Slovakia: Family Reunification

Summary

In 2013, the discussion on immigration topics had been framed by two important influences. First was the Act on the Residence of Foreigners[1] and its legislative amendments[2], which provides legislative framework for family reunification policies. Second, and very important moment, was the preparation of new Integration Policy throughout whole year. The process has been initiated and governed by the Ministry of Labor, Social Affairs and Family and funded by the national project under European Integration Fund. The process has begun as reaction to the criticism of national and international (MIPEX[3]) institutions towards Slovak integration policy and as reaction to the need to replace the outdated Concept of Integration of Slovak Republic[4].

According to the statistics, Slovakia is the home to 71 649 immigrants, majority of them being the EU nationals (45 492). Third country nationals can be holders of tolerated (254), temporary (14 561) or permanent (11 342) residence permit[5], or being granted asylum or provided subsidiary protection. The legislation provides different approaches towards the right of family reunification of Slovak nationals, EU citizens and third country nationals. This leads to very unlucky situation of creating certain group of persons who share higher standard of family reunification than others. Surprisingly, Slovak citizens do not constitute the group with highest benefits, on the contrary, often they and their families face harsh reunification policies, including intruding interviews, wide discretion in the assessment whether the marriage is of convenience or not; and politics of securitization.[6]

To conclude, Slovak policy on family reunification does not seem to be the coherent one. In many aspects, the legislation provides easiest way to reunification for EU nationals, who exercised their right to free movement. Regarding this group of persons, the right to family reunification can apply to same-sex couples as well, if they prove their partnership/marriage to Slovak authorities.

On the very bottom are unmarried couples, where one partner is Slovak citizen and the other is third country national, who are entitled to tolerate residence only. Here the legislation is very strict and require the third-country partner to provide criminal record from home country in order to prove his/her impunity. The law specifically refers to the article 8 of the European Convention on Human Rights and requires proving impunity in order to determine if the one is the threat to national security. In fact, the law effectively shifts the burden of proof to the immigrant, going way beyond the original wording and intention of article 8 of the European Convention on Human Rights. In my opinion, this particular legislation is not in conformity with the Constitution and European Convention on Human Rights and would require necessary changes.

Another obstacle appears once the unmarried couple of Slovak citizen and third country national, where third-country national is granted tolerated residence, conclude the marriage, as the law does not allow the possibility for tolerated residence for them.[7] In this situation, the third country partner must apply for permanent residence and fulfill the entire requirements as prescribed by the law. And here comes the trick – if the partner does not fulfill all conditions and the permanent residence is not granted, there is no other chance to legalize the stay in Slovakia, not even in the case if the couple has child. Such families do not benefit from protection of Slovak republic, forcing the partner into illegality, or, leading to much serious consequences such as family separation or forced movement of Slovak citizens to other countries. Bearing in mind the article 8 of ECHR and standards as set by in the Zambrano[8] case, Slovak republic shall re-consider its applicable legislation to improve the protection of family life of its own citizens in mixed marriages.

Finally, the worst prospects are set for the asylum seekers and migrants from third countries with certain type of tolerated stay[9], whom the law excludes from the possibility to apply for permanent residence (as married partners of Slovak citizens), during his/her lawful stay in Slovakia.[10] Even if the marriage has been concluded in Slovakia during the asylum procedure, third country partner cannot file the application for permanent residence in Slovakia. The reason for such legislative provision has been to prevent abusive asylum applications and fight against irregular migration. In my opinion this measure does not and could not have desired consequences as it does not take account on the reality of life. In fact, if Slovak citizen marries the third country partner, who is also asylum seeker or on tolerated stay, this does not necessarily mean that it is marriage of convenience. Even if it would be the fraudulent marriage, the law provides for various possibilities how to prevent and combat such behavior. Hence, there is no reason for punishing the couples for their will to enter the wedlock without prior assessment of their legal statutes.

It is important to mention that Constitution as well as Slovak Family Law values the family as traditional and important pillar of society. However, as presented above, this attitude is not prevalent in Slovak Immigration Law. I do not believe that creating groups of families, which are privileged over other groups of families, solely based on certain legal status of family members, is in line with our Constitutional and international obligations. Further improvement of legislation and policies seems to be very necessary.

