European Court of Human Rights Rules Impossibility for Same-Sex Partner to Obtain Residence Permit Violates European Convention on Human Rights (February 23, 2016) [1]
On February 23, 2016, the European Court of Human Rights ruled [3] that the impossibility for a partner in a same-sex relationship to obtain a residency permit in Croatia violates the European Convention on Human Rights [4]. According to the press release [5], the case concerned Danka Pajić, a national from Bosnia and Herzegovina, who had been discriminated against because of her sexual orientation when applying for a residency permit in Croatia, where her partner lived. Pajić’s lawsuits in Croatia proved unsuccessful, as the Croatian courts ruled that “given the limited legal effects of a same-sex union, the possible existence of such a union did not represent a basis for family reunification.” The Court found that Pajić’s case concerned both Articles 14 and 8, noting that “in recent years a considerable number of member States of the Council of Europe had given legal recognition to same-sex couples” and therefore “it would be artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple could not enjoy ‘family life’.” The Court further found that Pajić had been discriminated against, because the Croatian Aliens Act tacitly “reserved the possibility of applying for a residence permit for family reunification to different-sex couples,” thus introducing “a difference in treatment based on the sexual orientation of the persons concerned.” Finally, the Court ruled that in cases of discrimination based on sexual orientation, states enjoyed only a small margin of appreciation, which required them to show the measure was necessary to achieve the aim of the legislation. Since Croatia had not been able to provide convincing arguments for the necessity of differential treatment, the Croatian Aliens Act was not compatible with the standards imposed by the Convention.