Poland - Regional Administrative Court in Warsaw, 16 May 2013, IV SA/Wa 2684/12

Facts:

N.I. submitted an application for refugee status in Poland. The Head of the Polish Office for Foreigners refused to recognise refugee status and instead granted a permit for tolerated stay, which, in connection with the change in regulations, was then transformed by law into subsidiary protection. During her stay in Poland, the foreign woman gave birth to a third child and submitted an application for refugee status on its behalf. The authority refused to recognise refugee status for the newborn child and instead granted a permit for tolerated stay. N.I. then left Poland and returned to her country of origin, where she gave birth to a fourth child and where she lived for three years. Having this information at its disposal, the authority launched ex officio proceedings to revoke the subsidiary protection granted to the foreign woman and her children. She justified her trip to her country of origin on the grounds of her father’s ill-health and subsequent death. However, the authority came to the conclusion that the circumstances which had led to the granting of protection in Poland had ceased to exist. The change of circumstances was significant and non-temporary, such that there was no longer a real risk of serious harm. The foreign woman appealed against the decision of the Polish Office for Foreigners, but the second-instance authority dismissed the appeal. In the second-instance authority’s opinion, the fear which had led to the granting of subsidiary protection had ceased to exist. Moreover, that the foreigner had stayed in her country of origin for three years and had not experienced any problems proves that the change of circumstances was non-temporary.

The foreign woman lodged an appeal with the Regional Administrative Court against the decision of the Polish Refugee Board.

Decision & reasoning:

The Court concurred with the Polish Refugee Board and dismissed the appeal. The Court indicated that a foreigner shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required. The relevant provision refers to two separate reasons that justify revoking subsidiary protection. The first is that the circumstances which led to the granting of such protection have ceased to exist. The second is that those circumstances have changed, although the change of circumstances must be of such a significant and non-temporary nature that the foreigner no longer faces a real risk of serious harm.

The Court took into account the fact that the foreign woman had independently travelled to her country of origin, where she had given birth to a fourth child, and after three years of living there had acquired passports for herself and her children on the basis of which she had then left her country of origin without any problem and travelled to Poland.

The Court noted that if her right to life, freedom and personal security had once again been put at risk in her country of origin, or if she had been at risk or had suffered torture or inhuman or degrading treatment or punishment, then there would be a basis for claiming that the circumstances which initially led to the granting of legal protection still existed. However, the Court found that the authority had shown to a sufficient degree that the Appellant’s undisturbed stay in her country of origin demonstrates that the situation in that part of the world has become stabilised to the extent that there is no longer any risk to the life or health of its inhabitants.

Although the situation is still unstable, one can no longer speak of an armed conflict that would put the entire population in danger or of the use of mass terror or the persecution of civilians. On this basis, the Court reached the conclusion that there had been a change in the circumstances which had led to the granting of subsidiary protection.

The Court also addressed the argument raised by the foreign woman that she was entitled to the same protection as her husband, who had been granted subsidiary protection in a separate decision. She argued that the status of a family member covered by an application follows from the status accorded to the Applicant, which means that she should continue to enjoy subsidiary protection, together with her husband, on the grounds of family unity. The Court noted, however, that she had through her own behaviour decided not to avail herself of the protection provided by the Polish state. The institution of subsidiary protection cannot be implemented contrary to the purpose for which it was established. It cannot establish a right that is comparable to, for instance, the right to obtain permission for temporary stay or indefinite leave to remain. She could, however, cite the principle of family unity in other legalisation procedures.

Outcome:

The Court dismissed the appeal.

Observations/comments:

The decision contains an important section related to interpreting the reasons for the cessation of subsidiary protection.

The content of the judgment is available from the Central Database of Administrative Court Judgments:

http://orzeczenia.nsa.gov.pl/doc/8EE0FA348D