Foto: PGP Sisak
Minor citizen of Bosnia and Herzegovina E.M. was born and lives in Zagreb since 2006 in a family with his mother, sister and brother. They are provided with housing by allocating a state-owned apartment outside the area of special state concern in the Republic of Croatia (ASSC) and are supported thanks to the regular income of the employed mother. E.M. regularly attends school and has the status of a foreigner of approved temporary residence in the Republic of Croatia regularly and without interruption since 2013.
The application for permanent residence permit of the minor E.M. was rejected by the Ministry of the Interior decision of 18 March 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 the minor E.M. has not enough means of subsistence.
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 E.M. does not meet the conditions because this possibility applies only to foreigners who had at least 10 years of refugee status or had 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, paragraph 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 the provision of paragraph 94, paragraph 4, which provides for the approval of permanent residence for a person who does not meet the prescribed conditions if he/she is: “a third country national who was born and lives in Croatia, but because justified reasons, which he/she could not influence, he/she did not have a regulated stay. Given that E.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 light of the request for permanent residence, the lawsuit requires the court to respect the principle of status protection of the child through status of the parents. In the present case, it is only the mother as the sole guardian, who has the status of a foreigner with an approved permanent residence.
The judgment of the Administrative Court in Zagreb of 24 August 2020 rejected the claim for annulment of the decision of the Ministry of the Interior of the Republic of Croatia.
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 requires the application of a fundamentally different approach in understanding the content, purpose and meaning, and interpretation of legal norms governing the approval of permanent residence, in order to acknowledge reasons for purposefulness instead of applying 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 legal field, in a democratic society of high level of development as is the case with the Republic of Croatia, should not outweigh the objective interests and rights of individuals in decision-making, as there is not the slightest reason to believe that granting permanent residence status to a child born in the Republic of Croatia would in any way jeopardize 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 the child E.M. as the defendant unjustifiably insists.
On 17 November 2020, the High Administrative Court ruled (Usž-3938 / 20-2) by rejecting the appeal and upholding the judgment of the Administrative Court in Zagreb, number: Usl-1505 / 19-10 of 24 August 2020. The High Administrative Court considers all the grounds of appeal to be unfounded, and considers the first-instance judgment to have been rendered on the basis of correctly established facts and with the correct application of substantive law, and it found no violation of the rules of procedure.
On February 9, 2021, CRP Sisak filed a constitutional complaint, alleging the following violations of the Constitution and constitutional law: the right to equality, the constitutional guarantee of legality of individual acts of state authorities, the right to a fair trial, the guarantee of respect and the first protection of personal, family life, dignity, reputation and honour and a guarantee of protection of motherhood, children and youth.
CRP Sisak continues to monitor this case, because CRP believes that the right of the child is endangered and we would like to emphasize the opinion of the Croatian Ombudsperson for Children, who, in another case, in her address to the Ministry of the Interior states, among other things:
“The Convention on the Rights of the Child requires Member States to recognize all the rights of every child in their jurisdiction, that any decision concerning the child must be in his or her best interests and that the child has the right not to be separated from his or her parents. This can only be achieved if the child is allowed to follow the residence status of his/her parents. ”
We are waiting for the decision of the Constitutional Court of the Republic of Croatia.