Case summaries

A foreigner shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required. The relevant provision refers to two separate reasons that justify revoking subsidiary protection. The first is that the circumstances which led to the granting of such protection have ceased to exist. The second is that those circumstances have changed, although the change of circumstances must be of such a significant and non-temporary nature that the foreigner no longer faces a real risk of serious harm.

Subsidiary protection cannot establish a right that is comparable to, for instance, the right to obtain permission for temporary stay or indefinite leave to remain.

In the present case certain formal conditions for dismissing the application through an accelerated procedure as defined in Article 54 of International Protection Act (ZMZ) were not taken into account. The Ministry of the Internal (MI) did not take a stance as regards the circumstances that the Applicant claimed as the grounds for leaving his country of origin and applying for international protection.

It is the duty of the Applicant to show that he has been persecuted or is at serious risk of persecution. He should describe that persecution and present it to the fullest extent possible, showing how it relates to him in particular. Lack of acceptance by one’s family, social ostracism, and the negative perception of people of a different sexual orientation do not constitute grounds for according refugee status. However, given that the foreigner’s illness (AIDS) is at a very advanced stage and that he is undergoing treatment for epilepsy, it is necessary to consider whether deportation to his country of origin would violate his right to life.

Acts of a criminal nature cannot be equated with persecution within the meaning of grounds cited under the Convention. Public authorities in the country of origin, which the family of the foreignor did not contact, are supposed to provide protection against risks posed by individual citizens.

The Applicants are not members of a particular social group as defined by the Convention relating to the Status of Refugees, as neither their statements, nor the generally available information would indicate that Serbia considers their citizens originating from Kosovo as a particular group with specific characteristics.

Relying upon the jurisprudence of the ECtHR in relation to ECHR, Article 3 and the decision of the Constitutional Court Up-96/09, as referred to by the court of first instance, the Supreme Court ruled that minimal social and economic protection for an individual who is dependent on state aid does not represent a violation of dignity and therefore does not provide sufficient grounds for subsidiary protection. Poor socio-economic conditions, in which the majority of inhabitants of an individual country have found themselves, do not represent sufficient grounds for subsidiary protection. 

The appeal authority is obliged to assess the case on the basis of all the evidence and to provide proper grounds for its decision. It is not sufficient, therefore, to state in general terms that the second-instance authority shares the position of the head of the Polish Office for Foreigners and the arguments put forward by him. If the principle of two-instance administrative proceedings is to be observed, it is not enough to assert that two decisions by two authorities of different rank were issued in the given case.

The Convention relating to the Status of Refugees contains a finite list of grounds on which refugee status may be recognised and does not include victims of war, natural disasters, or famine, family situation, unemployment, lack of educational opportunities, or poverty.

The assessment of whether the foreignor's fear of persecution is justified must therefore be performed with reference to the individual case in question and in the light of the general social, legal, political, and economic situation of the country of origin of the foreignor applying for refugee status.

The notion of “well-founded fear” has not been precisely defined. However, it is commonly accepted that it must necessarily contain two elements: a subjective element (the party has a real and credible fear of persecution) and an objective element (this fear has a basis in reality).  A person applying for refugee status should present facts and possibly evidence confirming that they were persecuted in the past or that they fear persecution upon returning to their country of origin. Other reasons for a foreigner leaving their country of origin or fearing a return to their country of origin are immaterial as regards recognition of their refugee status.

B.G., a citizen of the Russian Federation, applied for refugee status, citing persecution experienced due to his brother being in prison. The authorities of both instances questioned his credibility, citing numerous inconsistencies in the various testimonies given. The foreignor then appealed to the Regional Administrative Court, which dismissed the appeal on the grounds that the proceedings had been conducted properly and referring to the fact that the foreignor was able to flee internally in his country of origin.

The authority conducting the proceedings provides, where necessary, translations into Polish of documents in a foreign language that are admissible as evidence in refugee status proceedings.

The option of internal flight means that if there is a part of the country of origin where there are no circumstances justifying the foreignor's fear of persecution or serious harm and it can reasonably be presumed that the foreignor will be able to move there without impediment, there is no well-founded fear of persecution or actual risk of serious harm in the country of origin. If the conditions in one region do not suit the foreignor, he can try to move to another part of the country.

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.