Poland - Regional Administrative Court in Warsaw,16 October 2014, no. IV SA/Wa 1039/13

Facts:

The applicant’s claim for refugee status was predicted on her male relatives’ involvement in the war. She claimed she faced persecution if returned to the Russian Federation notwithstanding that she had not personally participated in any actions herself during the war.

The Head of the Office for Foreigners refused granting the applicant any form of protection given that her family ties to the persecuted members of the Chechen armed group were insufficient to justify the applicant’s fear of persecution. In the appeal the applicant stated that one of her relatives was sentenced in the country of origin for activities against the federal government. She also mentioned that her family members reside in Poland: her daughter had been granted subsidiary protection, while her son and her niece applied for refugee status in Poland and their cases are in the midst of being examined. She asked for four witnesses to be heard who were granted protection in another EU Member State and an examination of their asylum case files to be undertaken, as they were her relatives and could confirm the relevant facts of her case. The Polish Refugee Board dismissed the application to add to the evidence already gathered, as it would not bring any new facts to the case.

The second instance authority also did not comment on the right to family life of the applicant.

The decision was appealed to the Regional Administrative Court in Warsaw.

Decision & reasoning:

The Court firstly found that the fear of persecution is a subjective feeling that cannot be directly recognised. Therefore, if the applicant claims that they do fear persecution, they themselves bear the burden of proof.

Proving the fear of persecution is possible, first of all, by submitting evidence in order to prove a particular circumstance, which according to the Court is a basic procedural guarantee. Additionally, the Court found that the appeal authority is entitled to carry out complementary evidence proceedings. Indeed, the principles of administrative proceedings (article 7 and 77 of the Code of Administrative Proceedings) require that the case is handled in a comprehensive manner. Therefore, the Court advanced that assessing submitted evidence is a necessity, bearing in mind the specificity of the asylum proceedings.

The Court found that in the present case the applicant undertook actions in order to protect her interests and pointed out the relevant circumstances to contest the decision of the first instance authority. According to the Court, the appeal authority should have clarified all of the first instance authority’s doubts regarding the facts of the case..

The Court stated that the appeal authority should verify whether the applicant has family ties with the family of Chechen armed group activists, whether this could be a reason for persecution in the country of origin and also whether ties with her son can result in persecution of the applicant herself.

Crucially, the Court further advanced that members of the family of a refugee can be conceived as a particular social group as defined in Article 1A of the Geneva Convention and that there can be a risk of persecution based on these family ties that justifies granting refugee status. Such findings can be made upon hearing the witnesses or examining the asylum case files of the relatives who were granted international protection in another EU Member State. If these findings are not substantiated this subsequently creates doubts about the individual situation of the applicant. Only after these findings will the authority be obliged to examine the legal reasons for granting refugee status or another form of protection to the applicant.

Moreover, the Court highlighted that the justification of a decision should be a determining tool to convince a party to the proceedings about the appropriateness of the decision. The reasoning of the decision has to be put in such a manner that enables a party to understand and, as far as possible, accept the validity of factual and legal circumstances on which the authority based the decision.

The Regional Administrative Court held that the appeal authority did not clarify in the decision why the family situation of the applicant had not been taken into account, although it was in possession of the information about the asylum proceedings of other family members. In light of Article 8 para 1 of the European Convention on Human Rights (ECHR) everyone has the right to respect for private and family life. As a rule, relations between parent and a child is a fundamental relation protected by this provision. Ties between grown up children and their parents are generally not considered to constitute family life. However, in the case X. v. UK the Commission stated that there is family life between mother and her grown up son if there is dependence going beyond ordinary emotional relations. Therefore, the authority should examine whether such relations are applicable in the present case, taking into account the age of the applicant and her health condition.  

Outcome:

Overturned the decision of the Polish Refugee Board

Subsequent proceedings:

Not known

Observations/comments:

The original judgement available at: http://orzeczenia.nsa.gov.pl/doc/C231AB50FB

The summary in Polish available at: http://interwencjaprawna.pl/nasze-sukcesy/sukcesy-poradnicze/wyrok-wsa-w-warszawie-sygn-akt-iv-sawa-103914-uchylenie-decyzji-rady-do-spraw-uchodzcow/

The judgement is of importance because it concerns the right to good administration. It presents evidentiary assessment requirements, which extend to examining the files of an asylum application of other persons, including those granted protection by the relevant authorities of another Member State. It is also important to note that these persons are not nuclear family members, but relatives.