Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 7 October 2016 I SA/Wa 1197/16 quashing the decision of the President of Warsaw who refused granting child care benefit “500+” to a person with refugee status

The Court admitted that taking into account the literal wording of the provision in question, the note “access to labour market” stated on the residence card is a necessary requirement to obtain t child care benefits by a Third Country National. At the same time under article 244 section 1 of the Law on foreigners, the note “access to labour market” is placed on the residence card in case of granting a residence permit to a foreigner who has a work permit in Poland or is excluded from the obligation to obtain a work permit. Looking at these two provisions it seems that the right to be granted the child care benefit in question depends on the entitlement to work in Poland. Such an entitlement can be based on the work permit or on the provisions excluding certain categories from an obligation to obtain a work permit. Foreigners granted refugee status or subsidiary protection are entitled to work in Poland on the basis of the article 87 section 1 (1) and (2) of the Law on promotion of employment and labour market institutions. It means that refugees fulfil the conditions to be granted the benefit.

According to the case files, the applicant is a refugee, who has a right to permanent stay in Poland and has a residence card. It is not written there that she has access to labour market, although under legal provisions she does have access to labour market. In this situation the literal interpretation of the law is not enough. It is necessary to analyse the provision of the Law on the state’s assistance in raising children in the context of the whole legal system and in the context of the purpose of the legislation in question.

Placing the note “access to labour market” on the residence card was aimed at facilitating the proceedings for obtaining the child care benefit before the authority, which generally does not have a competence to examine the entitlement of the foreigner to work in Poland. The legislator did not foresee the situation in which the correlation of article 244 of the Law on foreigners mentioned above with the recast Qualification Directive will result in defining a group of persons, who are entitled to work in Poland but whose entitlement is not disclosed on their residence cards.

The Court therefore notes, that in view of the whole legal system, it is not justifiable to differentiate the situation of these third country nationals especially since they have no influence on the content of the documents issued to them.

The purpose of the child care benefit envisaged in the Law of 11 February 2016 is to provide assistance to parents and guardians in raising children by covering some expenses related to their needs. No legal provision directly excludes from this framework the children of third country nationals (including refugees) who have the right to permanent stay and entitlement to work in Poland. The Ombudsman for Children is right that excluding refugees from persons entitled to the child care benefit would lead to unfair differentiation of the legal situation of third country nationals (dividing them to those who were issued a residence card with the note “access to labour market” and those issued a residence card without this note) and of the children (because of their origin and nationality). Such an interpretation would be contrary to the provisions of the Constitution - article 2 (social justice), article 32 (non-discrimination), article 71 section 1 (support for families) and article 72 section 1 (rights of the child) and would be also contrary to the article 2 section 1 and article 26 section 1 of the Convention of the Rights of the Child and article 23 of the 1951 Geneva Convention on the status of refugees.