The Supreme Administrative Court recalls that even in the deportation of a person suspected of terrorist activities, it should be examined whether their return to their country of origin would not violate fundamental human rights.Nevertheless, it refrains from considering that the lack of access to the information and case files on which the decision is based constitutes a procedural violation.

The Supreme Administrative Court, in a judgement of September 6, 2022, ref. II OSK 457/21, overturned the judgement of the Provincial Administrative Court in Warsaw and the decision of the Minister of the Internal Affairs and Administration concerning the obligation to return a citizen of Tajikistan.

The Ministry of the Internal Affairs and Administration considered that the foreigner might be engaged in terrorist activities and for this reason a return obligation (deportation) decision was issued against him.The foreign national has never been subject to criminal proceedings on this subject.He has also not been convicted with a criminal conviction for involvement in terrorist activities.The contested decision does not indicate why it was considered that the foreigner could carry out terrorist activities.All evidence in this regard was withheld from the party and its attorney.

The Ministry of the Internal Affairs and Administration, as well as the Provincial Administrative Court in Warsaw, in overturned rulings, considered that in a situation where a person is suspected of terrorist activities he or she should be obliged to return, regardless of whether or not he or she would be at risk of torture or violation of the right to life in his or her country of origin.The Supreme Administrative Court did not agree with this standpoint. In the judgment, it emphasised that:

“the legislator has not excluded the obligation to examine the grounds for granting a foreigner a humanitarian residence permit or a permit for tolerated stay (Articles 348 and 351 of the Act on Foreigners) in a case for issuing a decision on the obligation to return pursuant to Article 329a of the Act on Foreigners. […] When issuing a decision under this provision, the same rules apply as when issuing a decision under Article 302 of the Act on Foreigners.”

In any case involving an obligation to return, it should thus be examined whether the foreigner’s return to his or her country of origin would not violate his or her fundamental human rights. 

The Supreme Administrative Court also identified that the obligation to examine the risk of a violation of Article 2 (right to life), Article 3 (prohibition of torture) or Article 6 (right to a fair trial) of the European Convention on Human Rights exists regardless of whether the foreigner has applied for a retrial or has complained directly to an administrative court.

The Supreme Administrative Court noted that:

“However, a party cannot be reproached simply because it exercised its choice of remedy and opted to initiate administrative court proceedings instead of filing a request for reconsideration by the Minister.According to the Supreme Administrative CourtThe Minister not only could, but should, determine and assess ex officio the circumstances relating to the current situation in the country of origin and the possible risk to the applicant in the event of his return to Tajikistan (in relation to his individual situation), necessary for the examination of the grounds for granting a tolerated residence permit.

In contrast, the Supreme Administrative Court did not agree with our position regarding a substantial violation of the applicant’s procedural rights in relation to the failure to inform him, or his attorney, of the reasons why he was considered likely to carry out terrorist activities.In the opinion of the Association for Legal Intervention, such a situation prevents a viable defence of the applicant’s rights and, following the judgment of the Grand Chamber of the European Court of Human Rights Muhammad and Muhammad v. Hungary, may also violate the human rights guaranteed by the Convention.

The Supreme Administrative Court indicated that:

“… a comparison of the circumstances of the case in which that judgment was given [Muhammad and Muhammad v. Hungary – fn. SIP] with the situation of the foreigner in the present case does not allow the conclusion that the determination of the applicant’s situation should be made according to the standards determined in those proceedings.”

The Supreme Administrative Court held that, despite the significant limitation of the applicant’s procedural rights, the applicant was afforded the opportunity to defend his rights, as:

  • he was informed that the reason for issuing the return decision was the suspicion that he might be engaged in terrorist activities, and moreover
  • the court had full access to the classified material in the case file.

In the view of the Association for Legal Intervention, such a position is incompatible with the standard resulting from the case law of the European Court of Human Rights.

The foreigner was represented by Małgorzata Jaźwińska, a lawyer cooperating with the SIP.

The judgement is available here.