Poland - Ruling of the Supreme Administrative Court from 20 April 2016 OSK 3459/15 dismissing the cassation complaint regarding the case of a housing rental agreement for a refugee

Country of Decision:
Country of Applicant:
Date of Decision:
20-04-2016
Citation:
I OSK 3459/15
Court Name:
Supreme Administrative Court
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Headnote: 

The Supreme Administrative Count in the case concerning housing for a refugee ruled that the applicant, as a refugee, has found herself in a very specific situation, which was not taken into account by the authority. The applicant was not able to submit all the documents and information about the members of the family who stayed in Chechnya in order to obtain housing. It is beyond any doubt that the applicant and her children cannot live with their relatives, because other members of their family are in Chechnya, so the missing information could not have had any influence on the case whatsoever.

The Supreme Administrative Court found that it is the authority which is obliged to establish all the facts and find the objective truth. Although the local act imposes an obligation on the applicant to present concrete evidence, it cannot be stated, that justifiable problems with completing the evidence by the applicant exempted the authority from its own obligation to examine the case and enabled to automatically dismiss the application. Such an understanding would be inconsistent with article 6 of the 1951 Convention relating to the status of refugees.

Facts: 

A refugee with three children applied for housing in Warsaw. Before reaching Poland, she lived in Chechnya and Ukraine. She came to Poland in 2013, because of the persecutions caused by political activities of her spouse. The applicant stated that she did not know where her husband was because he hid from the Russian secret service (she did not even know whether he was alive). The local government of the Mokotow District of Warsaw, which examined the application, established that once she came to Poland the applicant lived in a refugee camp (no exact address) and then she rented a flat. For another couple of months she has lived in a protected facility managed by the Family Support Centre. An employee of this Centre testified that all the information regarding granting refugee status to the applicant were classified, as well as her former addresses.

In its decision not to accord the applicant housing the authority mentioned that it is obliged to take into account the situation of the applicant, including all accommodation and financial details. This involves examining the living conditions in former places of residence and the living conditions of a spouse and relatives. The local government stated that given the lack of information and documents confirming the living conditions of the applicant in former places of residence as well as the absence of information on the applicant’s financial situation and the place of stay of her spouse she does not qualify for the provision of housing as laid out in the local act. At the same time, the authority stated that providing accommodation to the applicant is possible in the future within another scheme, according to which persons granted refugee status or subsidiary protection can benefit from housing if the Family Support Centre applies for a rental agreement on their behalf. However, for this purpose the city allots only 5 flats per year.

The applicant submitted a complaint against the decision of the local authority. The Voivodeship Adminsitrative Court ruled in favour of the applicant. The cassation complaint was submitted by the authority. The Supreme Administrative Court dismissed the complaint.

Decision & Reasoning: 

The applicant, as a refugee, has found herself in a very specific situation, which was not taken into account by the authority. The judgement of the Voivodeship Administrative Court in Warsaw was justified and well-reasoned, because it found that the applicant was not able to submit all the documents and information about the members of the family who stayed in Chechnya. It is beyond any doubt that the applicant and her children cannot live with her relatives, because they are in Chechnya, so the missing information could not have had any influence on the case whatsoever.

The Supreme Administrative Court found that it is the authority which is obliged to establish all the facts and find the objective truth. For this purpose the authority has an obligation to undertake any essential steps in order to clarify all the circumstances. Although the local act imposes an obligation on the applicant to present concrete evidence, it cannot be stated, that justifiable problems with completing the evidence by the applicant exempted the authority from its own obligation to examine the case and enabled to automatically dismiss the application.

The main issue in the present case should be establishing whether the applicant is a single mother of three children, what her material situation is and whether she benefits from any assistance from her family or spouse. Documents are not the only evidence which can be used in this case. There is also a statement of the applicant and information provided by institutions – in the present case by the Family Support Centre, Office for Foreigners, Labour Office and Tax Office. There is also a possibility of hearing the applicant.

Under article 6 of the Convention relating to the status of refugees of 28 July 1951 any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have  to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling. This Convention, according to the Constitution of the Republic of Poland forms a part of the Polish legal order.

Outcome: 

The refusal of providing housing to the refugee was quashed.

Observations/Comments: 

The judgement is available at: http://orzeczenia.nsa.gov.pl/doc/9118FFF819.

The Legal Intervention Association was involved in the case (supported the applicant and joined the proceedings as a third party).

It is important to note that providing accommodation to the refugee in this case was argued on the basis of the general law of Warsaw relating to housing. Housing especially dedicated to international protection beneficiaries is also provided in Warsaw, but each year the city allots for this purpose only 5 flats.

Other sources cited: 

Poland - Local act of the Council of the capital city of Warsaw of 9 July 2009 no LVIII/1751/2009 on the rules of renting flats constituting a part of accommodation resources of the capital city of Warsaw (Journal of Laws of the Mazovian Voivode no 132 position 3937 with amendments)