Poland - Regional Administrative Court in Warsaw, 26 February 2013, IV SA/Wa 2459/12

Facts:

The Applicant submitted an application for refugee status, citing persecution. The first-instance authority (the Head of the Polish Office for Foreigners) refused to accord refugee status, provide subsidiary protection or grant a permit for tolerated stay, and decided that the Applicant should be deported from the Republic of Poland. After an appeal, the second-instance authority (the Polish Refugee Board) upheld the decision. The Applicant appealed to the Regional Administrative Court in Warsaw. The appeal included a request to suspend execution of the appealed decision, since its execution would lead to irreparable consequences for the Applicant and he would not be able to participate in the court proceedings concerning his case.

Decision & reasoning:

The request should have been granted as in the Court’s view it is right that the Applicant should remain in Poland until the administrative proceedings are completed.

By law, the lodging of an appeal to an administrative court against the decision of an administrative authority does not suspend the execution of an act or action. However, the Court may, at the Applicant’s request, issue a decision to suspend execution of the appealed act or action in part or in full.

The institution of suspending execution may only be applied in exceptional circumstances where it is found that execution of an act or action carries a risk of significant harm or irreversible consequences.

Only those acts or actions that are suitable for execution and require execution may be the subject of an interim measure. The notion of execution of an administrative act should be understood to mean causing by voluntary means, or by means of enforcement, a state of affairs that is consistent with the decision contained in the act. The subject of an administrative act is therefore any behaviour of the entity responsible for executing the act (the addressee) consisting in, among others, the performance or non-performance of a given action.

The appealed decision is the kind of decision that is suitable for execution, since the decision on deportation is an integral part of the decision on refusal to accord refugee status or to provide subsidiary protection.

As emphasised by the Supreme Administrative Court in its decision of 14 December 2005 (case ref.: II OZ 1330/05), if the foreigner were to leave Poland before his case was heard before a court, not only would he be unable to participate in the court proceedings in person but also, in the event his appeal was granted, the judicial protection provided to the foreigner might prove illusory. Therefore, the only means of protection for the foreigner is to obtain a suspension of execution of the appealed decision. The use of an interim measure in the form of suspending execution of the decision ordering the foreigner to leave the Republic of Poland pending completion of the administrative proceedings regarding the decision on refugee status is connected with standards of fair procedure and the right to an effective remedy.

It must be concluded, therefore, that the enforced departure of the foreigner from Poland prior to the case being heard before a court would deny him the possibility to participate in the court proceedings in person and thus to exercise his right to an effective remedy in full.

Outcome:

Execution of the decision of the Polish Refugee Board was suspended.

Observations/comments:

In the Polish legal system, an appeal to an administrative court does not – as a rule – suspend execution of the appealed decision, which means that a foreigner may be deported after a relevant decision is issued by an administrative authority. NGOs in Poland have on several occasions pointed to cases of deportation involving citizens of Congo, Afghanistan and Belarus who were denied any possibility of appeal because the deportation occurred just a few days after they had received the administrative authority’s decision. In its judgment of 18 June 2013 in case AWB 13/11314, a court in the Hague found that the deportation of a foreigner prior to the case being heard before a court violates Article 47 of the Charter of Fundamental Rights of the European Union (the case concerned the Dublin II Regulation). The above judgment shows that while administrative courts in Poland generally apply interim measures, often these decisions are taken after the foreigner has already been deported, since the mere submission of a request to suspend execution of a decision does not have suspensive effect.