Lack of labor market test is not a formal defect of an application for work and residence permit. In consequence, the Province Governor had the obligation to consider the case. A represented migrant stayed in Poland legally since his application for residence permit.
Voivodship Administrative Court in Warsaw held that the Mazowieckie Province Governor fell into inactivity. He ordered to Province Governor to issue a decision within a month (judgement of 21 January 2020, no. IV SAB/Wa 514/19).
The case concerns a migrant who applied for work and residence permit in 2016. He did not attach the labor market test. In consequence the Mazowieckie Province Governor did not further consider the application.
The Association prepared a complaint to the administrative court on behalf of a migrant indicating an inactivity of the Province Governor. In the complaint the Association highlighted that the labor market test is not a formal defect of the application, as it is not required in every work and residence permit case. As the administrative authority has to analyze whether in the individual case the labor market test is required, the test cannot be considered a formal defect of the application. In consequence, the Province Governor erroneously did not further consider the application and fell into inactivity.
The Voivodship Administrative Court in Warsaw agreed with the Association. The court held that it is already generally agreed that the labor market test is not a formal defect of the application for work and residence permit. The labor market test is not necessary to initiate the proceedings, but to resolve it accordingly to the request of the applicant. Therefore, in the present case, there were no formal defects and the application should have been processed. As the application was not further considered by the Province Governor, he fell into inactivity.
It means that the migrant was residing legally in Poland since he applied for residence permit.
The migrant was represented by an attorney-at-law Małgorzata Jaźwińska. Previously, in similar cases, migrants were represented by legal counsel Patrycja Mickiewicz.