Voivodship Administrative Court: stay of the execution of the asylum decision

EU law guarantees an asylum seeker a right to stay for the duration a courts’ proceedings.

The ruling of 17 July 2019, no. IV SA/Wa 1457/19, of Voivodship Administrative Court in Warsaw was based on Article 46 (5) of the procedural directive (2013/32/EU). The court highlighted the necessity to stay the execution of the negative asylum decision. It is a shift in the courts’ jurisprudence.

Previously courts held that the execution of the negative asylum decision cannot be stayed for the duration of the court’s procedure as the decision does not automatically impose a deportation order on an asylum seeker.

The Voivodship Administrative Court in Warsaw in the ruling of 17 July 2019 held that the obligation to leave Poland within 30 days from the date that the negative decision is delivered  is imposed on an asylum seeker by law. It can be a basis to issue a deportation decision which can be enforced. The court highlighted that in between the negative asylum decision and lodging a complaint to the court against the deportation order, an asylum-seeker is devoid of any protection. He or she runs a risk of forced deportation before the court’s ruling in his or her asylum case.

The Court mentioned that according to Article 46 (5) of the procedural directive (2013/32/EU), an asylum seeker needs to be guaranteed a right to stay in Poland until the end of a court’s procedure of first instance. The court also invoked rulings of the Supreme Administrative Court in similar cases (II OZ 1239/18, II OZ 46/19, II OSK 1257/19).

The court stated that the temporary protection needs to be given to an asylum seeker in order to guarantee his right to an effective remedy within the meaning of Article 46 (3) of the procedural directive.

Voivodship Administrative Court in Warsaw issued similar ruling in the proceedings no. IV SA/Wa 1480/19. The court held that the deportation of an asylum seeker before the court’s ruling is contrary to the CJEU ruling in the case C-180/17.

Complaints with the motion to stay the execution of negative asylum decisions were prepared by legal counsellor Magdalena Sadowska.

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