Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 30 July 2013 no IV SA/Wa 2855/12 quashing the decision of the Refugee Board on finding the application inadmissible and discontinuing the procedure

Facts:

The applicant, a national of Russian Federation, applied for asylum in Poland for the fifth time. In 2011 the Refugee Board decided to refuse granting her and her children any form of protection and to expel them from the territory. The subsequent applications were considered inadmissible and the procedures were discontinued. In the last application the applicant continued to claim that she was persecuted and that it also concerned her husband, who however decided to legalise his residence within the regularisation action for migrants. The Refugee Board confirmed the decision of the Office for Foreigners on discontinuing the procedure on grounds of  inadmissibility. According to the authorities the present application was not based on any new circumstances. 

Decision & reasoning:

The Court quashed the decision of the Refugee Board, because it infringed the provision, according to which an asylum seeker could not be expelled from the territory if it would infringe his right to respect for family life, as defined in the ECHR or the rights of the child and as per the Convention on the Rights of the Child. The Refugee Board did not pay attention to the fact brought up in the appeal that the applicant’s husband is awaiting the decision on his application for a temporary residence permit provided for within the domestic regularisation procedure and after he was refused protection. If the Refugee Board did examine this circumstance, it would have known that the applicant’s husband was granted a temporary residence permit for two years. This fact should have resulted in granting a tolerated stay permit to the applicant and her children because otherwise her right to family life would be threatened.

The right to respect for family life as defined in ECHR is a fundamental right, protected in the European Union legal order by article 7 of the CFREU. In the jurisprudence of the CJEU and the ECtHR it is defined as the right to live with close family members and can amount to the obligation of action or inaction upon the Member States. The obligation of inaction means not expelling the person and the obligation of action means permitting entry and residence on their territory. So, even if the ECHR does not guarantee the right to enter and reside on the territory of a particular state for a third country national, expelling a person from the state, in which his close family members live, can amount to interference with the right to respect for family life protected by article 8 of the ECHR (C-540/03, CJEU judgement from 27.06.2006). Such interference has to be necessary in a democratic society, which according to ECtHR jurisprudence means it responds to the urgent social need and is proportional (57375/08 ECtHR judgement from 30.10.2012). The state has to prove that it has reached a balance between the public interest and the right of a third country national to respect for family life. Stating that the interference with the right is necessary requires a precise analysis whether it is justified by an urgent social need and is proportional. The ECtHR has developed detailed criteria for this assessment. In the case Uner v. the Netherlands the first criterion concerned the rights of the child and the possibility to leave the territory with the parent who was obliged to leave and the second criterion regarded the durability of social, cultural and family ties with the country of residence and the country of expulsion.

Such an interpretation of article 8 of the ECHR has also been reflected by the jurisprudence of the administrative courts in Poland. In the judgement no V SA/Wa 975/10 from 9.12.2010. the court stated that refusal of granting tolerated stay permit would result in enforcement of the return decision and will divide the family, where the father had the right to reside in Poland. Therefore issuing the decision which in fact would open the way to executing the return order would be an unjustifiable interference in the right to respect for family life. In the judgement of the Supreme Administrative Court no II OSK 1706/06 from 12.09.2007, it has been stated that family life within the meaning of article 8 of the ECHR amounts to the existence of actual close personal relations (Al-Nashif v. Bulgaria, ECHR judgement from 20.06.2002). In light of this definition, protection under article 8 of the ECHR covers not only family life in well-functioning families based on marriages or factual relationships, but also family life in families consisting only of a single parent and a child.

The Court also states that in article 15 of the Dublin II Regulation and currently article 17(2) of the Dublin III Regulation  the European legislator included discretionary clauses based on family reunification of all persons belonging to the family for humanitarian reasons.

Outcome:

Quashing the decision of the Refugee Board on discontinuing the procedure. 

Observations/comments:

Since May 2014 the tolerated stay permit (granted if return would infringe the right to respect for family life) is no longer granted within the asylum procedure, but can be granted within the return procedure. All the remarks concerning family life should therefore remain relevant.