Constitutional Court
11 January 2019
No KT3-N1/2019
Facts
The case was initiated by the Supreme Administrative Court of Lithuania, which asked to examine the constitutionality of the provisions of the Law on the Legal Status of Foreigners, according to which a temporary residence permit may be issued to a foreigner in the case of a family reunification, when his/her spouse or a person with whom a registered partnership agreement has been concluded, who holds Lithuanian citizenship or a residence permit in Lithuania, is living in Lithuania.
Complaint
The applicant considered that a foreigner who had entered into a marriage or a registered partnership agreement with a person of the same sex in another country could not be granted a temporary residence permit in Lithuania under the contested provision, and therefore the applicant had doubts as to the compatibility of this provision with the Constitution and the constitutional principle of the rule of law.
Court’s ruling
The Court recalled that the Constitution enshrines the inviolability of private life. The constitutional principles of equality and proportionality must be respected when the law imposes restrictions on the exercise of a person's right to private and family life, which are necessary in a democratic society and pursue constitutionally important objectives.
The ruling states that one of the forms of discrimination prohibited under the Constitution is the restriction of human rights based on gender identity and/or sexual orientation, which is also considered to be a violation of human dignity. In a democratic state governed by the rule of law, the attitudes or stereotypes of the majority of the members of society at a given time cannot constitute a constitutionally justifiable ground for discriminating against persons solely based on their gender identity and/or sexual orientation.
The Court recalled that the constitutional concept of family cannot be derived solely from the institution of marriage. The constitutional concept of family is gender-neutral and the Constitution protects and defends all families, based on the content of the relationship between the members of the family, whether of a permanent or long-term nature. The Court noted that a family may be created not only in Lithuania but also under the law of another State.
The Court noted that the legislator must establish a legal framework relating to the free movement of persons within the European Union and to migration which establishes the right to reunite a family formed by two persons of the same sex in another State by virtue of a lawful marriage or a registered partnership.
According to the Court's assessment, there is no reason to argue that, according to the contested provision of the Law, a temporary residence permit cannot be issued to a foreigner in case of a family reunification if his/her spouse or partner of the same sex, who is a citizen of Lithuania or a foreigner holding a residence permit, is living in Lithuania.