The circumstances that make it possible to derogate from the provisions of the return directive and the return obligation procedure must be strictly demonstrated. Regardless, the principle of non-refoulement must be applied in every case of returning a foreigner to another country.
The Supreme Administrative Court, in a judgement of May 10, 2023, ref. II OSK 1735/22, overturned the judgment of the Provincial Administrative Court in Warsaw, reversed the decision of the Border Guard Commander-in-Chief and the decision of the Border Guard Outpost Commander to order the foreigner to leave the territory of the Republic of Poland.
The case concerned a foreigner who was allegedly apprehended by the Border Guard immediately after crossing the border in a place not intended for that purpose. A decision was issued against the foreigner ordering him to leave the territory of the Republic of Poland, together with a prohibition on re-entry into the Schengen area for a period of 3 years. The order contained no factual or legal justification.
The Supreme Administrative Court upheld the cassation appeal filed by the foreigner. The verdict indicated that the issuance of the order follows administrative proceedings, and is not merely a documentation of “official actions taken in connection with the protection of the state border.” This means that the order should contain appropriate factual and legal justification.
The SAC noted that under EU regulations, Member States have the authority to apply simplified national procedures allowing for the expeditious removal of third-country nationals caught crossing external borders, without having to go through all the procedural steps indicated in the Return Directive (Directive 2008/115/EC).
However, in such cases, the circumstances that allow a foreigner to be classified as a person to whom the provisions of the Return Directive and the return obligation procedure do not apply should be strictly demonstrated. The Supreme Administrative Court found that in the case at hand this requirement was not met. The protocol of border crossing drawn up by the Border Guard officer did not contain sufficient explanations of the relevant circumstances. Neither the content of the border crossing protocol (which contained a one-sentence description of the stated event) nor other documents collected in the case showed findings detailing the location of the place where the border crossing was supposed to have occurred. Thus, there was no way to clearly determine the circumstances of the foreigner’s border crossing.
The SAC also noticed that the collected evidence also did not make it possible to ascertain the nature of the foreigner’s stay in Belarus, what purpose accompanied his stay in Poland and under what conditions his return occurred as a result of the execution of the imposed order. The SAC pointed out that the principle of non-refoulement should also be observed when a state waives the application of the Return Directive to third-country nationals who have been detained or apprehended in connection with the illegal crossing of the external border of a member state.
The SAC pointed out that the principle of non-refoulement should also be respected when a state waives the application of the Return Directive to third-country nationals who have been detained or apprehended in connection with the illegal crossing of the external border of a member state.
It is the responsibility of Member States to ensure that the persons concerned can effectively exercise their right to apply for international protection (refugee status).
To sum up, in the case described above, the collected evidence contained deficiencies that made it impossible to decide for what reasons the applicant had illegally crossed the border, whether he had not expressed his intention to apply for international protection in Poland, and whether he had raised objections to a possible safe return to Belarus. Accordingly, the SAC overturned the appealed judgment and earlier resolutions.
The foreigner was represented by SIP associate attorney Malgorzata Jaźwińska.
The entire judgment can be read here.