Polska: V SA/Wa 2332/11 - Wyrok WSA w Warszawie, 13 czerwca 2012, S.B. against Rady do Spraw Uchodźców
Keywords:
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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. |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
The third action in a row brought by a foreign woman for refugee status ended in the issue of a judgment dismissing the case as it was found that the basis for the application was the same as in the previous cases and the application was therefore inadmissible. The Court overturned the negative decision by the Polish Council for Refugees, as the new application by the foreign woman stated that she had divorced her then husband and had been in a relationship for a year with a Polish citizen, which might cause persecution on religious grounds were she to return to her country of origin.
Facts:
The foreign women, who is a Russian citizen and states her ethnicity to be Chechen, applied for the third time for refugee status to be accorded to her and to her two minor children. In her application for refugee status, she said she feared persecution in her country of origin as her husband had been persecuted. In the proceedings initiated by the third application, she said that she could not return to Chechnya as she had been in a relationship with a Polish citizen for around a year and that she had not been cohabiting with her husband, so the husband's family posed a threat and she was scared her children would be taken away from her.
The head of the Polish Office for Foreigners dismissed the proceedings on the grounds that the application was inadmissible, as the facts cited added nothing to the application for protection, and the divorce and the relationship with a Polish citizen are cultural and personal circumstances that have no link to the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland. The Polish Council for Refugees upheld the decision by the first instance authority. The foreign woman appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court in Warsaw.
Decision & reasoning:
The head of the Polish Office for Foreigners, in his grounds for the decision to dismiss the proceedings, argued that the application by the foreign woman had been the third application in a row for refugee status. The foreign woman's application cited the fact that she had left her country of origin due to her husband, who was being persecuted there. They were intruded upon in their home and persecuted, so she was concerned for the safety of her children and decided to emigrate to Poland. The head of the Polish Office for Foreigners said that the grounds cited by the foreign woman had been identical in the first of the applications made.
The head of the Polish Office for Foreigners argued that the foreign woman had said during the course of the proceedings that she could not return to Chechnya as she had been in a relationship for around a year with a Polish citizen and that she had not been cohabiting with her husband, so her husband's family posed a threat and she was scared that her children would be taken away from her.
The head of the Polish Office for Foreigners, assessing the circumstances cited by the foreign woman, found that they added nothing to the case, which had the same basis as before. According to the authority, the submission of a further application proves abuse of process on the part of the foreign women, and citing the alleged threat to her safety was insufficient for the outcome to be in her favour, as these circumstances are cultural and personal and furthermore have no connection with the Polish Act on the Provision of Protection to Foreigners in the Republic of Poland.
The Polish Council for Refugees upheld the decision by the first instance authority. The foreign woman appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court seeking the decisions by the first and second instances to be overturned.
The Court allowed the appeal and overturned the decision by the Polish Council for Refugees, concluding on the basis of an analysis of the appellant’s application which was understood to be a request for refugee status, in the context of all circumstances cited as grounds for said application, the foreign woman had cited new, additional circumstances pertaining to her individual situation.
These circumstances could not be found to be identical, in other words not bringing anything new (?) to the proceedings in this formal case concerning the dismissal of proceedings. They should be assessed on their merits in the context of rules concerning the provision of protection to foreigners and in relation to the principles and customs prevailing in the country of origin of the foreign woman and taking into account the references to her situation with regard to the current situation prevailing in this country. In particular, to clarify all of the circumstances of the case, the foreign woman should be heard.
The Court stressed that when the authority refers to the socio-political situation, it should expressly cite the reports or studies it uses, as it is not sufficient for the authority to hold these materials in the case files and take them into consideration.
The Court stressed that the authority has the power to adduce any evidence that might clarify the case. In these proceedings, the fact that the case had not been duly clarified might have affected the outcome, so the decision appealed against was overturned.
Outcome:
The court overturned the decision appealed against.
Observations/comments:
The judgment clearly indicates the authority's obligation to adduce any evidence that might clarify the case, which suggests a shift in the burden of proof to the authority in proceedings concerning refugees and strengthens the procedural position of the applicant. The Court stressed also that, in the context of the dismissal of proceedings, new elements or pieces of information might arise or become evident even after the applicant has left the country of origin and are or might be linked to a new situation in the country of origin, which might also relate to the concept of refugee sur place.