Poland - Regional Administrative Court in Warsaw, 3 April 2013, IV SA/Wa 2486/12
Keywords:
| Keywords |
|
Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
|
Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
|
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.” |
|
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." |
Headnote:
This judgment overturned the decision of the Polish Refugee Board on examination of a manifestly unfounded application, on refusal to accord refugee status, provide subsidiary protection or grant a permit for tolerated stay, and on deportation from the Republic of Poland
In the proceedings, the foreigner stressed that he had left his country of origin as a child and currently has no family there, and that his entire family resides legally in Poland (they were granted a permit for tolerated stay in refugee proceedings). As the decision on refusal of protection is linked to the decision on deportation, refusal of protection would result in the Applicant being unable to see his family for many years. Therefore, in the Applicant’s opinion, the decision on deportation constituted interference in his family life, since it would result in him being separated from his family.
The Court found that the authority should properly examine and address the allegations made by the Applicant and thus consider the foreigner’s individual and family circumstances in the context of the possible application of Article 8 of the Convention, including the length of his stay in Poland, the possible obstacles to him living in his country of origin, and the likely effects on the Applicant’s family if the family was to be separated by the Applicant moving to another country.
Facts:
The foreigner submitted an application for refugee status. In the proceedings, the foreigner testified that he had left his country of origin six years ago (at the age of 14) together with his parents and brother. No family members remain in his country of origin. The parents and brother reside legally in Poland. In 2011, the mother was granted a permit for tolerated stay due to the need to protect the rights of her two minor sons, and the father was granted the same permit on grounds of the principle of family unity. Immediately after arriving in Poland, the foreigner attended a lower secondary school, which he successfully completed after passing his lower secondary school exams. He currently attends an upper secondary school. He lives with his parents and for three years he has worked for the municipal cleaning services. In Poland he was convicted of complicity in theft, for which he received a one-year custodial sentence suspended for three years. Both the first- and second-instance authorities refused to grant the foreigner protection. The foreigner appealed to the Regional Administrative Court in Warsaw.
Decision & reasoning:
It is the duty of the foreigner to show that he has been persecuted or is at serious risk of persecution. This is understandable if one considers that it is the foreigner who, having decided to leave his country due to persecution suffered or having a well-founded fear that he may suffer persecution in future, should describe that persecution and present it to the fullest extent possible, showing how it relates to him in particular. The circumstances of the persecution can then be comprehensively assessed. It is clear that persecution may take various forms and have various causes, but it nonetheless must be shown that it relates to the foreigner concerned. It is also clear that it is only possible for a foreigner to be accorded refugee status when the persecution suffered by him relates to his race, religion, political opinion, membership of a particular social group or sexual orientation, in other words, to the types of persecution laid down in Article 1A of the Geneva Convention. In the case of the Applicant in these proceedings, the authorities rightly showed that no such persecution had taken place.
However, the authorities failed to explain the circumstances raised by the foreigner in terms of Article 97 § 1(1a) of the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland, according to which a foreigner is granted a permit for tolerated stay within the Republic of Poland if his deportation would violate the right to respect for family life within the meaning of the European Convention on Human Rights or violate the rights of the child laid down in the Convention on the Rights of the Child to an extent that would significantly threaten his psychological or physical development.
In re-examining the case, the authority should properly examine and address the allegations made by the Applicant and thus consider the foreigner’s individual and family circumstances in the context of the possible application of Article 8 of the European Convention on Human Rights. To this end, the authority should examine the length of his stay in Poland, the possible obstacles to him living in his country of origin, and the likely effects on the Applicant’s family if the family was to be separated by the Applicant moving to another country.
Outcome:
The decision of the Polish Refugee Board was overturned.
Observations/comments:
In proceedings for the recognition of refugee status, in the event of a refusal to accord refugee status or to provide subsidiary protection, the conditions of granting a permit for tolerated stay are considered. Such a permit is granted, among others, to uphold the right to respect for family life and to protect the rights of the child. This is connected with the fact that if all forms of protection are refused in a decision issued in refugee proceedings, the person is deported from the country. Therefore, in order to ensure that the rights arising under international law are upheld, the authorities in refugee proceedings examine family relationships and the possible impact that deportation would have on the child.