The Council for Refugees and the Office for Foreigners confirm that the mere fact of a conviction in a criminal case is not enough to recognize that a foreigner poses a threat to the security of the state or society and, on this basis, deny access to international protection.

The foreigner we represent in March 2021, the Office for Foreigners refused to grant international protection (at the same time granting it to the spouse and children of the foreigner), citing art. 20 paragraph 1 point 2 lit. c of the Act of June 13, 2003 on granting protection to foreigners within the territory of the Republic of Poland, i.e. stating that it poses a threat to state security in connection with a court sentence for possession of a small amount of drugs.

We appealed against the above decision, referring to the jurisprudence of Polish courts confirming that not every breach of a legal provision, including criminal law, proves that safety-related conditions have been met. In each case, the general reference by the administration authority to causing a threat from a foreigner is not enough, but specific premises justifying the adoption of such a position should be shown (Judgment of the Provincial Administrative Court in Warsaw of January 12, 2006, ref. V SA / Wa 2351 / 05; judgment of the Supreme Administrative Court of October 22, 2002, file ref. V SA 155/2002).

The Council for Refugees revoked the above decision also stating that: “The first instance authority should have considered whether the mere fact that the applicant had surrendered voluntarily punishment, pleaded guilty, served his sentence is sufficient to consider that he poses a threat to public safety. The burden of the act and the current performance of the applicant should be taken into account”. The head of the Office for Foreigners should also “examine whether the unity of the family and the right of minors to be brought up in a family will not be violated“.

The case was referred for re-examination by the Office for Foreigners, which finally revised its position and granted the foreigner represented by us subsidiary protection. The decision stated:

“Taking into account the fact that the foreigner’s spouse and children were granted subsidiary protection in the Republic of Poland, the authority decided to revise its previous position in relation to the previous assessment regarding the legitimacy of applying Article 20 paragraph 1 point 2 letter c. C, and thus violation of the principle of family unity and the right of minor children of Mr. Z. to be brought up in a family. After re-examining the case (…), the authority took into account not only the fact that the crime was committed, but also its burden and whether the foreigner suffered the consequences of his conduct (…), taking into account the circumstances of the case, the scale of the criminal practice and the fact that appropriate procedures were initiated against the Applicant by the public order authorities used, the Head of the Office states that the above situation is not a sufficient condition to exclude him from the possibility of obtaining subsidiary protection. “

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