Poland - Ruling of the Supreme Administrative Court from 28 January 2015 no II OZ 41/15 on the non-suspension of executing the appealed decision taken by the Polish Refugee Board refusing refugee status or subsidiary protection
| Country of Decision: | Poland |
| Court name: | Supreme Adminstrative Court |
| Date of decision: | 28-01-2015 |
| Citation: | II OZ 41/15 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland within 30 days. If this obligation is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only the return decision can be forcibly executed. Therefore, the present decision does not pose a direct threat of irreparable consequences for the applicant.
Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that the absence of the applicant would limit his right to court.
Facts:
The applicant submitted an application for refugee status. The first instance authority (the Head of the Office for Foreigners) refused to grant him refugee status and subsidiary protection (without issuing a return order). After an appeal, the second instance authority (the Polish Refugee Board) upheld the decision.
The applicant appealed to the Regional Administrative Court in Warsaw. The appeal included a request to suspend execution of the appealed decision, since its execution would lead to irreparable consequences for the applicant. The Regional Administrative Court in Warsaw refused to suspend the execution of the decision of the Polish Refugee Board.
In the cassation complaint to the Supreme Administrative Court, the applicant advanced that the execution of the negative decision on asylum will result in the issuance of a return decision, which could be enforced before the court hears the present case. In such a case he would not be able to participate in the court proceedings concerning his asylum case.
Decision & reasoning:
Under the Law on proceedings before administrative courts, the court can suspend the execution of the appealed decision upon the request of the claimant, if the execution of the decision would cause a substantive damage or have irreversible effects. Such decisions must be enforceable in their nature, which means they should impose obligations or provide rights to the applicant. A decision which refuses protection is not one of them.
The Court highlighted that under the Law on Foreigners the decision taken by the Polish Refugee Board refusing the applicant protection signifies that he/she is obliged to leave the territory of Poland within 30 days. In case of non-compliance, a person cannot be deported. If the obligation to leave Poland is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only this decision can be forcibly executed.
The Court does not accept the argument advanced by the applicant that the execution of the decision refusing protection should be suspended because the decision on return, issued in the future, can be enforced before the present proceedings finish. Indeed, temporary protection cannot be anticipated and the applicant can request suspension of the return decision before a court once it is issued.
The Supreme Administrative Court held that granting temporary protection is not justified by the argument that standards of the fair procedure and right to court require personal participation of the applicant in the proceedings before a court. Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that absence of the applicant would limit his right to court.
Outcome:
The execution of the Polish Refugee Board’s decision was not suspended
Subsequent proceedings:
The applicant’s appeal on his refused application is not known.
Observations/comments:
Original ruling available at:
The argumentation of the ruling has been confirmed in other rulings of the Supreme Administrative Court (from 21 April 2015 no II OZ 309/15, from 7 May 2015 no II OZ 378/15, from 8 May 2015 no II OZ 402/15) and is followed by the Voivodeship Adminsitratvie Court in Warsaw (e.g. ruling from 29 May 2015 no IV SA/Wa 1227/15 available at: http://orzeczenia.nsa.gov.pl/doc/D55953D37A). Recent case law has also held the same: Supreme Administrative Court, No II OZ 1081/15, 19 January 2017 and Voivodeship Administrative Court, IV SA/Wa 2309/17, 10 January 2018.
It stands in direct contradiction with the ruling of the Supreme Administrative Court from 1 April 2015 no II OZ 218/15, also summarized for EDAL database and accessible here.