Poland - Ruling of the Supreme Administrative Court from 2 June 2016 II OSK 2380/14 quashing the ruling of the Voivodeship Administrative Court and dismissing the complaint against a return decision
| Country of Decision: | Poland |
| Court name: | Supreme Administrative Court |
| Date of decision: | 02-06-2016 |
| Citation: | II OSK 2380/14 |
Keywords:
| Keywords |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Internal borders of the EU Schengen zone can be crossed without submitting persons to any border control. However it does not mean that a third country national is not subject to any requirements while crossing the border. Interpretation of the Schengen Border Code, the Convention applying the Schengen Agreement and the Law on Foreigners leads to a conclusion that the third country national should hold a passport and a residence card while crossing the border. Holding these documents beyond doubt means possessing them, ie carrying them.
Facts:
A third country national travelled from Poland to Germany and while crossing the border he did not carry his residence card, which he had been issued and which was valid during the incident. On this basis he was given a return decision by the Lubuski Voivode. Then the third country national submitted a request to the Head of the Office for Foreigners to invalidate this decision as flagrantly violating the law. The Head of the Office for Foreigners refused to do it. The authority claimed that the third country national should have had his passport and a residence card with him while crossing the border, otherwise he crosses the border illegally, which is a basis to issue a return decision. The third country national asked for this decision to be reconsidered but the Head of the Office maintained it.
He then submitted a complaint to the Voivodeship Administrative Court and stated that he had a right to cross the internal border of the EU because he had been issued a residence card and the relevant legal provisions do not directly oblige him to possess it while crossing the border. The Voivodeship Administrative Court quashed both decisions of the Head of the Office for Foreigners, in favour of the third country national. The authority submitted a cassation complaint to the Supreme Administrative Court claiming that their refusal to invalidate the decision on return was justifiable under the Schengen Border Code. The Supreme Administrative Court quashed the ruling of the Voivodeship Administrative Court and dismissed the complaint.
Decision & reasoning:
The Supreme Administrative Court decided to grant the cassation complaint submitted by the Head of the Office for Foreigners. The Supreme Administrative Court found material law allegations admissible and justifiable.
The subject of the control of the Head of the Office for Foreigners was the decision of the Lubuski Voivode, which ordered a return of a third country national. Under the Law on Foreigners, a third country national should be returned if they crossed or attempted to cross the border breaching the law. This provision does not state in which direction the border should be crossed, so it should be applicable to all crossings of the Polish border (whether travelling to Poland and out of Poland).
There was also a breach of law during this border crossing. Internal borders of the EU Schengen zone can be crossed without submitting persons to any border control. However it does not mean that a third country national is not subject to any requirements while crossing the border. Interpretation of the article 5(1a) and article 21 of the Convention applying the Schengen Agreement leads to a conclusion that the third country national should hold a passport and a residence card while crossing the border. Holding these documents beyond doubt means possessing them, ie carrying them. It means that the statement of the Voivodeship Administrative Court that the rights related to holding a residence card are not dependent on carrying it are unjustifiable.
It is worth noting that the Law on Foreigners names crossing the border illegally as breaching the law and not “without relevant entitlements”. The justification of the judgement of the lower instance seems to elaborate on the latter term.
Outcome:
The return decision is still in force.
Observations/comments:
The Helsinki Foundation for Human Rights was involved in this case and the HFHR lawyer Jacek Bialas represented the applicant in courts.
The Court dismissed the statements made in the response to the cassation complaint proving that article 21 of the Schengen Border Code distinguishes two notions: “to hold” the documents and “to carry” them and that article 21 of the Convention applying the Schengen agreement referrers to “holding” the documents, not necessarily “carrying” them. The Law on Foreigners only defines that the residence card entitles the individual to cross the border without the need to obtain a visa. There is no provision imposing an obligation to carry it.
Cited National Legislation:
| Cited National Legislation |
| Poland - Law of 12 December 2013 on Foreigners - Article 88(1) point 6 242 |
Other sources:
Article 2 point 5 of the Schengen Border Code.
Article 5(1a) and Article 21 of the Convention applying the Schengen agreement.