Poland: An effective waiver of right to appeal return decisions must be communicated in writing and in language that can be understood

Friday, November 29, 2019

The Supreme Administrative Court (SAC) recently published its judgment concerning the use of an effective waiver of the right to appeal return decisions.

The case concerned a Chechen national who lodged an application for international protection in Poland, before moving to Germany. The applicant was returned to Poland under the Dublin III Regulation. Following their return, the applicant was issued with a return order to Russia. At this time, the applicant signed a waiver of right to appeal against the decision, where it is alleged that the applicant declared voluntary return to Russia. The authorities also stated that a Russian translator had interpreted the statement about the possibility of waiving the right to appeal against the return decision. After meeting with their lawyer, the applicant appealed the decision. The Head of the Office for Foreigners declared the appeal inadmissible as the applicant had waived the right to appeal against the return decision.

On appeal to the Warsaw Administrative Court, it was argued that the applicant was not aware that she was signing a document waiving the appeal against the decision. Moreover, it was submitted that the return proceedings against the applicant were carried out in conditions of imprisonment in a Border Guard facility where the applicant did not have effective access to legal assistance. The decision was overturned and the Office for Foreigners lodged a cassation complaint against this judgment.
The SAC stated that the applicant should be informed in writing about the consequences of waiving the right to appeal. In particular, individuals should be informed that the waiver of the right to appeal renders an appeal against a return decision inadmissible. In this regard, the SAC emphasized that such an act means that the individual cannot exercise their right to a Court guaranteed by the Polish Constitution and Article 13(1) of Directive 2008/115. According to the SAC, the provisions regarding the waiver of these rights should be interpreted strictly and without prejudice to their fundamental nature.
Thank you to Jacek Bialas, lawyer at the Helsinki Foundation for Human Rights and ELENA Coordinator for Poland, for informing the EWLU team about this judgment and for assisting us with writing the summary. Based on an unofficial translation by the EWLU team. 

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.




Effective remedy (right to)