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05/07/2022
PL: The Supreme Administrative Court held that the recast Asylum Procedures Directive must be applied directly by administrative courts reviewing first instance decisions, considering that in the Polish system, the administrative courts wrongly review contested decisions on the basis of the facts established in the course of administrative proceedings, that is the facts established at the date of issuing the reviewed decision.

ECLI
Input Provided By
Individual Expert
Other Source/Information
Type
Judgment
Original Documents
Relevant Legislative Provisions
EU Charter of Fundamental Rights (EU Charter); European Convention on Human Rights (ECHR); Recast Asylum Procedures Directive (Directive 2013/32/EU on common procedures for granting and withdrawing international protection) (recast APD) and/or APD 2005/85/CE
Reference
Poland, Supreme Administrative Court [Naczelny Sąd Administracyjny], X v Refugee Board, OSK 1753/21, 05 July 2022. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=3077
Case history
Other information

Poland, Supreme Administrative Court [Naczelny Sąd Administracyjny], OV v Council for Refugees, II OSK 1178/21, 14 June 2022. Link redirects to the English summary in the EUAA Case Law Database.

Abstract

The applicant, a Ukrainian national, applied for international protection in December 2019. Her application has been rejected by the Head of the Refugee Board and by the Provincial Administrative Court which dismissed the appeal. The applicant lodged an appeal in cassation against that judgment before the Supreme Administrative Court, challenging it in its entirety.


By decision of 5 July 2022, the Supreme Administrative Court annulled the judgment of the Provincial Administrative Court and the Head of the Office for Affairs Foreigners on refusing to grant refugee status the applicant.


In its arguments, the Supreme Administrative Court highlighted that Polish regulations allowed administrative courts to consider only the facts existing on the date of issuing the decision by administrative bodies, and not on the date of the judgment by the court. Thus, administrative bodies cannot consider the change of factual circumstances, in this case the outbreak of war, which took place after the issuance of the decision by the administrative authorities and before the court issued a judgment.


Nonetheless, the Supreme Administrative Court considered that the exceptional circumstances related to the evolution of the situation in Ukraine following the war launched by the Russian Federation on 24 February 2022 called for a single approach by the administrative judiciary to ensure that the procedure for assessing the legality of decisions refusing international protection complies with the standards of Article 47 of the Charter of Fundamental Rights of the European Union, Article 3 of the European Convention on Human Rights, and the provision of the recast Asylum Procedures Directive.


The Supreme Administrative Court concluded that it was inconsistent with EU law to not consider changes in the factual situation in the country of origin of foreigners, in this instance war, which took place following the decision provided by the administrative authorities. Thus, the Supreme Administrative Court considered the changing situation in Ukraine following the outbreak of hostilities covering the entire territory of Ukraine. This situation has changed considerably compared to the time of the final decision, which may have an impact on a different assessment of the risk of the foreigner and administrative courts have henceforth the right and obligation to consider changes in the factual situation that occurred after the issuing of a negative decision on international protection.


Country of Decision
Poland
Court Name
PL: Supreme Administrative Court [Naczelny Sąd Administracyjny]
Case Number
OSK 1753/21
Date of Decision
05/07/2022
Country of Origin
Ukraine
Keywords
Assessment of evidence/assessment of documents
Country of Origin Information
Indiscriminate violence
Refugee Protection