In the procedure for renewing the residence permit for study purposes, the foreign student demonstrated that she has sufficient resources for subsistence including the contract that provided her with free accommodation for the duration of the artistic residency in Slovenia. The applicant thus demonstrated that she has ensured free accommodation during her studies in Slovenia. The Ombudsman approached the administrative unit with an inquiry on whether the competent authority takes into account evidence that the applicant has ensured free accommodation while residing in Slovenia when determining sufficient resources for subsistence, although these resources are not determined in a monetary amount. The administrative unit clarified that it does not because the monetary amount must be determined pursuant to the Foreigners Act (ZTuj-2).

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The Ombudsman is of the opinion that the provision related to demonstrating sufficient resources for subsistence in ZTuj-2 is much stricter for the applicant than what is envisaged in Directive 2016/801, meaning that the Directive has not been adequately implemented into Slovenian legislation in this part. The Directive provides that a country can determine a specific reference amount that shall mean “sufficient resources”, however, in specific cases of assessing sufficient resources, this assessment must be done on an individual examination of the case. Contrary to the above-mentioned, ZTuj-2 determines an absolute amount (equivalent to minimum income in Slovenia) that every applicant must demonstrate in order to obtain or renew the residence permit. The above-mentioned amount, therefore, is not a reference amount but rather an obligatory amount. In practice, this appears to lead to the fact that the competent authority requires the applicant to demonstrate that they have at their disposal (at least) the specific amount determined by law with evidence of resources whose value has been determined in an absolute monetary amount. It cannot take into account other means which are, logically, also intended for subsistence (for example, free accommodation). The Directive requires that the sufficiency of resources for subsistence should be assessed according to the circumstances of each individual case, stating only by way of example the sources by which an individual may demonstrate this circumstance. The Directive also does not provide that only evidence demonstrating resources in absolute monetary amounts shall be taken into account when providing evidence for these resources. Contrary to the Directive, the Slovenian provision comprehensively lists the specific resources that can be taken into account in demonstrating sufficient resources, while the competent authority is not able to take into account potential other resources that are at the applicant’s disposal, which the legislator did not envisage in advance. The approach used by the legislator in regulating the demonstration of sufficient resources can also be a factor contributing to the inefficient or excessively long procedures in the field of decisions on residence permits. Namely, it appears that the administrative units must also repeatedly request the applicants to supplement their applications, even though, in accordance with the Directive, they could decide after assessing all relevant circumstances of the case. Every request to supplement the application extends the administrative procedure for several weeks.

A foreign student who applied for an extension of the temporary residence permit for study purposes contacted the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman). It took the administrative unit five months to render a decision on the application, extending the permit. It was evident from the applicant’s statements and the administrative unit’s clarifications that the applicant had to supplement the application multiple times in order to demonstrate sufficient resources for subsistence.

The applicant submitted a contract as evidence that was concluded with a public institution in the field of culture and art, providing her, among other things, with free accommodation for the duration of her artistic residency in Slovenia. This means that the applicant thus demonstrated that she has ensured free accommodation during her studies in Slovenia. Therefore, the Ombudsman approached the administrative unit with an inquiry on whether the competent authority takes into account evidence that the applicant has ensured free accommodation while residing in Slovenia when determining sufficient resources for subsistence, although these resources are not determined in a monetary amount. The Ljubljana Administrative Unit clarified that Article 33, point 3 of the Foreigners Act (ZTuj-2) provides that a foreigner who wants to reside in Slovenia must have sufficient resources for subsistence, i.e., their subsistence must be ensured in a different manner, monthly at least in the amount equivalent to the basic minimum income amount in the Republic of Slovenia. Therefore, the administrative unit is of the opinion that the monetary amount must be defined.

