Varuh ДЌlovekovih pravic

Government acknowledges the need to recognise the social rights of non-residents

In the opinion of the Human Rights Ombudsman of the Republic of Slovenia, the sentence of the second paragraph of Article 51 of the Aliens Act (ZTuj-2) that reads “In response to an application submitted in a timely manner for the issue and renewal of a temporary residence permit, the competent authority shall issue a certificate to a non-resident that shall be valid as a temporary residence permit until a final decision regarding an application is made.” must be understood in such a way that a certificate issued as such carries the same status and rights as an issued temporary residence permit, except to the extent that the law expressly provides otherwise. Otherwise, the legal regulation would not be in line with the principle of equality set out in Article 14 of the Constitution of the Republic of Slovenia. The Ministry of the Interior (MI) and the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MLFSAEO) accepted the aforementioned opinion.

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Back in 2021, the Human Rights Ombudsman of the Republic of Slovenia (hereinafter: the Ombudsman) addressed the problems of certain non-residents in the recognition of the right to financial assistance under the Aliens Act (ZTuj-2). He is of the opinion that the sentence of the second paragraph of Article 51 of the Aliens Act that reads “In response to an application submitted in a timely manner for the issue and renewal of a temporary residence permit, the competent authority shall issue a certificate to a non-resident that shall be valid as a temporary residence permit until a final decision regarding an application is made.” must be understood in such a way that a certificate issued as such carries the same status and rights as an issued temporary residence permit, except to the extent that the law expressly provides otherwise (i.e. the crossing of national borders, which is set out in the second paragraph of Article 60a). Otherwise, the Ombudsman believes that several questions would have to be answered in connection with the principle of equality under Article 14 of the Constitution of the Republic of Slovenia, as several provisions of the ZTuj-2 could be incompatible with the Constitution.

The Ombudsman also raised the question of the actual content of the rights to material assistance provided for in paragraph 2 of Article 51 and Article 75 of the ZTuj. In this matter, he noted the MLFSAEO’s position that the right to financial assistance under the aforementioned articles is not a right to social assistance under the Social Assistance Payments Act (ZSVarPre). At first glance, and this was the original guiding principle of the Ombudsman’s work, it seems that this should be the same right referred to above, except that for some beneficiaries the ZTuj establishes a waiver for the absence of permanent residence, which is otherwise a condition under the ZSVarPre. The MLFSAEO’s position is important in terms of the question of whether it might not actually be the same right. In the Ombudsman's opinion, the right under the ZTuj establishes the fiction of permanent residence, which places non-residents on an equal footing with permanent residents with regard to certain issues, including basic material security. This does not actually mean that the financial assistance under the ZTuj should be equated with the financial social assistance under the ZSVarPre, but that the financial assistance under the ZTuj should be understood as the right to be treated as a permanent resident in terms of social assistance, i.e. with regard to all rights under the ZSVarPre and not only with regard to the right to social assistance.

The MLFSAEO and MI did not accept the Ombudsman’s position. Through his efforts, the Ombudsman has continued to remedy problems identified at both the MLFSAEO and MI, even after the new government took office in 2022. He has been successful in those efforts. The MLFSAEO and MI have thus adopted the position that an individual holding the certificate referred to in the second paragraph of Article 51 of the Aliens Act (ZTuj-2) has the same rights as in the case of an issued residence permit (employment, emergency health care, financial assistance, etc.).

The MLFSAEO will prepare notification for social work centres regarding the change in the application of the provision of the second paragraph of Article 51 of the ZTuj-2, and will facilitate systemic decision-making and/or the recognition of the right to the payment of financial assistance in the amount and in the manner provided for in the act governing the payment of social assistance, including during the period from the issue of a certificate until a final decision is made regarding an application for the issue or extension of a temporary residence permit under the second paragraph of Article 51 of the ZTuj-2.

The MLFSAEO also accepted the Ombudsman’s position that the right to financial assistance in the amount and in the manner provided for in the act governing the payment of social assistance must be based on a person’s material situation or deprivation. This means that if a non-resident is in a material situation or deprived in such a way that they are entitled to receive social assistance under the second paragraph of Article 51 of the ZTuj-2 in accordance with the conditions laid down by the law, there is no reason they should not also obtain the right to a social security supplement and emergency social assistance. Financial assistance under the ZTuj-2 can thus be understood as a non-resident’s right to be treated as a permanent resident of the Republic of Slovenia, i.e. with regard to all rights under the ZSVarPre, including the right to a social security supplement and emergency social assistance. The MLFSAEO also find that the same applies to non-residents under Article 50 of ZTuj-2 (e.g. victims of trafficking in human beings, illegal employment and domestic violence).

The MLFSAEO will inform social work centres about the change in the application of the second paragraph of Article 51 of the ZTuj-2 and the provision of Article 50 of the ZTuj-2. The MLFSAEO also explained that the implementation of the change in the position of the MI and MLFSAEO requires the upgrading of the information system of social work centres. The MLFSAEO will carry out the aforementioned upgrade in the shortest time possible. 9.5-13/2022

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