S.M. was born on November 22, 1971 in Slavonski Brod, the father of the client is a citizen of BiH, while the mother is a citizen of the Republic of Croatia. The client is by father registered in citizens books in BiH. Until the age of 17, the client lived in the Republic of Croatia, moving to BiH by marriage. She lived in BiH until 2010, when due to bad marital relations and bad treatment, the client divorced and returned to the Republic of Croatia. S. M. has been a temporary resident in the Republic of Croatia since 2014. During her life in BiH, she became very ill, suffered kidney damage, and had one kidney removed.
Administrative Procedure
On 24/4/2019 S.M. was assisted by CRP Sisak to apply for extension of temporary residence, the same is extended for the period from 5/7/2019-23/5/2020. Temporary residence is granted on the basis of reunification with a family member (brother). The client lives on the help of a brother and son, and lives in a small shack, located on her brother’s land.
As she meets the conditions for permanent residence, on August 8, 2019, CRP assisted the client in applying for a permanent residence permit. On 29/11/2019, the Ministry of the Interior of the Republic of Croatia, the Directorate for Immigration, Citizenship and Administrative Affairs, the Service for Foreigners issued a decision rejecting the request for approval of permanent residence of S. M., with the explanation that the client is illiterate, and according to Art. 97, paragraph 1, item 4 of the Foreigners ‘Act, permanent residence will be granted to a third-country national who knows the Croatian language and the Latin alphabet.
Reasons for initiating an administrative dispute
CRP initiated an administrative dispute against this decision on January 16, 2020 and in the administrative lawsuit the emphasis was placed on the fact that this was a special and specific situation, and that was because S.M. was born in the Republic of Croatia, that she lived in BiH for only one period, where she married, but after the divorce she returned to the Republic of Croatia, more precisely she returned in 2010.and since then she has been regularly residing in the Republic of Croatia and had a regulated temporary residence. In addition, S.M. has had a properly regulated temporary residence for five years, and in 2019 extended the same stay, so that in 2019 she was in the sixth year of temporary residence as a family member of a Croatian citizen. In addition, mother of S.M. was a Croatian citizen.
- M. cannot actually be considered a “classic” foreigner in the Republic of Croatia because she was a citizen of the former Yugoslavia and her status problems followed due to the disintegration of the former (joint) state, and the claim that S.M. was a foreigner in the Republic of Croatia was directly related to the problem of the state succession.
Regarding the permanent residence permit, it was emphasized that S.M. met all the conditions for the same except the conditions of literacy and knowledge of the Croatian language and Latin script, and in connection with which conditions CRP referred in the administrative lawsuit to the fact that S.M. was born in the Republic of Croatia, that she has been related to it since birth and that after a short break in life in BiH she lives in the Republic of Croatia again and for many years and that she respects the legal order of the Republic of Croatia, customs and accepts Croatian culture., speaks Croatian well. In this regard, CRP emphasized a separate opinion of the Constitutional Court of the Republic of Croatia, in Decision No. U-III-1918/2000 of 17 December 2003, which protects the family because the family is under special state protection as a constitutional category because when permanent residence in the Republic of Croatia is looking for by a person who was born in the Republic of Croatia, lived from birth in the Republic of Croatia, and who has a properly regulated temporary residence, and became a foreigner due to the breakup of the former state, whose family and place of residence and security are in the Republic of Croatia, residence becomes a question of her human rights and their protection, and the citizenship and status relationship between the individual and the state acquires its full meaning in the sense in which citizenship is defined by the International Court of Justice: “According to the states practice, legal bond (connection) based on the fact of social affiliation, the original connection of existence, interests and feelings, together with the existence of reciprocal rights and obligations. ”
It is pointed out, therefore, that S.M. knows and speaks Croatian well, as well as she knows the Latin alphabet to a certain level -S.M. can write her signature, and in addition S.M. does not know any other alphabet, so in her case a higher degree of familiarity with the Latin alphabet would actually mean her literacy. Accordingly, with such actions, her constitutional rights, guaranteed by Art. 14 of the Constitution of the Republic of Croatia are violated, and in her case the obligation prescribed by Art. 63 para 1 of the Constitution of the Republic of Croatia, according to which the family is under special protection of the state, was not taken into account.
