Ruling of the Constitutional Court
The Constitutional Court cancelled certain provisions of the Act on the Residence of Foreign Nationals and the Act on Asylum. Following the proposal of a group of 18 senators, the ruling of the Constitutional Court of 27 November 2018, file no. Pl. ÚS 41/17, cancelled certain provisions of the Act on the Residence of Foreign Nationals and the Act on Asylum that were changed by Amendment Act No. 222/2017 Coll.
As for the Act on the Residence of Foreigners, the Constitutional Court has declared Section 169 (1) j) to be unconstitutional. According to this provision, it was possible to discontinue the administrative proceedings on residence permit, if the foreign national who is a family member of a Czech citizen requested the issuance of a temporary residence permit or a permanent residence permit despite not being authorised to stay on the territory of the Czech Republic, or despite having been ordered to leave the Czech Republic by a removal order. According to the legislature, the objective of this provision was to improve the efficiency of administrative proceedings, since it does not make sense to continue proceedings on residence permit if the foreign national without a residence permit has left the country. An additional objective according to the legislature was supposed to be the regulation of migration, since this should allow foreign nationals to obtain a short-term residence option.
However, the Constitutional Court has concluded that that as a result of this change, foreign nationals were essentially deprived of the possibility of a court review of whether or not they met the conditions for residence, and they retained only the right to a court review of the materialisation of reasons for discontinuing the proceedings. The Constitutional Court therefore found this provision of the Act on the Residence of Foreign Nationals to be contrary to Article 36 (1) and (2) and Article 10 (2) of the Charter of Fundamental Rights and Freedoms.
In addition, the Constitutional Court cancelled Section 172 (6) of the Act on the Residence of Foreign Nationals and Section 46a (9) and Section 37 (8) of the Act on Asylum. According to these provisions, if the detention of a foreign national or asylum seeker has been terminated, the proceedings on administrative action could be discontinued, since the end of restriction (deprivation) of liberty fulfils the objective set by the action. As a result of this provision, foreign nationals and asylum seekers were deprived of the option to require compensation from the state for illegal deprivation or restriction of liberty and the possibility to require the performance of a full review of the encroachment on fundamental rights and freedoms. Referring in particular to the extensive case law of the European Court of Human Rights, the Constitutional Court cancelled the challenged provisions, especially due to their conflict with Article 36 (1) of the Charter.
The article is part of dReport – January 2019, Tax news; Grants and investment Incentives.