Poland – Regional Administrative Court in Warsaw, 20 April 2017, IV SA/Wa 606/17
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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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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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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. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
An application to suspend the effects of a decision, contained in an appeal of a decision ordering return and a ban from re-entering the territory of Poland and other Schengen area states should be allowed, due to the validity of the Applicant remaining in Poland pending the conclusion of the administrative court proceedings. Under art. 61 § 3 of the Act on Proceedings before Administrative Courts, the Court may, upon the application of the Appellant, order that the challenged decision be suspended, in whole or in part, if the act or function to be performed would result in a risk of significant harm or other consequences which are difficult to reverse.
Facts:
In December 2016 the Head of the Office for Foreigners issued a decision requiring I.A., a citizen of […] to return to her country of origin, simultaneously forbidding I.A. to return to Poland and other Schengen area states.
On 12 January 2017 I.A. appealed the decision of the Head of the Office for Foreigners to the Regional Administrative Court in Warsaw, also applying for the suspension of the effects of the challenged decision. I.A. alleged that carrying out the decision requiring her return prior to the court’s ruling on her appeal would result in her facing irreversible consequences.
Decision & reasoning:
The Regional Administrative Court in Warsaw ordered the suspension of the effects of the challenged decision of the Head of the Office for Foreigners, due to the validity of the Foreigner remaining in Poland pending the conclusion of the administrative court proceedings.
The Court noted that appealing an administrative decision does not suspend its effect however, in line with art. 61 § 3 of the Act on Proceedings before Administrative Courts, following the Appellant’s application it is possible for the court to order the full or partial suspension of the effects of the challenged decision. The Court stressed that this procedure is of a special character and it may be ordered only in the circumstances specifically listed under art. 61 § 3, if carrying out the decision would result in a risk of significant harm or other consequences which are difficult to reverse.
Quoting a ruling of the Supreme Administrative Court, the Court noted that “a foreigner’s departure from Poland before the conclusion of the proceedings before the Court, would deprive him not only of the opportunity to take part in the legal proceedings, but would also mean that, should the appeal be granted, the legal protection awarded to the foreigner by the Court may prove illusory.” The suspension of the effect of the decision ordering departure from the territory of Poland was also justified by the need to follow due process, by allowing for the opportunity to take part in the judicial proceedings and the opportunity to take advantage of the right to a fair trial. The Court stressed that, in the event of the execution of the abovementioned decision, even if the appeal was to be granted thereafter, the Foreigner could no longer be afforded international protection in accordance with the Geneva Convention.
The Court also referred to art. 331 ss. 1 of the Act on Foreigners according to which the time of execution of a decision ordering return shall be extended until the day of the Regional Administrative Court giving an order in relation to the application for suspending the effect of the decision. In accordance with the above provision a Foreigner, who included an application to suspend the effect of a decision in the appeal of the decision in question, is automatically afforded temporary protection until the time of his application for suspension being considered.
Due to the abovementioned factual and legal considerations the Court held that giving effect to the challenged decision would result in the risk of causing the emergence of consequences which are difficult to reverse.
For these reasons the Court ruled in favour of the Foreigner’s application.
Outcome:
Application granted (suspension of the effects of the challenged decision).
Observations/comments:
This case summary was written by Brenda Efurhievwe, BPTC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Poland - Supreme Administrative Court,14 December 2005, II OZ 1330/05 |