By Lucia Jadudova
In the time of COVID-19 crisis, many states have decided to close down borders in order to prevent the spread of COVID-19. Taking Slovakia as an example, this article will show how such measures interfere with human rights of modern families.
Slovakia closed its borders on 13 March 2020. (https://www.mzv.sk/cestovanie/covid19/vstup-cudzincov-na-uzemie-sr-pocas-mimoriadnej-situacie ) Only Slovak citizens can cross the border and foreigners can enter Slovakia only under very limited circumstances. One of the main exceptions is in case the foreigner is married to a Slovak citizen or is a parent of a minor with Slovak citizenship. (https://www.mzv.sk/cestovanie/covid19/vstup-cudzincov-na-uzemie-sr-pocas-mimoriadnej-situacie) However, this exceptions do not reflect the reality of family life as we know it today.
Married homosexual couples of different nationalities can face issues on the border. In case one of the partners does not have a Slovak citizenship and tries to cross the Slovak border, Slovak public authorities will not allow the entry even if the couple is married. This is because Slovakia does not recognize homosexual marriages. In case the homosexual couple has a minor child with a Slovak citizenship, the partner could potentially enter Slovakia under the exception that he/she is the parent of the child. However, the person would have to present a birth certificate of the child; and here comes the problem. Under Slovak law, it is not possible to have two individuals of the same sex listed as parents on the birth certificate. In practice, only one of the parents is listed on the birth certificate, in case it is a woman, in the column mother, in case it is a man, in the column of father. The other partner will not be listed as a parent at all. In case the foreign partner is unfortunate and is not the one listed on the birth certificate, the entry will be denied. (https://dennikn.sk/1890701/ked-chcu-byt-spolu-maju-jedinu-moznost-uzavriet-registrovane-partnerstvo/?ref=in ). Hence, the only option is the request a special individual permit from the public authorities. It is unknown if the request is usually approved in case of homosexual couples and how long it takes to get it.
Secondly, also heterosexual couples of different nationalities may face difficulties. It is not uncommon that couples today do not get married. Issues can arise in case the couple does not have children yet, is expecting a child, the child does not have Slovak citizenship, or the child is an adult already. Furthermore, if the child is not biologically connected to the parent, the entry will not be possible either. We can think of a stepparent who is neither listed on the birth certificate nor has officially been recognised as a caregiver by the court, but nevertheless takes care of the child. It happens often that the stepparent is in a relationship with one of the biological parents of the minor child. If one of the partners is a foreigner in these cases, the entry into Slovakia will be denied. This is because the individual can neither show a marriage certificate, nor a Slovak birth certificate.
FREE MOVEMENT OF PERSONS WITHIN THE EU
Potentially, the partners in a homosexual marriage or in a heterosexual/homosexual relationship may enter Slovakia if they have a temporarily or permanent residence in Slovakia (https://www.mzv.sk/cestovanie/covid19/vstup-cudzincov-na-uzemie-sr-pocas-mimoriadnej-situacie ). However, in practice, if the foreigner is a citizen of a different Member State of the EU, there is a lower chance that he/she has a residence in Slovakia. The individuals mostly rely on the free movement of persons guaranteed by the TEU and TFEU. They simply did not see the need for having an official residence in Slovakia, even if they live there. But now, free movement of persons within the EU can be restricted on the basis of public health. The mere fact of being an EU citizen is not enough to cross the border now.
As a result, it can be observed, that the (almost) complete closure of borders with very little exceptions for foreigners interfere with the right to private and family life. It does not reflect the family life as we know it today. There is a significant number of heterosexual couples that do not get married or homosexual couples that got married in a different state. The current decree only recognises the traditional notion of family – a marriage of individuals of different sex, and mother and father of a minor child. Moreover, the decree builds on laws that are discriminatory based on sexual orientation. As was shown, in Slovakia, the birth certificate can only contain the names of a mother and a farther and not of two mothers or two fathers, or parent 1 and parent 2.
The current situation in unfortunate as it prevents families from reuniting. For now, many families have not seen each other in more than two months. In the meantime, a child of the couple could have been born. In the meantime, children have not seen one of their parents. It seems like only the opening of borders will reunite the forcefully divided families.
This blog is not advocating for completely abolishing closure of borders. It is an effective tool which slows down the spread of COVID-19. This article just points out the implications such measures have on modern forms of families. It is important to remind ourselves of the human rights that are being interfered with today. States shall put into place effective exceptions to the closure of borders which reflect the family life as we know it today.