The Supreme Administrative Court refrained from making a decision whether, in the light of the European law on the obligation to return, a migrant should have access to a lawyer ex officio and also what are the legal consequences of the lack of access to free legal assistance.

The Supreme Administrative Court, in its judgment on 24th March 2021, ref. no. II OSK 2315/20, overturned the verdict of the Voivodship Administrative Court in Warsaw and the Head of the Office for Foreigners on the refusal to restore the deadline for lodging an appeal against the return decision.

The case concerned a Russian citizen who had received the decision on the obligation to return while staying in the Przemyśl Detention Centre for Foreigners (migrants are kept there for migration control reasons, not because they committed a crime). He pointed out that he handed over a handwritten appeal to the employees of the centre within the deadline for submitting the appeal. However, the appeal was not registered until the following day, therefore already after the deadline for submitting it had passed. The migrant required special treatment due to his poor psycho-physical condition, the fact that he had experienced torture in the past, that he did not communicate in Polish and, moreover, that he could not afford to hire a lawyer for financial reasons.

Out of precaution, the migrant applied for restoration of the deadline for lodging an appeal. Both the Head of the Office for Foreigners and the Voivodship Administrative Court in Warsaw refused to reinstate the deadline. In the cassation appeal it was argued that the migrant is not guaranteed the right to free of charge assistance of a lawyer, despite such a requirement at the level of EU regulations. In his situation, that should result in the reinstatement of the deadline.

The cassation appeal also requested that a preliminary question be asked as to whether the regulations of EU law impose on Poland an obligation to guarantee the possibility of requesting a lawyer ex officio in the case of an obligation to return at the appeal stage, if lodging an appeal is necessary for the decision on the obligation to return to be subject to judicial review. Furthermore, whether, if such a possibility is not guaranteed, Poland should make it possible to lodge an appeal within a time limit that is later than that prescribed by national law.

The pan-European umbrella organisation ECRE (European Council on Refugees and Exiles) for the protection of refugee rights in Europe joined the case. It stressed the need to ask a preliminary question to determine whether EU law required legal aid to be guaranteed in the cases referred to. ECRE also stressed that if legal aid is not available, requiring third-country nationals to comply strictly with the 14-day time limit for appealing a return decision will never be in line with EU law if the person concerned does not have the funds to pay for legal representation.

The Supreme Administrative Court overturned the judgment of the Voivodship Administrative Court in Warsaw and the decision of the Head of the Office for Foreigners refusing to reinstate the deadline. However, in the justification of the judgment, it found that there are no grounds for formulating the preliminary questions in the scope requested, since

the subject of the proceedings is a factual circumstance – failure to meet the deadline for filing an appeal, not a legal issue requiring interpretation of Community law.

In the Association for Legal Intervention’s opinion such a standpoint of the Supreme Administrative Court did not allow to finally settle the key issue for the Polish system of protection of migrants’ rights, namely the scope of available legal assistance ex officio and the consequences of failure to provide such legal assistance.

The migrant was represented by attorney Małgorzata Jaźwińska, who cooperates with the Association for Legal Intervention.

More about the case in the report Association for Legal Intervention IN ACTION. Rights of foreigners in Poland in 2020.

Image by Markus Ronald Blechschmidtz Pixabay.