In the latest judgment, the Supreme Administrative Court states that:

· In Ukraine, there are massive attacks on civilians and protected facilities in gross violations of international humanitarian and human rights law, which must be taken into account by administrative courts.

· Despite the defective transposition of EU law into the Polish legal system, administrative courts have the right and obligation to take into account the change in the factual situation that occurred after a negative refugee decision was issued.

The Supreme Administrative Court in its judgment of July 5, 2022, file ref. II OSK 1753/21, repealed the judgment of the Provincial Administrative Court in Warsaw and all the decisions preceding them on refusing to grant refugee status to a citizen of Ukraine. The Supreme Administrative Court found that it was inconsistent with EU law that it was not possible to take into account changes in the factual situation in the country of origin of foreigners, such as war, which took place after the decision was issued by the administrative authorities.

The citizen of Ukraine was refused refugee status. The war in Ukraine broke out only after the ruling of the Provincial Administrative Court in Warsaw was negative for him. The Supreme Administrative Court had to decide whether it could take into account the outbreak of war in its decision. Pursuant to Polish regulations, administrative courts are entitled to take into account only the facts existing on the date of issuing the decision by administrative bodies, and not on the date of the judgment by the court. Thus, they cannot take into account the existing, even significant, change of factual circumstances, such as the outbreak of war, which took place after the decision was issued by the administrative authorities and before the court issued a judgment.

In the proceedings before the Supreme Administrative Court, we argued that Polish regulations in this respect were inconsistent with EU law, as EU regulations require that the court be able to examine all important factual circumstances that arose at the time of the ruling.

The Supreme Administrative Court agreed with our arguments. He pointed out that since the Polish regulations do not give administrative courts the right to take into account the circumstances that arose after the decision on refusal to grant the refugee status was issued

Directive 2013/32 / EU of the European Parliament and of the Council […] has not been properly implemented into the national legal order, which makes it necessary to apply this directive directly. The content of art. 46 sec. 3 of Directive 2013/32 / EU is formulated so clearly that it allows its direct application by the administrative court.

The Supreme Administrative Court approved the actions of the Provincial Administrative Court in Warsaw, which in its latest jurisprudence, acting directly on the basis of EU regulations, takes into account the outbreak of the war in Ukraine, even if it happened after the decision was issued by the administrative authorities.

The SAC emphasized that military operations, in fact, concern the entire territory of Ukraine due to the use of long-range missiles. The Supreme Administrative Court ruled that “in connection with these exceptional circumstances that arose after the judgment under appeal was issued, in order to guarantee the complainant, who is afraid to return to his country of origin, the rights under Art. 46 sec. 1 and 3 of Directive 2013/32 / EU and Art. 47 of the Code of Civil Procedure, the Supreme Administrative Court is obliged to hear the case in a manner ensuring its examination ex nunc, both in terms of facts and legal issues. ” The SAC emphasized that there are massive attacks on civilians and protected facilities in Ukraine, in gross violation of international humanitarian law and human rights.

Why is this judgment so important?

The verdict resolves an important issue that Polish migration lawyers have been arguing about for years: at what stage does the asylum procedure actually end, i.e. to which point, for example, a person who has been unsuccessfully applying for refugee status cannot be deported. The Polish authorities most often claim that the procedure ends with a decision of the second instance, ie issued by the Refugee Board. Therefore, only exceptionally, after obtaining a special security from the administrative court (suspension of the execution of the decision), such a person may wait in Poland for his case to be examined by that court. If she is not secured, she may be deported before the sentence is passed in her or his case.

On the other hand, defenders of the rights of migrants and refugees (including ALI) recognize that the refugee proceedings end only with the ruling of the administrative court, because this court is a “tribunal” within the meaning of European law. Pursuant to EU law, a refugee should be inviolable pending the judgment of such a tribunal. So far, however, the interpretation that is less favorable to refugees has prevailed. Mainly because in Polish administrative court proceedings, a court cannot examine a case in its entirety, its operation is limited to assessing whether the administrative bodies were right when issuing a specific decision at a given time.

This limitation of Polish administrative courts is used by decision-makers as an argument: since the court does not hear the case in full, it cannot be a tribunal within the meaning of EU law. So where to look for the tribunal? It is the last body examining the case in its entirety, i.e. the Refugee Board (second instance body). So, after her decision, the refugee can be deported.

The latest judgment of the Supreme Administrative Court says something completely different:

The fact that the Polish court does not fully hear the case is the fault of the poor implementation of EU regulations. The administrative court is fully a tribunal within the meaning of EU law, and the legislator is to blame for not being able to fully perform its function. But you can apply EU law directly, and that’s what administrative courts should do in such situations. That is, contrary to the Polish law, they should consider refugee cases in full, taking into account the events that also took place after the last decision in the case was issued.

What are the consequences of the judgment:

1.      Refugees who, after obtaining a second unfavorable decision, have lodged a complaint with an administrative court should automatically benefit from protection against deportation until the sentence is passed.

2.      In such a situation, a foreigner cannot be placed in a guarded center on the basis of the Act on foreigners (common practice), but only the Act on granting protection to foreigners, which means that detention may be used for much shorter periods and there must be a special reason for it.

3.      Citizens of Ukraine, who received negative refugee decisions before the outbreak of the war, and their complaints are only now being examined by the administrative court, should be able to invoke the situation in Ukraine before the court, even if the war was not the subject of their proceedings.

The foreigner was represented by the attorney-at-law cooperating with the Association of Legal Intervention lawyer Małgorzata Jaźwińska.

You can download the judgement below.

Photo: Eugenivy Now | Unsplash