Poland - Regional Administrative Court in Warsaw, 30 November 2012, II OSK 2292/10
Keywords:
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
Headnote:
This is a judgment on the cassation appeal against the judgment of the Regional Administrative Court in Warsaw (case ref.: V SA/Wa 934/10) of 5 August 2010 dismissing the appeal against the decision of the Local Government Appeals Court in Warsaw on refusal to grant assistance within the framework of an integration programme for foreigners.
The rights of refugees and of beneficiaries of subsidiary protection in regard to integration assistance should not be withdrawn or denied for the sole reason that they have been convicted of a crime – regardless of whether they committed the crime prior to receiving protection or prior to submitting an application for integration assistance. Such action would not be in the public interest, for it is assumed, in regard to the decision to provide protection to the foreigner, that the state should take steps to facilitate the integration of foreigners.
Facts:
A beneficiary of subsidiary protection and his dependants submitted an application for assistancewithin the framework of an integration programme. The public authority refused to grant the assistance since a Criminal Records Bureau check showed that the main Applicant had been convicted of an intentional offence, which by law constitutes a basis for refusal of integration assistance. The offence in question was the illegal crossing of a national border with the use of violence, threats or deception or in collaboration with others. The offence took place prior to the granting of subsidiary protection and prior to the submission of an application for integration assistance, and in effect it deprived the whole family of this assistance. The Regional Administrative Court in Warsaw dismissed the appeal, after which a cassation appeal against the judgment was lodged with the Supreme Administrative Court.
Decision & reasoning:
The denial or withdrawal of integration assistance due to a conviction for an intentional offence should relate to the period when integration assistance was provided, and not to the period before protection was provided to the foreigner.
This purposive interpretation is supported by EU law relating to the support given by the EU to the actions of Member States in regard to bearing the consequences of receiving refugees. The integration of refugees into the society of the country in which they are established is one of the objectives of the Geneva Convention of 1951. Member States should support actions aimed at promoting the social, economic and cultural integration of refugees, since economic and social cohesion are among the fundamental objectives of the Community enshrined in the treaties. It is in the interests of both Member States and refugees that the latter should be given the opportunity to provide for themselves by working in accordance with regulations. The purpose of the integration programme is to help foreigners find work in accordance with their qualifications, undertake necessary training, and function appropriately in contacts with their local community.
Outcome:
The judgments of the Regional Administrative Court and of the authorities of both instances were overturned.
Subsequent proceedings:
Provision of assistance under the integration programme.
Observations/comments:
The judgment is groundbreaking because for the first time the regulations on provision of assistance within the framework of an integration programme have been interpreted in the foreigner’s favour. The judgment thus makes it possible to avoid the “repeat punishment” of refugees who have come to Poland without the necessary travel documents. Previously, such punishment was in many cases suffered not only by the Applicant but also by his family members included in the application. The judgment is available at: http://interwencjaprawna.pl/docs/wyrok2292.pdf
As a consequence of this judgment, people who have previously been refused assistance because they were convicted of an offence can likewise now set aside the decisions of public authorities and receive assistance within the framework of an integration programme (see judgment IV SA/Wa 608/13 of 1 August 2013, available at: http://interwencjaprawna.pl/wp-content/uploads/Wyr.-IV-SA-Wa-608-13.pdf)
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Poland - Ustawy z dnia 12 marca 2004 r. o pomocy społecznej (Polish Act of 12 March 2004 on Social Care) - Art 95(4)(2) |
Other sources:
Council Decision No. 2004/904/EC of 2 December 2004 establishing the European Refugee Fund for the period 2005 to 2010, recitals 5 and 6 of the preamble.