Border Guard, in the procedure for granting residence permit for humanitarian reasons, must examine whether the obligation to return would not violate the right to family life and rights of the child, and whether the migrant poses a real threat to the protection of security and public order. The degree of danger must be so high that the interference with rights to respect for family and private life is justified.
The Head of the Office for Foreigners overruled the decision of the Border Guard to refuse to grant the residence permit for humanitarian reasons to a well-integrated family from Georgia. The case was referred back to the
authority of first instance (decisions number DL.WIPO.412.790.2019/JPP, DL.WIPO.412.882.2019/JPP). The Head of the Office for Foreigners gave several guidelines that must be taken into account by the Border Guard.
The Association for Legal Intervention pointed out that children, as a result of their long stay in Poland, integrated well into the society. They have Polish friends and know Polish culture. Their return would break social ties which they have developed over the years and, consequently, would violate their right to family and private life and the rights of the child, guaranteed in the Act on Foreigners and in the Convention on the Rights of the Child.
Psychological opinions regarding children indicated that their return to Georgia could significantly negatively affect their further education, intellectual and social development, as well as their sense of identity.
When examining the case, the Border Guard did not take into account the abovementioned circumstances, citing only that the father was convicted of a crime (to a suspended prison sentence). Criminal proceedings were
concluded over four years ago and since then the migrant did not trespass against the law. The administrative authority did not take into consideration the time that has elapsed since those events nor the current attitude of the migrant. He was sentenced to a probation due to his positive criminological prognosis.
The Head of the Office for Foreigners agreed with arguments presented by the Association for Legal intervention. The Head of the Office for Foreigners ordered the Commandant of the Warsaw-Okęcie Border Guard to reexamine the case and analyze whether the obligation to return migrants would violate their right to family and private life within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms and whether it would constitute a legitimate interference with the right to private and family life, as well as whether it would violate the rights of the child as set out in the Convention on the Rights of the Child to a significant degree threatening their psychophysical development. In the context of the father’s case, the Head of the Office for Foreigners ordered the Border Guard to determine, among other whether the migrant was rehabilitated after his criminal conviction. The administrative authority of second instance also drew the attention to the judgment of the Supreme Administrative Court of 4 October 2017 (case no. II OSK 362/17), in which it was pointedout that it is not sufficient to show any threat to the protection of security and public order but it must be proved that the degree of the danger posed by a migrant is so high that the interference with the rights to respect for family and private life is justified.
The Association participated in the proceedings as the social organization. The Association was represented by Aleksandra Pulchny.
The Association for Legal Intervention prepared an Call to Action regarding the family, which was signed by over 20,000 people.
See the video about the family (produced by Roma Zachemba):