Expert discussion

In expert discussion, we had the contribution of lawyer Ms. Barbora Meššová on the topic of family and right to family life, divided into two articles. The first article asks and answers the question “Who is the family in Slovakia?” and examines whether and how this definition applies to families with foreign element. In second article, expert reviews each residence status, focuses on the entitlements to family reunification and provides important observations and comments. The expert considers the implementation of EU Family Reunification Directive and comments and provides feedback to the Report of the European Commission on the implementation of the Directive[11].

The other article, prepared by Mr. Peter Drál, researcher within the Martin Šimečka Foundation, concerns another important issue – education of children with migrant background in Slovak schools. The author provides insight into the education system of migrant children, pointing on its serious shortcomings. The importance to initiate expert discussion related to this issue appeared to be of significant importance in the end of 2013, when the process of adoption of Integration policy started to come into end. In the process, Ministry of Education refused to accept majority of measures drafted by experts from Martin Šimečka Foundation and Centre for Ethnology and Cultural Research, aimed to improve inclusive education of migrant children. Consequently, the Policy has been adopted with more than half of the measures cut off, very much to regret of NGO sector.

Public discussion

In public discussion we focused on the balance between individual and public interests when it comes to right to respect private or family life. The discussion has been hosted on the stage of charity initiative “Good country” (“Dobrá krajina”), established by Pontis Foundation, during the biggest Slovak music festival Bažant Pohoda. The overall aim of the project has been put the migration really into the centre of public attention, for which the placement of discussion to the program of well-known music festival, has been worthy.

The discussion has been honoured with the presence of Public Defender of Human Rights – Mrs. Jana Dubovcova, who discussed with mixed Slovak/Pakistani family. The family is currently undergoing the process of legal recognition of their family life in Slovakia, during which the partner has been identified as serious threat to national security. The discussants were touching upon the topics of the value and importance of basic human right to respect family life, individual rights in judicial procedure, right to fair trail and conflict of national security and family life. Again, the discussion pointed on serious shortcomings in Slovak immigration law as well as Civil Procedure Law, related to securitization tendencies.

Few months after the discussion, the Public Defender announced that she has filed the application to the Slovak Constitutional Court on the conformity of certain provisions of Act on Asylum and Act on the Residence of Foreigners with Slovak Constitution and international Conventions.[12] The related provisions of the law are the provisions that were discussed during the public discussion.

Migrant’s contributions

Family reunification theme proved to be the one providing the variability of themes and expressions for migrants and their contributions. Therefore we decided not to limit migrants as concerns the form of their contributions, which brought results in benefiting from distinctive scale of outcomes. Unlike the other contributions, these were provided by females exclusively, shifting the attention to the various aspects of female migration (young female, single mother, mother of three).

Migrant and poet from Tajikistan, Nargis Rachmonova, used her talents to tell the eternal story of migration – establishing the life in new country, yet longing for the old home and family. She transformed her feelings into two emotional, very feminine and subtle poems „Daughter“, and „My country“. Poems were written in Russian and English and translated to Slovak by Slovak poet Mr. Ján Štrasser.

Second migrant contribution takes very different form and perspective, as this is the intimate photo-story of daily life of immigrant family, consisting of single mother and two children. The photo story has playful and every-day-life character, but beneath unravels the aspects of female migration that are often overlooked.

The third contribution – interview with recognized refugee from Afghanistan, shows us the powerful story of personal strength, endurance and courage. Djevedan, mother of three and wife, had to experience a lot in her young life. As if being forced to flee from war-torn country with her family is not enough for one life, after settling in the country of their asylum, the family had to fight with other enemy – cancer of the husband. However, the story has the happy-ending and provides important message on the value of family unity that prevails in every culture and society and deserves to be respected.

The article has been written as part of the project Migration to the Centre supported by the by the Europe for Citizens Programme of the European Union and the International Visegrad Fund.

This article reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein.