Poland - Regional Administrative Court in Warsaw, 1 September 2011, V SA/Wa 351/11
Keywords:
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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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.
There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.
Facts:
R.K., a citizen of the Russian Federation, applied for refugee status for herself and her minor children. She said that, in Chechnya, which is where she is from, life is impossible, and 2 years previously her husband had been taken away by unknown individuals and seriously beaten and was now ill as a consequence; she said he had also been persecuted. Furthermore, there is no work in Chechnya. In 2007, the foreignor’s husband went missing, and it was not until the proceedings were underway that she learned that he was in Norway. The Office for Foreigners initiated a Dublin procedure by applying to Norway to take charge of examining the application, but the Norwegian authorities refused to reunite her with her husband, proposing that they be reunited in Poland. The couple rejected this proposal, however. The first instance authority refused her protection. On receipt of the decision, she, together with her children, illegally travelled to Norway, from where she was then deported to Poland. The Office for Foreigners dismissed her appeal. As soon as she was housed in a secure unit, she once more applied for refugee status, saying in the application that she wanted to join her husband in Norway, adding that her husband's brother had been a fighter and had been killed in 2007. The Norwegian authorities once more refused to reunite R.K. with her husband. The Office for Foreigners dismissed the proceedings on the grounds that the application was inadmissible.
On learning that the foreignor's husband had been granted refugee status in Norway, the Office for Foreigners applied for a third time to the Norwegian authorities to take charge, but this application was refused also.
The Polish Council for Refugees decided to dismiss the proceedings as the application had been based on the same grounds. It stressed that she had clearly said that she did not see any possibility of living together with her family in Poland. Deportation would not affect family life, as the children would be deported together with the mother. The foreignor and her husband would have to bring any claims against the Norwegian authorities.
She appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court, for the refusal to be overturned.
Decision & reasoning:
The Regional Administrative Court allowed the appeal.
The Court did not agree with the Council's view that the new application was based on the same grounds, as there was a new circumstance in that the foreignor's husband had now had refugee status recognised in Norway. According to the Court, the authority was obliged to clarify whether the basis for providing him with protection consisted of the same circumstances cited by the foreignor. To this end, it should have considered the need for the foreignor's husband to undergo examination and the need to obtain information from the Norwegian authorities about the testimony he provided during the course of the proceedings.
The Court stressed that if it were shown that this testimony referred to the same circumstances cited by the foreignor in her case, it would be difficult to defend the position that they should be accorded differing significance by the Norwegian and Polish authorities. Consequently, what formed the basis for protection being provided in Norway should also have formed the basis for the same protection being provided in Poland, as there are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.
On these grounds, the Court overturned the decision by the Council.
Outcome:
The Court overturned the decision appealed against.
Observations/comments:
In the grounds for its judgment, the Court said clearly that the grounds cited by the foreignor for refugee status to be recognised should be assessed in the same way in all democratic countries that respect human rights. This also means that a member of the immediate family having refugee status recognised in one such country should be viewed as a very important fact in proceedings concerning the remaining members of the family.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
General reference to the Convention on the Rights of the Child.