Poland- The Supreme Administrative Court, 22 June 2017, II OSK 23366/16
| Country of Decision: | Poland |
| Country of applicant: | Russia (Chechnya) |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 22-06-2017 |
| Citation: | II OSK 23366/16 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.
The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children.
Facts:
A.B., a Chechen Russian national, made an application for refugee status, which included his wife and his minor children. In his application A.B. stated that while was not politically active and he had never taken part in any armed conflict, he was persecuted by masked individuals, who would take him away and beat him however, he had never been arrested or prosecuted. The Head of the Office for Foreigners refused to grant the Applicant refugee status, subsidiary protection or tolerated stay, due to a lack of evidence of persecution for any of the Convention reasons as well as a lack of credibility of his account.
Following the Foreigner’s challenge, the Polish Refugee Board confirmed the initial decision, concluding that the Foreigner’s reason for leaving his country of origin was his wish to improve his living conditions, as opposed to his need for international protection.
A.B. appealed this decision to the Regional Administrative Court in Warsaw, accusing both administrative bodies of making procedural errors regarding their failure to afford special treatment to a victim of violence and their failure to consider the request to re-interview A.B. and interview his children. The Regional Court fully confirmed the analysis of the Refugee Board and stressed that a wish to afford better living conditions to one’s children, does not justify providing them with international protection.
The Children’s Rights Ombudsman issued a cassation appeal regarding the ruling of the Regional Administrative Court, due to a violation of rules of administrative procedure, including through the failure to interview the Appellant’s children regarding their level of integration and the grounds for granting them tolerated stay.
Decision & reasoning:
The court granted the cessation appeal, due to the procedural errors regarding a refusal to interview the Appellant’s children (in the presence of a psychologist) regarding the level of their integration with the Polish society and their ties to their country of origin. The previous refusals to allow evidence were in violation of provisions according to which everything which may assist in the resolution of the case and which is not against the law ought to be allowed and a request for the introduction of evidence ought to be allowed if it relates to circumstances pertinent to the case. An administrative body is therefore obliged to consider all evidence and clarify the matter using all available evidence, and any assessment of the credibility of evidence cannot take place until such evidence is considered.
The evidentiary applications made in the appeal were significant as, following the refusal of refugee status it is necessary to decide whether or not to grant tolerated stay, i.e. if an expulsion would violate the right to family life or the rights of a child under the Convention on the rights of a child.
In the Court’s opinion, according to the two instance rule, the Polish Refugee Board while considering the challenge should have considered the case anew and made a new decision instead of merely controlling the decision of the I instance and analysing the arguments made in the challenge. The Court of I instance also should have allowed the appeal in the event of agreeing on the necessity to obtain additional evidence. The Court stressed that the administrative bodies are obliged to gather all evidentiary material exhaustively, both of their own accord and following the indication made by a party to the proceedings. The II instance administrative body also violated the rule of unconstrained assessment of evidence, by failing to consider the evidential applications made in the proceedings.
The Court supported the stance presented by the Ombudsman in his cassation appeal, concluding that the Court of I instance failed to gather evidence in an appropriate manner and failed to establish the facts of the matter correctly. The cassation appeal was allowed and the court set aside the previous court order and the challenged decision in so far as these related to refusing to grant a tolerated stay.
Outcome:
Cessation appeal granted.
Subsequent proceedings:
While reconsidering the application for tolerated stay the administrative body shall be obliged to consider the rulings of the Supreme Administrative Court.
Observations/comments:
This case summary was written by Brenda Efurhievwe, BPTC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UN Convention on the Rights of the Child - Art. 2, art. 3 ss 1, art. 4, art. 6 ss. 2, art. 27 ss. 3, art. 28, art. 29 ss. 1.