek Administrative Court, requesting the annulment of the impugned decision refusing to reopen the proceedings and respecting the real social status of the plaintiff, who cannot objectively settle the due debt or prevent debt growth without endangering her family members.

To date, the court has not rendered a verdict in this case.

Therefore, these are two separate, parallel proceedings for exercising the rights of a foreign citizen V.O. which were negatively resolved on the basis of a finding of non-compliance with a legal requirement relating to the applicant’s inadequate financial circumstances.

According to the current provisions, the Ministry of the Interior of the Republic of Croatia interprets that V.O., does not have sufficient means of subsistence to meet the conditions for approval of permanent residence in the Republic of Croatia, while the Ministry of Finance, Tax Administration for the same period determines that the household V.O. cumulatively generates income that does not allow the decision to write off the debt on the basis of health insurance of foreigners in the Republic of Croatia, meaning indirectly that the person has sufficient means.

From the latter, the confusion of our legislative system and discriminatory treatment in individual cases is clear.

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