An applicant applied for international protection in Poland. Through Eurodac, the Polish authorities found that the applicant had previously applied for international protection in Italy. The Head of the Office for Foreigners thus decided to transfer the applicant to Italy. The applicant requested that the authorities reconsider the decision. He claimed that he had resided in Poland legally as he had been issued a residence permit by Italy in connection with his application for international protection there.

The Head of the Office for Foreigners concluded that there were no compelling reasons to believe that there were systemic flaws in the asylum procedure and reception conditions in Italy resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the EU or Article 3 of the ECHR. The authority also underlined that residence permits issued by Italy in connection with an application for international protection did not entitle the applicant to move to other Member States. The authority thus upheld its decision.

The applicant appealed the decision to the Voivodeship Administrative Court, which held that the applicant was under the mistaken belief that the provisional document issued by the Italian authorities in connection with the application for international protection was a residence permit entitling him to reside legally on the territory of another Member State of the EU and the Schengen area. The court pointed out that, under EU law, the document issued to the applicant by the Italian authorities is not treated as a residence permit constituting a basis for legal residence in another Member State. The appeal was rejected.

The applicant appealed to the Supreme Administrative Court. He claimed that there had been a violation of procedural rules, that he had arrived and stayed in Poland lawfully using an Italian residence permit and that the decision had violated Article 393b of the Aliens Act, and that there was no ground to transfer him to Italy under article 18(1)(b) of the Dublin III Regulation.

The Supreme Administrative Court stated that under Article 18(1)(b) of the Dublin III Regulation, the Member State responsible is required to take back an applicant whose application is under examination and who has lodged an application in another Member State or who is staying on the territory of another Member State without a residence document. In the present case, the issue was whether the provisional document issued to the applicant by the Italian authorities in connection with the procedure of international protection was a residence permit entitling him to reside legally on the territory of another Member State of the European Union and the Schengen area.

The Supreme Administrative Court noted that the residence permit from Italy was issued in connection with an application for international protection and was therefore not a “residence document” within the meaning of Article 2(l) of the Dublin III Regulation. The court therefore deemed that the applicant had not legally resided in Poland and that the decision to transfer him to Italy had been correct. The court further found that the allegations of violations of article 393b(1) and article 108(1)(1)-(2) of the Law on Foreigners and of articles 141 § 4 and 145 § 1 of the Code of Administrative Procedure were unfounded. The appeal was dismissed.