With a judgment of October 18, 2023 (ref. no. IV SA/Wa 1416/23), the Provincial Administrative Court in Warsaw (WSA) annulled the appealed decision of the Head of the Office for Foreigners (UdsC) and the preceding decision of the Commander in Chief of the Border Guard (SG) concerning the migrant’s obligation to return.
The case concerns a Yemeni national who crossed the Polish-Belarusian border outside the border crossing point. Consequently, the Commander in Chief of the relevant Border Guard Post initiated proceedings against him to oblige the migrant to return, which he subsequently suspended after the migrant applied for international protection. After the discontinuation of the international protection proceedings, the Commander in Chief of the Border Guard post initiated return proceedings and subsequently issued a decision on the obligation to return. The decision was upheld by the Head of the Office for Foreigners.
The migrant appealed the decision of the Head of the Office for Foreigners to the Provincial Administrative Court requesting that it be revoked. The migrant argued, inter alia, that the refusal to grant him a residence permit on humanitarian grounds was defective. In response to the complaint, the Head of the Office for Foreigners requested that the complaint be dismissed, arguing, inter alia, that the decision on the obligation to return could be issued despite the fact that the migrant had left Poland.
The Provincial Administrative Court in Warsaw partially upheld the migrant’s argument. In the justification of the judgment, the Court indicated that the authorities of both instances did not thoroughly explain the facts of the case and did not comprehensively consider the materials collected in the course of the proceedings, as a result of which the decisions issued violated Articles 7, 77(1) and 80 of the Code of Administrative Procedure. The court referred in this regard to the challenging situation prevailing in the foreigner’s country of origin, i.e. Yemen. It also emphasised that, according to ECtHR case law, the general situation in the country of origin may be so serious that the return of the migrant would constitute a violation of Article 3 of the ECHR.
The Court also considered that the authorities could issue a decision on the foreigner’s obligation to return, even if the migrant had left Poland and travelled to another EU country before the administrative proceedings were completed. Simultaneously, the Provincial Administrative Court specified that the fact that the migrant had left Poland did not relieve the authorities of their duties to consider whether there were grounds for granting a residence permit for humanitarian reasons in the case. Indeed, in the Court’s opinion, a situation cannot be ruled out in which a migrant is transferred to Poland under the so-called Dublin procedure. Should the court dismiss the complaint, a final decision on the obligation to return would be in force and would not be subject to suspension. The migrant’s expulsion to Yemen could therefore occur, despite the fact that the evidence was not fully and comprehensively assessed.
Therefore, the Provincial Administrative Court did not support the argumentation expressed in the judgment of the Provincial Administrative Court in Warsaw of July 4, 2023, ref. no. IV SA/Wa 678/23, according to which, in a situation where a migrant is not residing on the territory of Poland, the authorities do not have to consider the prerequisites for not issuing a decision on the obligation to return.
The Court specified that in the re-examined proceedings, the first-instance authority should establish the current situation in the migrant’s country of origin and also consider the fact that the situation in the country of origin itself may preclude the migrant’s expulsion.
There is legal support from our Association for the migrant. The Court’s reasoning can be accessed HERE.