Poland- The Supreme Administrative Court, 22 June 2017, II OSK 23366/16

Country of Decision:
Country of Applicant:
Date of Decision:
II OSK 23366/16
Court Name:
The Supreme Administrative Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Poland - 1. Art. 138
art. 145 par. 1 p 1 lit. c
art. 184 of the Law on Proceedings before Administrative Courts (t.j. Dz. U. z 2016 r. poz. 1066
Poland - 2. Art. 7
art. 8
art. 75 par. 1
art. 78 par. 1
art. 79
art. 80
art. 107 par. 3
art. 136 the Administrative Procedure Code (t.j. Dz. U. z 2016 r. poz. 23 z późn. zm.)
Poland - 3. Art. 48 ss. 1
art. 97 ss. 1 p 1a of the Law of 13 June 2003 on granting protection to foreigners on the territory of the Republic of Poland
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Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children. 


A.B., a Chechen Russian national, made an application for refugee status, which included his wife and his minor children. In his application A.B. stated that while was not politically active and he had never taken part in any armed conflict, he was persecuted by masked individuals, who would take him away and beat him however, he had never been arrested or prosecuted. The Head of the Office for Foreigners refused to grant the Applicant refugee status, subsidiary protection or tolerated stay, due to a lack of evidence of persecution for any of the Convention reasons as well as a lack of credibility of his account.

Following the Foreigner’s challenge, the Polish Refugee Board confirmed the initial decision, concluding that the Foreigner’s reason for leaving his country of origin was his wish to improve his living conditions, as opposed to his need for international protection.

A.B. appealed this decision to the Regional Administrative Court in Warsaw, accusing both administrative bodies of making procedural errors regarding their failure to afford special treatment to a victim of violence and their failure to consider the request to re-interview A.B. and interview his children.  The Regional Court fully confirmed the analysis of the Refugee Board and stressed that a wish to afford better living conditions to one’s children, does not justify providing them with international protection.

The Children’s Rights Ombudsman issued a cassation appeal regarding the ruling of the Regional Administrative Court, due to a violation of rules of administrative procedure, including through the failure to interview the Appellant’s children regarding their level of integration and the grounds for granting them tolerated stay.  

Decision & Reasoning: 

The court granted the cessation appeal, due to the procedural errors regarding a refusal to interview the Appellant’s children (in the presence of a psychologist) regarding the level of their integration with the Polish society and their ties to their country of origin. The previous refusals to allow evidence were in violation of provisions according to which everything which may assist in the resolution of the case and which is not against the law ought to be allowed and a request for the introduction of evidence ought to be allowed if it relates to circumstances pertinent to the case. An administrative body is therefore obliged to consider all evidence and clarify the matter using all available evidence, and any assessment of the credibility of evidence cannot take place until such evidence is considered.

The evidentiary applications made in the appeal were significant as, following the refusal of refugee status it is necessary to decide whether or not to grant tolerated stay, i.e. if an expulsion would violate the right to family life or the rights of a child under the Convention on the rights of a child.

In the Court’s opinion, according to the two instance rule, the Polish Refugee Board while considering the challenge should have considered the case anew and made a new decision instead of merely controlling the decision of the I instance and analysing the arguments made in the challenge. The Court of I instance also should have allowed the appeal in the event of agreeing on the necessity to obtain additional evidence.  The Court stressed that the administrative bodies are obliged to gather all evidentiary material exhaustively, both of their own accord and following the indication made by a party to the proceedings. The II instance administrative body also violated the rule of unconstrained assessment of evidence, by failing to consider the evidential applications made in the proceedings.

The Court supported the stance presented by the Ombudsman in his cassation appeal, concluding that the Court of I instance failed to gather evidence in an appropriate manner and failed to establish the facts of the matter correctly. The cassation appeal was allowed and the court set aside the previous court order and the challenged decision in so far as these related to refusing to grant a tolerated stay. 


Cessation appeal granted.

Subsequent Proceedings : 

While reconsidering the application for tolerated stay the administrative body shall be obliged to consider the rulings of the Supreme Administrative Court. 


This case summary was written by Brenda Efurhievwe, BPTC student at BPP University. 

Other sources cited: 

UN Convention on the Rights of the Child - Art. 2, art. 3 ss 1, art. 4, art. 6 ss. 2, art. 27 ss. 3, art. 28, art. 29 ss. 1.