Varuh ДЌlovekovih pravic

What About Foreigners Who are Not Foreigners Anymore After They Can No Longer Take Care of Themselves?

Individuals who have an irregular status of residence in the country, even though they reside there permanently, and who have found themselves in a situation where they urgently need the service of institutional protection, must be treated according to the provisions of Article 8 of the European Convention on the Protection of Human Rights in a comparable manner to persons who have a permanent residence in the country and thus access to social security services. The Ministry of Labour, Family, Social Affairs and Equal Opportunities actively responded by finding immediate solutions for concrete cases and systemic solutions for all future ones.

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In the second half of 2022, the Human Rights Ombudsman of the Republic of Slovenia (the Ombudsman) received complaints from several individuals who had in common that they had an irregular residence status in the country, despite the fact that they resided permanently in the country and are permanently associated with it, at the same time, they found themselves in a situation where they urgently needed the service of institutional care, which is only available to persons with permanent residence in the country. Without going into the questions of why individuals do not have a regulated status and to what extent this may be the result of possible past prejudice to rights, the Ombudsman presented his position to the authorities. He believes that when it comes to persons, even without a regulated formal status, who are associated to the Republic of Slovenia by the bond of permanent residence in the country and established ties protected by the provision of Article 8 of the European Convention on the Protection of Human Rights, they must be treated comparable/equal to persons who have a fixed permanent residence in relation to the access to social security services. According to the Ombudsman, the position of these persons is much more comparable to the position of persons with permanent residence than to the position of foreigners who come to the country without a regulated status and have absolutely no ties to the Republic of Slovenia, but are nevertheless completely equal to the latter in their legal position. And this despite all the commitments that the Republic of Slovenia accepted by acceding to the European Social Charter and the Universal Declaration of Human Rights.

By signing the European Social Charter, the Republic of Slovenia undertook to take the necessary measures, by concluding appropriate bilateral or multilateral agreements or by other means and in accordance with the conditions set out in these agreements, in order to ensure equal treatment of its own citizens and nationals of other contracting parties regarding the right to social security (Article 12) and that it will provide sufficient assistance to any person who is without sufficient means and is unable to secure such means either by their own efforts or from other sources, especially with benefits from the social security system and in case of illness, the care required according to their condition (Article 13).

Article 22 of the Universal Declaration of Human Rights stipulates that everyone, as a member of society, has the right to social security and, on the basis of national efforts and international cooperation and taking into account the organisation and resources of each country, is entitled to the exercise of economic, social, and cultural rights, which are indispensable for their dignity and the free development of their personality. Article 25 of the same declaration states that everyone has the right to a standard of living that enables them and their family to be healthy and well, including food, clothing, housing, medical care, and necessary social services, and the right to security in the event of unemployment, illness, disability, widowhood, age, or other inability to obtain means of subsistence due to circumstances beyond their control.

The understanding of the right to social security is expanding and will no doubt continue to expand in the future. The European Social Charter introduces the requirement to eliminate any indirect discrimination against foreigners (Commentary on the Constitution of the Republic of Slovenia, Šturm L. (ed.), Ljubljana, Faculty of Postgraduate Government and European Studies, 2002, p. 528), which is achieved by setting apparently neutral conditions, which are more difficult for foreigners to fulfil (e.g. the requirement for permanent residence). The understanding of the European Convention on the Protection of Human Rights (ECHR) is expanding in this direction as well. The European Court, for example, based its decision in the case Gaygusuz v. Austria on 16 September 1996 on the provision of Article 14 in conjunction with Article 1 of Protocol no. 1 of the ECHR, which otherwise refers to the protection of property and probably cannot be used for social protection services, however such services could be covered by the right to respect for private life from Article 8 of the ECHR.

The Ministry of Labour, Family, Social Affairs and Equal Opportunities responded by actively seeking accommodation options for individuals in specific cases. It established temporary mechanisms to resolve the issue, and it also committed itself to actively seeking and establishing a systemic solution that will provide essential social protection services to all persons who actually reside in the country and cannot be removed from it, in the same way as to persons with permanent residence. 9.6-34/2022