Poland - Ruling of the Supreme Administrative Court from 28 January 2015 no II OZ 41/15 on the non-suspension of executing the appealed decision taken by the Polish Refugee Board refusing refugee status or subsidiary protection

Country of Decision:
Country of Applicant:
Date of Decision:
28-01-2015
Citation:
II OZ 41/15
Court Name:
Supreme Adminstrative Court
National / Other Legislative Provisions:
Poland - Article 299 Section 6 point 2 and Article 302 Section 1 point 16 of the Law of 12 December 2013 on Foreigners
Poland - Article 61 para 3 of the Law of 30 August 2002 on proceedings before administrative courts
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Headnote: 

Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland within 30 days. If this obligation is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only the return decision can be forcibly executed.  Therefore, the present decision does not pose a direct threat of irreparable consequences for the applicant.

Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that the absence of the applicant would limit his right to court.

Facts: 

The applicant submitted an application for refugee status. The first instance authority (the Head of the Office for Foreigners) refused to grant him refugee status and subsidiary protection (without issuing a return order). After an appeal, the second instance authority (the Polish Refugee Board) upheld the decision.

The applicant appealed to the Regional Administrative Court in Warsaw. The appeal included a request to suspend execution of the appealed decision, since its execution would lead to irreparable consequences for the applicant. The Regional Administrative Court in Warsaw refused to suspend the execution of the decision of the Polish Refugee Board.

In the cassation complaint to the Supreme Administrative Court, the applicant advanced that the execution of the negative decision on asylum will result in the issuance of a return decision, which could be enforced before the court hears the present case. In such a case he would not be able to participate in the court proceedings concerning his asylum case. 

Decision & Reasoning: 

Under the Law on proceedings before administrative courts, the court can suspend the execution of the appealed decision upon the request of the claimant, if the execution of the decision would cause a substantive damage or have irreversible effects. Such decisions must be enforceable in their nature, which means they should impose obligations or provide rights to the applicant. A decision which refuses protection is not one of them.

The Court highlighted that under the Law on Foreigners the decision taken by the Polish Refugee Board refusing the applicant protection signifies that he/she is obliged to leave the territory of Poland within 30 days. In case of non-compliance, a person cannot be deported. If the obligation to leave Poland is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only this decision can be forcibly executed.

The Court does not accept the argument advanced by the applicant that the execution of the decision refusing protection should be suspended because the decision on return, issued in the future, can be enforced before the present proceedings finish. Indeed, temporary protection cannot be anticipated and the applicant can request suspension of the return decision before a court once it is issued.

The Supreme Administrative Court held that granting temporary protection is not justified by the argument that standards of the fair procedure and right to court require personal participation of the applicant in the proceedings before a court. Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that absence of the applicant would limit his right to court.

Outcome: 

The execution of the Polish Refugee Board’s decision was not suspended

Subsequent Proceedings : 

The applicant’s appeal on his refused application is not known.

Observations/Comments: 

Original ruling available at:

http://www.orzeczenia.com.pl/orzeczenie/9jg8z/nsa,II-OZ-41-15,ochrona_cudzoziemca_w_tym_nadawanie_statusu_uchodzcy_azyl_zezwolenie_na_pobyt_tolerowany_i_czasowa/1/

The argumentation of the ruling has been confirmed in other rulings of the Supreme Administrative Court (from 21 April 2015 no II OZ 309/15, from 7 May 2015 no II OZ 378/15, from 8 May 2015 no II OZ 402/15) and is followed by the Voivodeship Adminsitratvie Court in Warsaw (e.g. ruling from 29 May 2015 no IV SA/Wa 1227/15 available at: http://orzeczenia.nsa.gov.pl/doc/D55953D37A). Recent case law has also held the same: Supreme Administrative Court, No II OZ 1081/15, 19 January 2017 and Voivodeship Administrative Court, IV SA/Wa 2309/17, 10 January 2018.

It stands in direct contradiction with the ruling of the Supreme Administrative Court from 1 April 2015 no II OZ 218/15, also summarized for EDAL database and accessible here