Poland – Regional Administrative Court in Warsaw, 20 April 2017, IV SA/Wa 606/17

Country of Decision:
Country of Applicant:
Date of Decision:
20-04-2017
Citation:
IV SA/Wa 606/17
Court Name:
The Regional Administrative Court in Warsaw
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention
National / Other Legislative Provisions:
Poland - 1. Art. 61 § 3 Law of 30 August 2002 on Proceedings before Administrative Courts (Dz.U. 2016 nr 0 poz 718; art 61 par 3)
Poland - 2. Art. 331 of the Law of 12 December 2013 on foreigners (Dz. U. z 2016 r. poz. 1990 z późn. zm.).
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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. 

Case Law Cited: 

Poland - Decision of the Supreme Administrative Court of 4 September 2015, sygn. akt II OZ 816/15 sygn. akt II OZ 907/15 – niepubl

Poland - Supreme Administrative Court,14 December 2005, II OZ 1330/05