Poland – Regional Administrative Court, N.D., 7 December 2016, IV SA/GI 663/16

The Court decided to set aside the appealed decision in respect of granting child benefit along with the initial decision of the President of the city of K. .  Applying the relevant regulations of the Law on state assistance in raising children (s.a.i.r.c.) and the Law on foreigners. The Court held that relying solely on literal interpretation in relation to the present facts would result in an inappropriate differentiation in the situation of foreigners granted Humanitarian Protection.

The Appellant is a recipient of this form of protection, on the basis of which she was granted a residence card for a period of 2 years. A literal interpretation of s.a.i.r.c. indicates the possibility of granting a child benefit on the condition of a foreigner being in receipt of a residence card with the “access to the labour market” note. Under the Law on foreigners, a residence card is issued with the abovementioned note if he was granted leave to remain on the territory of Poland due to humanitarian concerns along with a permission to work on the territory of Poland.

Taking the above regulations together, the Court considered that the right of a foreigner issued with a residence card to obtain child benefits depends on whether or not he has also been granted with a permission to work in Poland or the need for such permission has been waived. Both instances are a basis of the “access to the labour market” note being recorded on a residence card. According to the Law on the promotion of employment and labour market institutions, foreigners granted leave to remain due to humanitarian concerns are entitled to work on the territory of Poland and therefore meet the above criteria of receiving child benefits.

Applying purposive interpretation to the provisions of s.a.i.r.c. the Court concluded that their purpose was for the State to provide partial assistance to parents in the form of covering the expenses connected with parenting and said provisions do not exclude the children of foreigners in possession of a right to work in Poland. The appellant is in possession of a residence card however, despite her right to work in Poland and her documented past employment, the issuing body failed to record the appropriate note on her card. The differentiation of the legal position of foreigners in possession of a residence card along with a right to work, due to whether or not the issuing body recorded the appropriate note on their card, or due to the nationality of their children, would violate the Polish Constitution and the Convention on the Rights of the Child. 

Due to these considerations the Court concluded that the provisions of s.a.i.r.c. entitle a foreigner with leave to remain due to humanitarian considerations and a right to work to obtain child benefits, regardless of whether the appropriate body disclosed the latter right on their residence card.  While remitting the application to be considered anew, the Court stressed that the administrative body will be bound by the present analysis.