However, the Ombudsman notes that recital no. 24 of the Directive 2016/801[1] provides the following: “If third-country nationals can prove that they are in receipt of resources throughout the period of their stay in the Member State concerned that derive from a grant, a fellowship or a scholarship, a valid work contract, a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs, Member States should take such resources into account in assessing the availability of sufficient resources. Member States should be able to lay down an indicative reference amount which they regard as constituting ‘sufficient resources’ that might vary for each one of the respective categories of third-country nationals.” In its Article 7(1)(e), the same Directive provides that, as regards the admission of a third-country national under the Directive, the applicant shall (inter alia) provide the evidence requested by the Member State concerned that during the planned stay, the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State's social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an examination of each individual case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs. Article 7(3) of the Directive provides that the Member States may indicate a reference amount which they regard as constituting ‘sufficient resources’ as referred to under point (e) of paragraph (1), however, the assessment of the sufficient resources shall be based on an individual examination of the case.

It appears that the provision related to demonstrating sufficient resources for subsistence in Ztuj-2 that is in force is much stricter for the applicant than what is envisaged in Directive 2016/801, meaning that the Directive has not been adequately implemented into the Slovenian legislation in this part. Namely, Article 33(3) of ZTuj-2 provides as follows: “For the issue of the first temporary residence permit, the renewal of the residence permit, the issue of a subsequent residence permit or for the issue of a permanent residence permit, the foreign person can demonstrate that the sufficient resources for subsistence requirement have been met with evidence of resources that are obtained through work, rights derived from work or insurance, excluding the reimbursement of expenses related to work, through income from property, income from capital and other sources or from those who are obliged to provide for him via scholarship or assets available in the bank account opened at a bank or savings bank in the Republic of Slovenia or abroad.” Furthermore, Article 44(1) of ZTuj-2, with regards to the residence permit for study purposes merely provides as follows: “As evidence that the sufficient resources for subsistence requirement from Article 33(3) of the above-mentioned Act has been met, the resources that an educational institution grants to the foreign person are also taken into account. Meeting the requirement of sufficient resources for subsistence, monthly at least in the amount equivalent to the minimum income in the Republic of Slovenia, can also easily be demonstrated with a written statement from the student's parents or legal representatives stating that they will provide for them for the duration of their studies or education if their parents are obliged to provide for them pursuant to the legislation of the country of their citizenship.” Therefore, in the decision procedure for issuing the temporary residence permit for study purposes, it is exceptionally possible to demonstrate resources for subsistence through additional evidence, however, the list of possible evidence related to resources is still exhaustive (according to the numerus clausus principle).

The current regime, therefore, does not comply with the Directive in at least two respects:

The Directive provides that a country can determine a specific reference amount that shall mean “sufficient resources”, however, in specific cases of assessing sufficient resources, this assessment must be done on an individual examination of the case. Contrary to the above-mentioned, ZTuj-2 determines an absolute amount (equivalent to minimum income in Slovenia) that every applicant must demonstrate in order to obtain or renew the residence permit. The above-mentioned amount, therefore, is not a reference amount but rather an obligatory amount. In practice, this appears to lead to the fact that the competent authority requires the applicant to demonstrate that they have at their disposal (at least) the specific amount determined by law with evidence of resources whose value has been determined in an absolute monetary amount. It cannot take into account other means which are, logically, also intended for subsistence (for example, free accommodation).

The Directive requires that the sufficiency of resources for subsistence should be assessed according to the circumstances of each individual case, stating only by way of example the sources by which an individual may demonstrate this circumstance (this unequivocally follows from the use of the phrase “inter alia” in Article 7(1)(e) of the Directive). The Directive also does not provide that only evidence demonstrating resources in absolute monetary amounts shall be taken into account when providing evidence for these resources. Contrary to the Directive, the Slovenian regime exhaustively lists which specific resources can be taken into account when demonstrating sufficient resources. It is true that the list of possible evidence in the case of a residence permit for study purposes is somewhat larger because it includes so-called grants and a statement of subsistence. However, it is still limited, while the competent authority is not able to take into account other possible resources that the applicants may have at their disposal, which the legislator did not envisage in advance.

The Ombudsman can understand that the Slovenian legislator opted for the above-mentioned approach with the aim of preventing abuse, although he is not aware that, in practice, there is a significant number of abuses and irregularities that occur in the field of student residence permits. However, pursuing this objective cannot justify the inconsistent transposition of EU law into national law. As follows from the Directive, the intent of the sufficient resources for subsistence requirement in order to issue a residence permit for study purposes is to prevent the foreign student from becoming a burden on the social welfare system of a Member State. However, in accordance with Slovenian legislation, this possibility has already been excluded if holders of permanent residence permits are not entitled to social welfare benefits and assistance from the welfare state (see Article 3 of the Social Assistance Payments Act (ZSVarPre)). Therefore, it should be taken into account that the possibility of abuse is extremely small.

