The Constitutional Court decided on the constitutional complaint of a complainant, a Slovene citizen, against a judgment of the Administrative Court and decisions of the Ministry of the Interior and of the Ljubljana Administrative Unit, by which an application to extend the Slovene residence permit of her spouse, who is a foreign citizen, was rejected. The applicant alleged that, by the positions they adopted, the two administrative authorities and the Administrative Court interfered with the right to respect for one’s family life and the right of minor children to have contact with their father. The Constitutional Court reviewed the allegations of the applicant from the viewpoint of the right to family life determined by the third paragraph of Article 53 of the Constitution and the principle of a child’s best interests determined by the first paragraph of Article 56 of the Constitution.

The third paragraph of Article 53 of the Constitution determines, inter alia, that the state shall protect the family and create the necessary conditions for such protection. The positive aspect of this provision is the duty of the state to enable, by an appropriate legal regulation and by creating appropriate conditions, the establishment and protection of one’s family life in its territory. The negative aspect of the right to respect for one’s family life entails the protection of individuals from interferences by the state and its authorities. In the field of immigration, the right to family reunification and to maintain a family life entails, for the state, a negative obligation when it is required to not expel a foreigner, and a positive obligation when it must allow a foreigner entry into its territory and residence therein. The third paragraph of Article 53 of the Constitution mentions protection of the family, but does not specify the substance and scope of the right to respect for one’s family life. When interpreting this right, the Constitutional Court also took into account numerous international instruments.

By taking into account the case law of the European Court of Human Rights and the hitherto constitutional case law, the Constitutional Court adopted the position that rejecting the application of a foreigner – who is in a state wherein his close relatives live – for the issuance of a residence permit, or the expulsion of such foreigner, can entail an interference with his or her right to respect for one’s family life. This also applies in instances when an application for a residence permit submitted by a foreigner who has committed a criminal offence is rejected. When assessing the fair balance between ensuring the security of the host state and the right to respect for one’s family life, multiple criteria have to be taken into account. The Constitutional Court established that in the case at issue, the first-instance authority failed to take into account all the assessment criteria that follow from the constitutional case law and the case law of the European Court of Human Rights and that are relevant when assessing the proportionality of an interference with the right to respect for one’s family life. Above all, the assessment of the first-instance authority was deficient from the viewpoint of taking into consideration the best interests of the minor children. Therefore, the reasons stated by the first-instance authority were insufficient to justify thereby such an interference. In view of the above, the challenged first-instance decision violated the third paragraph of Article 53 and the first paragraph of Article 56 of the Constitution. Since the second-instance authority and the Administrative Court did not remedy the mentioned violation, they themselves also violated these two human rights.