Constitutional Court facilitates legalization of residence of family members of Czech nationals

It held true pursuant to the 2017 amendment to the Act on Residence of Foreign Nationals that if a family member of a Czech national who resided in the Czech Republic without a valid residence permit or if the so-called order to exit was given to him/her, filed an application for temporary or permanent residence, the Ministry of the Interior had to terminate the proceedings concerning the foreigner’s application without further procedure.

This in fact meant that such foreigner had to leave the Czech Republic, return and only thereafter file the application repeatedly. For the sake of completeness, it must be mentioned that such rather strict regulation only applied to family members of Czech nationals and not to family members of other EU nationals residing in the Czech Republic, and the Czech regulation thus de facto unreasonably placed its own nationals at disadvantage.

The Constitutional Court, however, recently declared that such mechanism was unconstitutional since it factually restricted the right to family coexistence of Czech nationals with their family members. The amendment to the Act was also intended to restrict the right to access the court, since the resolution on the termination could only be reviewed from the aspect whether the foreigner actually resided illegally in the territory, and other facts could not be taken into consideration. The Constitutional Court thus repealed the provision incorporated by the amendment.

It thus again holds true that if a Czech national’s family member files an application for a temporary residence permit although he/she resides in the Czech Republic without a residence permit it will not be possible to stop the proceedings concerning his/her application for such reason. The foreigner is entitled to reside in the Czech Republic throughout the proceedings and thus he/she will be able to de facto legalize his/her residence. There are, however, exceptions where resolutions have already taken legal force on administrative expulsion, on punishment in the form of expulsion, on termination of temporary residence or on termination of permanent residence of a family member of an EU national; in such event, it will still be necessary to leave the Czech Republic and subsequently return.