On May 5, 2022, the Supreme Administrative Court (ref. II OSK 1182/21) issued a judgment in a cassation complaint by the Association for Legal Intervention. The case concerned the obligation to return of a Pakistani national and her two minor children, who had been living in Poland with the children’s father (the foreigner’s husband) for 8 years. The foreigner argued that due to her children’s intense integration into Polish society and the negative consequences that deportation would have on the children’s psycho-physical development, the prerequisites for granting them a residence permit on humanitarian grounds were met.
However, the administrative authorities of the first and second instance and the Provincial Administrative Court in Warsaw did not recognise this argumentation. The Provincial Administrative Court argued that in the case of deportation, the rights of the foreign woman’s children would not be violated in a way that would significantly endanger their psycho-physical development and that the children’s situation could not be invoked for the purposes of legalising their stay.
The Supreme Administrative Court found the Association’s complaint justified. It overturned the judgment of the Provincial Administrative Court and the decisions of the first and second instance authorities.
Firstly, it indicated that the degree of integration of a child with his or her peers is a circumstance that may affect the assessment of whether obliging a child to return to his or her country of origin would violate his or her rights under the Convention on the Rights of the Child.
In the opinion of the Supreme Administrative Court, the degree of integration of the child with his or her peers is a circumstance that may affect the assessment of whether obliging the child to return to his or her country of origin would violate his or her rights under the Convention on the Rights of the Child to such an extent that his or her psycho-physical development would be significantly affected. Undoubtedly, the possibility and degree of violation of the child’s rights in the event of an obligation to return also depends on other factors, such as the child’s age, family situation or the length of time the child has been outside the country of origin. However, it can be assumed that, in any case, the degree of integration of the child with peers should be taken into account in such an assessment.
It also recognised that children cannot be punished for the actions of their parents. The fact that the parents broke the migration law does not relieve the authority of its duty to investigate whether deporting the child would violate his or her rights.
it is impossible to accept a position amounting to ‘punishing’ children for the acts of their parents. The circumstances indicated could not therefore be the predominant argument to justify obliging the applicant to return (…).The obligation to return, particularly that adjudicated in the case at hand, is in the nature of a sanction for a breach of the law and must therefore also be assessed in the context of the principle of proportionality.
Finally, the Supreme Administrative Court noted that the fact that the whole family was obliged to return does not automatically justify the claim that there would be no risk to the children’s psycho-physical development.
Indeed, a full assessment of the circumstances indicated may lead to the conclusion that even a return to the country of origin with the family would not prevent a significant risk to the child’s psycho-physical development.
The administrative authority reconsidering the present case is obliged to consider the content of the presented judgment of the Supreme Administrative Court when issuing a decision concerning the foreign woman and her children.
The Association for Legal Intervention was represented by Ms Magdalena Sadowska, attorney-at-law, and Kornelia Trybułowicz.