The Ombudsman also adds that the approach used by the legislator in regulating the demonstration of sufficient resources can also be a factor contributing to the inefficient or excessively long procedures in the field of decisions on residence permits. Namely, it appears that the administrative units must also repeatedly request the applicants to supplement their applications, even though, in accordance with the Directive, they could decide after assessing all relevant circumstances of the case. Every request to supplement the application extends the administrative procedure for several weeks.[2]

According to the Ombudsman, the regime is also controversial under constitutional law. Namely, in principle, in administrative proceedings, it is true that the relevant factual circumstance for the decision can, as a rule, be proven in any permissible way and by any admissible sources of evidence. The principle of unfettered evaluation of evidence represents the starting point for determining legally relevant facts, as well as guidance for evaluating which further evidence should the authority obtain or adduce. Therefore, in principle, the unfettered evaluation of evidence is applicable in administrative proceedings (Article 10 of the General Administrative Procedure Act (ZUP)), which means, inter alia, that parties can submit any means of evidence to prove legally relevant facts in the case. However, the competent authority or an official authorized to conduct proceedings and decide in an administrative case according to his/her conviction independently assesses which facts are considered proven, on the basis of a conscientious and careful assessment of each piece of evidence individually and all the evidence together and on the basis of the success of the entire proceedings. Therefore, as a rule, anything that is appropriate to ascertain the state of the case and that corresponds to the individual case can be used as evidence, in particular documents, witnesses, statements of parties, experts and inspections (Article 164 of the ZUP).

In proving sufficient resources, ZTuj-2 establishes an exemption from this general procedural rule and provides a formal rule of evidence according to which sufficient resources for subsistence can be proven solely in the prescribed manner, i.e., on grounds of exhaustively listed resources and evidence. Detailed formal rules on which evidence is legally relevant lead to the authority being bound by the rules of evidence on grounds of a prior abstract evaluation of the evidence by the legislator. Such a rule of evidence constitutes an exception to the unfettered evaluation of evidence. If adducing evidence is restricted in such a manner that, in order to establish a relevant fact, it is only admissible to use a specific means of evidence, in accordance with constitutional review, this constitutes an impairment of the right to equal protection of rights under Article 22 of the Constitution of the Republic of Slovenia.[3] According to the Ombudsman, there does not appear to be a legitimate reason for such an impairment of the constitutional right, especially in the light of the fact that such a restriction is not permitted by EU law.

In principle, however, administrative authorities must also directly apply the provisions of the Directive that are insufficiently or incorrectly transposed into the legal order of a Member State, provided they are sufficiently clear, precise, and unconditional.[4] Nevertheless, the Ombudsman approached the Ministry of the Interior with a proposal to initiate the procedure for amending the ZTuj-2 after examining the Ombudsman's criticism and to ensure the appropriate transposition of Directive (EU) 2016/801. The Ministry did not take the Ombudsman’s proposal into account. 7.2-3/2023

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[1] Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast).

[2] As clarified by the administrative unit in this specific case, it forwarded a request to supplement the application to the applicant on 8 November 2022. The application was then amended accordingly on 21 December 2023 (i.e., within a good five weeks from the request), while the decision was finally brought on 2 February 2023.

[3] See the Decision of the Constitutional Court of the Republic of Slovenia no. Up-3663/07-15 of 10 September 2009.

[4] The Directive is binding for the Member State as to the aim that is to be achieved but leaves it to the State to choose the most appropriate manner of its implementation. After the deadline for implementation, the provisions of the Directive can have a direct effect, but only in relation to the individual against the state (the so-called vertical direct effect). Individual provisions have a direct effect if they are sufficiently clear, precise and unconditional (see Judgment of the Court of Justice of the EU in Case 41-74 (Van Duyn) of 4 December 1974).