Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 7 September 2015 no IV SA/Wa 607/15 dismissing the complaint regarding the decision of the Refugee Board on finding the application inadmissible and discontinuing the procedure
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The Court ruled that when deciding whether the subsequent application is admissible, new facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant. When examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the manner in which they are presented.
With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court stated that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.
Facts:
The applicant, a national of the Russian Federation, applied for asylum in Poland in November 2012. She claimed she was persecuted because of her son. She was refused refugee status, subsidiary protection and a tolerated stay permit. She lodged a subsequent application in March 2014, claiming again that she was persecuted and that her health condition was getting worse. The authorities of both instances stated that her application was inadmissible and discontinued the asylum procedure. The applicant lodged a complaint to the Voivodeship Administrative Court in Warsaw.
Decision & reasoning:
The Court agreed with the authorities of both instances that the subsequent application was based on the same grounds. The Court decided to first clarify what is meant by this term.
Taking into account the guidelines contained in the Asylum Procedures Directive 2005/85/EU, a subsequent application for asylum shall be subject first to a preliminary examination as to whether new elements or findings relating to the examination of whether the applicant qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant. The application is subject to examination under the regular procedure if following the preliminary examination new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee. New facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant here. What has to be highlighted is that when examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the way in which they are presentation.
With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court ruled that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.
Outcome:
Confirming the decision of the Refugee Board on discontinuing the procedure.