Poland - Regional Administrative Court in Warsaw, 1 September 2011, V SA/Wa 351/11

Country of Decision:
Country of Applicant:
Date of Decision:
01-09-2011
Citation:
V SA/Wa 351/11
Court Name:
Regional Administrative Court in Warsaw
National / Other Legislative Provisions:
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 19 § 1(1)
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 20 § 1(1)
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 40 § 1(2)
Poland - Ustawy o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (Act on granting protection to foreigners in the territory of the Republic of Poland) - Art 48 § 2
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 7
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 77
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 105
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 136
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 138
Poland - Ustawy Prawo o postępowaniu przed sądami administracyjnymi (Act on Proceedings before Administrative Courts) - Art 145
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Headnote: 

During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.

There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.

Facts: 

R.K., a citizen of the Russian Federation, applied for refugee status for herself and her minor children. She said that, in Chechnya, which is where she is from, life is impossible, and 2 years previously her husband had been taken away by unknown individuals and seriously beaten and was now ill as a consequence; she said he had also been persecuted. Furthermore, there is no work in Chechnya. In 2007, the foreignor’s husband went missing, and it was not until the proceedings were underway that she learned that he was in Norway. The Office for Foreigners initiated a Dublin procedure by applying to Norway to take charge of examining the application, but the Norwegian authorities refused to reunite her with her husband, proposing that they be reunited in Poland. The couple rejected this proposal, however. The first instance authority refused her protection. On receipt of the decision, she, together with her children, illegally travelled to Norway, from where she was then deported to Poland. The Office for Foreigners dismissed her appeal. As soon as she was housed in a secure unit, she once more applied for refugee status, saying in the application that she wanted to join her husband in Norway, adding that her husband's brother had been a fighter and had been killed in 2007. The Norwegian authorities once more refused to reunite R.K. with her husband. The Office for Foreigners dismissed the proceedings on the grounds that the application was inadmissible.

On learning that the foreignor's husband had been granted refugee status in Norway, the Office for Foreigners applied for a third time to the Norwegian authorities to take charge, but this application was refused also.

The Polish Council for Refugees decided to dismiss the proceedings as the application had been based on the same grounds. It stressed that she had clearly said that she did not see any possibility of living together with her family in Poland. Deportation would not affect family life, as the children would be deported together with the mother. The foreignor and her husband would have to bring any claims against the Norwegian authorities.

She appealed against the decision by the Polish Council for Refugees to the Regional Administrative Court, for the refusal to be overturned.

Decision & Reasoning: 

The Regional Administrative Court allowed the appeal.

The Court did not agree with the Council's view that the new application was based on the same grounds, as there was a new circumstance in that the foreignor's husband had now had refugee status recognised in Norway. According to the Court, the authority was obliged to clarify whether the basis for providing him with protection consisted of the same circumstances cited by the foreignor. To this end, it should have considered the need for the foreignor's husband to undergo examination and the need to obtain information from the Norwegian authorities about the testimony he provided during the course of the proceedings.

The Court stressed that if it were shown that this testimony referred to the same circumstances cited by the foreignor in her case, it would be difficult to defend the position that they should be accorded differing significance by the Norwegian and Polish authorities. Consequently, what formed the basis for protection being provided in Norway should also have formed the basis for the same protection being provided in Poland, as there are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.

On these grounds, the Court overturned the decision by the Council.

Outcome: 

The Court overturned the decision appealed against.

Observations/Comments: 

In the grounds for its judgment, the Court said clearly that the grounds cited by the foreignor for refugee status to be recognised should be assessed in the same way in all democratic countries that respect human rights. This also means that a member of the immediate family having refugee status recognised in one such country should be viewed as a very important fact in proceedings concerning the remaining members of the family.

Other sources cited: 

General reference to the Convention on the Rights of the Child.