Poland - Supreme Administrative Court of Poland, 24 July 2011, II OSK 557/10

Country of Decision:
Country of Applicant:
Date of Decision:
25-07-2011
Citation:
II OSK 557/10
Court Name:
Supreme Administrative Court of Poland
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 6
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 15
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 23 > Art 23.4 > Art 23.4 (h)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 23 > Art 23.4
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 23
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 25 > Art 25.2 (f)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 25
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 28 > Art 28.1
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 28
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 32 > Art 32.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 32
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 34 > Art 34.2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 34
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15 > Art 15 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15
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 40 § 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 15
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 § 2(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 § 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 97 § 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 97 § 1(2)
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Headnote: 

The administrative authorities, when carrying out an assessment of whether a subsequent application for refugee status is inadmissible (based on the same grounds), should compare the factual basis for the administrative case on which a final decision has been made with the testimony of the foreignor provided in the subsequent application and should also examine whether the situation in the country of origin of the applicant and also the legal position have changed.

Facts: 

The foreignor submitted a third application for refugee status in Poland. In this application, he repeated that he was frightened of returning to his country of origin, from where he had fled military service.

The head of the Office for Foreigners found that the application of the foreignor was based on the same grounds as the previous applications, so the merits of the case had already been examined. For this reason, the court found the foreignor's application inadmissible and dismissed the proceedings. The Polish Council for Refugees upheld the decision appealed against, and the Regional Administrative Court in Warsaw dismissed the appeal against this ruling. The foreignor appealed in cassation to the Supreme Administrative Court of Poland.

Decision & Reasoning: 

The Supreme Administrative Court of Poland found that, when an assessment is being made of whether a subsequent application for refugee status is based on the same grounds, the administrative authorities should not limit themselves only to a simple comparison between the facts set out in the subsequent application and the facts cited by the applicant in the previous applications. This is because the grounds on which basis a subsequent application has been drawn up should be set against all relevant facts established by the authorities in the previous proceedings and not just those contained in previous applications.

The facts cited by the foreignor in his application for refugee status, for the purposes of the authority, are just a source of information about the circumstances of the case and serve to provide direction for the court's investigations. The administrative authority is not bound by the legal or factual basis indicated by the foreignor in his application; it is obliged to investigate the facts in accordance with the principle of objective truth. Furthermore, the facts that form the basis for an application frequently change or are added to during the course of the proceedings. At the same time, the scope of information contained in the application by the foreignor is not identical to the factual findings established by the administrative authority during the course of the proceedings (as the findings of the authority are supposed to be broader in scope). One cannot assess whether two administrative cases are identical by comparing the two applications that initiated these proceedings. Rather, the content of the subsequent application must be compared with the totality of facts considered to form the factual basis for the administrative case on which a final decision was made.

The factual basis of an application consists in information concerning the individual position of the foreignor and the situation in his country of origin. The administrative authorities should therefore, when performing a subsequent assessment, examine whether the situation has changed in the country of origin of the applicant from the position found in the course of the previous proceedings for refugee status.

If the foreignor cites only personal circumstances in his application, this does not relieve authorities of this obligation, as the situation in the country of origin may be unknown to the applicant, who typically assesses his situation subjectively, unaware of what has happened since he left his country of origin.

The assessment of how similar two or more cases are cannot be limited just to an analysis of the facts; the assessor also needs to examine whether the legal position in relation to the proceedings in question has changed.

In this case, the administrative authorities did not examine the question of whether the applicant met the tests for subsidiary protection, despite the fact that the law had changed and that this form of protection had been introduced during the course of the administrative proceedings.

An application is found inadmissible if it is based on the same grounds. This concerns not just the facts but also the legal basis. If the law changes, an application made on the same factual grounds as before will not prevent a subsequent application from being examined on the merits.

Outcome: 

The judgment of the Regional Administrative Court in Warsaw was overturned, as were the previous decisions by the Polish Council for Refugees and the Head of the Office for Foreigners.

Subsequent Proceedings : 

After the issue of the judgment, the Head of the Office for Foreigners issued a decision based on the merits, refusing the applicant all forms of protection. The applicant appealed. The Polish Council for Refugees dismissed the appeal proceedings in the case as redundant (as parallel proceedings were underway for refugee status to be granted; these had been initiated on the basis of another application by the applicant). As a consequence of the appeal, the Regional Administrative Court in Warsaw, in March 2013, overturned the decision appealed against.

Observations/Comments: 

This judgment by the Supreme Administrative Court of Poland has affected how subsequent applications for refugee status are examined.

The judgment by the Supreme Administrative Court of Poland  has been cited in the following decisions (available at http://orzeczenia.nsa.gov.pl):

V SA/Wa 2332/11, judgment of the Regional Administrative Court in Warsaw of 13 June 2012

V SA/Wa 1910/11, judgment of the Regional Administrative Court in Warsaw of 14 March 2012

V SA/Wa 1699/11, judgment of the Regional Administrative Court in Warsaw of 1 February 2012

V SA/Wa 1387/11, judgment of the Regional Administrative Court in Warsaw of 24 January 2012

V SA/Wa 1556/11, judgment of the Regional Administrative Court in Warsaw of 14 December 2011

V SA/Wa 1424/11, judgment of the Regional Administrative Court in Warsaw of 2 December 2011

V SA/Wa 1375/11, judgment of the Regional Administrative Court in Warsaw of 16 November 2011

V SA/Wa 2926/10, judgment of the Regional Administrative Court in Warsaw of 27 April 2011