Poland - Ruling of the Supreme Administrative Court from 6 July 2016 II OSK 1662/15 dismissing the cassation complaint against a decision on discontinuing the asylum procedure
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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
Arranging for medical or psychological examination is required, for example, when the third country national indicates that they were subject to violence, which left physical or mental signs which can be confirmed by medical or psychological examination. Not all invoked health problems will require an exam. Moreover, in subsequent proceedings this obligation is limited. The authority has no basis to arrange for such an examination when the event indicated in the subsequent application related to violence which was already subject to examination in the first asylum proceedings and was considered to not be credible.
Facts:
The third country national applied for refugee status and was refused any kind of protection by a final administrative decision issued in November 2013. In December 2013 the asylum seeker submitted a subsequent application to which he attached new evidence (a call for a hearing as a suspect from Chechnya). He also stated that he had emotional problems and had been to visit a psychologist. He also submitted medical evidence from the mental health clinic and a referral for a specialist examination. The authorities of both instances discontinued the procedure since they found no new basis on which to assess the subsequent application. The Voivodeship Administrative Court in Warsaw dismissed the complaint against the decisions so the applicant submitted a cassation complaint to the Supreme Administrative Court.
Decision & reasoning:
The Court first refers to Article 68 of the law on granting protection to foreigners in the territory of Poland. Article 68 prescribes that the third country national who informs the authority that they were subject to violence, who is disabled or whose psychophysical condition allows for a presumption that they were subject to violence, benefits from a medical or psychologist examination in order to confirm this circumstance. The content of this provision means that the Head of Office for Foreigners arranges for a medical or psychological examination when the third country national indicates that they were subject to violence, which left physical or mental signs and which can be confirmed by a medical or psychological examination. Not all invoked health problems will require an exam to be undertaken, however.
Moreover, in subsequent proceedings this obligation is limited. The Head of the Office for Foreigners has no basis to arrange for such an examination in a situation when the event indicated in the subsequent application related to violence that was already subject to examination in the first asylum proceedings and was considered not to be credible. In the present case the applicant stated that he was beaten by Russian police. As it was already established in the first asylum proceedings, this circumstance, if true, was an incident without any effect on the applicant. Other statements made in a subsequent application, such as separation with his wife and children, remain immaterial to the obligation of connecting the trauma with the violence that the applicant was possibly subject to.
Outcome:
Cassation complaint was dismissed.
Subsequent proceedings:
The judgement is available at: http://orzeczenia.nsa.gov.pl/doc/97DB418157
Observations/comments:
The judgement concerns the legal provisions before the recast Asylum Procedures Directive was transposed into the national legal order.