The Supreme Court: when deciding on issue of temporary residence permit, the Office of Citizenship and Migration Affairs must assess circumstances on the merits
6 May, 2015
On 6 May, the Department of Administrative Cases of the Supreme Court upheld judgement of the Administrative regional court, by which individual’s application was satisfied and the Ministry of Justice was imposed an obligation to ensure that the Office of Citizenship and Migration Affairs would issue temporary residence permit for five years to an individual in 30 days from the date of entering of a judgement into force.
Section 23 (3) (2) of the Immigration Law stipulates that in cases not provided for in this Law a temporary residence permit shall be issued for a time period of up to five year by the Head of the Office of Citizenship and Migration Affairs, if it complies with the norms of international law, or is related to reasons of a humanitarian nature.
In the case heard, the person requested temporary residence permit, grounding her request with reasons of humanitarian nature. However, the institution recognised that there are no reasons of humanitarian nature, which would serve as a ground to issue temporary residence permit in accordance with Section 23 (3) (2) of the Immigration Law.
The Supreme Court pointed out in its judgement – although grounds for request of temporary residence permit, namely, humanitarian considerations and norms of international law, are mutually segregated, however, ascertaining content and mutual segregation thereof is complicated enough for an individual, thus the Office of Citizenship and Migration Affairs, which is competent authority in both cases, must assess circumstances on the merits in accordance with principle of observation of human rights, rather than to stick to legal ground indicated by the individual. It means that the institution must assess both legal grounds – humanitarian considerations and norms of international law – and, if possible, must give instructions and recommendations to achieve adoption of legal and just decision.
In its judgement, the Supreme Court particularly stressed that the institution did not assess possible violation of human rights of the person, who requested residence permit, which might be caused in case of expulsion of the applicant. Namely, the institution was informed of the applicant’s age, which was 60 years, and that she lived with her brother, who resides in Latvia. Although the applicant hasn’t submitted documents of approval, she informed the institution that she had lived in Latvia since 1994, and this fact might cause doubts of the institution that she lost connection with other countries and that she would experience difficulties to adapt in another country due to her age. It, in turn, was the reason to acquire additional information. In opinion of the Supreme Court, non-acquisition of information in case reviewed, by requesting additional evidence or listening to the applicant, caused defective assessment of her situation, which significantly differs from the facts acknowledged in court proceedings.
Information prepared by Baiba Kataja, the Press secretary of the Supreme Court
Telephone: 67020396; e-mail: firstname.lastname@example.org