The hearing in the administrative dispute in question was held on 19 February 2020.
Judgment of the Administrative Court in Osijek
Administrative Court in Osijek on February 20, 2020. renders a judgment, number: UsI-115/2020, annulling the decision of the Ministry of the Interior of the Republic of Croatia, the Directorate for Immigration, Citizenship and Administrative Affairs, the Service for Foreigners dated 29 November 2019 and returns the case to the defendant (MUP RH) for retrial. The reasoning of the judgment states that the Court took into account the separate opinion of the Constitutional Court (U-III-1918/2000), according to which the opinion concluded that the competent administrative body had not summoned S.M. to declare whether it is possible to sign in one’s own handwriting in the Latin alphabet, nor in any other way has one tried to establish this fact, and that this has not established the “degree” of the illiteracy. Furthermore, the Administrative Court in Osijek interprets that given the specificity of the situation and the impossibility of S.M. to satisfy the condition of proving knowledge of the Latin alphabet and for objective reasons cannot submit a certificate to that effect, the administrative body had to determine whether and to what extent S.M. knows Croatian language and whether it is used and in relation to the said, the administrative body was to determine whether S.M. meets the condition provided by Art. 96.para.1 item 4 of the Foreigners Act.
In addition, the Administrative Court points out the exceptions provided for in Article 97, paragraph 2 of the Foreigners Act, regarding the categories of persons who are not obliged to pass the exam in knowledge of the Croatian language and Latin alphabet, and in which categories illiterate persons are not classified. Given the negligible number of such persons in practice, which category was not taken into account by the legislator, it follows that a meaningful interpretation of the said provision should exempt non-literate persons from such an obligation. Otherwise, it would mean their forced literacy, which is not the intention of the legislator, nor is it feasible in practice.
Further procedure
In May 2020, the Police Department in Brod-Posavina County, in the retrial after the judgment of the Administrative Court in Osijek, invited the client to submit information on means of subsistence, with whom he lives and whether she has any additional income for maintenance, and the statement-response to the same letter was sent on 22/5/2020.
On 2 July 2020, the client was invited by the Brod-Posavina Police Department to pay the administrative fee for permanent residence and to take over the decision for permanent residence. On 9/7/2020, the decision was taken over.
It is also important to emphasize that S.M. also had a debt for health insurance contributions, and as this debt creates obstacles for her, more precisely, it would be an obstacle for her to receive Croatian citizenship, as the client’s representative, on March 3, 2020, CRP Sisak submitted a request for writing off the incurred debt, pursuant to Art. 148 para 4 of the General Tax Law – uncollectibility of debt due to poor material and property condition of the debtor when the collection of the debt would jeopardize the maintenance of the debtor. The amendment to the same request went on October 15, 2019 and after that the Ministry of Finance, Tax Administration, Central Office on 21/4/2020 issued a decision granting the request of S.M. for writing off health insurance debt for the period 2014-2020 in the total amount of HRK 40,425.75. Thus, the write-off of the debt for health insurance also contributed to the approval of the permanent residence of the party, i.e. another condition for obtaining citizenship in the Republic of Croatia was fulfilled.
CRP thinks that the decision of the Administrative Court in Osijek is positive, primarily because the administrative dispute was resolved in a relatively short period of time, unlike other administrative courts, where the administrative dispute lasts on average one year. By regulating the permanent residence, S.M. will also acquire other rights in the Republic of Croatia, such as the right to health insurance as a sick person, social benefits (guaranteed minimum benefit), will have the opportunity to apply for Croatian citizenship after 8 years of continuous residence in the Republic of Croatia, etc.
We hope that this decision will have a positive impact on resolving such cases in the future and will serve as an example of positive practice.
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