In November 2021, A.Y was apprehended by the Polish Border Guard in the town of G., after illegally crossing the border from Belarus. A.Y. did not make an asylum application, and was issued with an order to leave Polish territory and a 3-year re-entry ban. A.Y. contested this decision before the Commander of the Border Guard, but was unsuccessful.

A.Y. proceeded to lodge an appeal before the Voivodeship Administrative Court in Warsaw, claiming that the evidence of his case had not been properly assessed, that the lack of a hearing made it impossible to determine the facts of his case, and that the decision issued did not examine the risk of indirect refoulement. The applicant also requested the court to refer legal questions on the interpretation of Article 4 of the Return Directive and Articles 1,2,3 and 4 of the EU Charter of Fundamental Rights to the Court of Justice of the European Union. The Voivodeship Administrative Court in Warsaw dismissed A.Y.’s complaint, stating that the Border Guard’s decision complied with the law.

A.Y. then lodged a cassation complaint before the Supreme Administrative Court, claiming a violation of both procedural and substantive rules. The applicant stated that the lack of an interview and an incorrect assessment of the facts resulted in an unjustified dismissal of his case. He also claimed that the first instance court should have examined whether the order to leave the territory of the Republic of Poland would violate his right to life and freedom from torture or other inhuman or degrading treatment.

Regarding the absence of a hearing, the Supreme Administrative Court established that the fact that the case was held in a closed session was due to COVID-19 prevention measures, and concluded that measures were in place to allow the parties to express their positions.

With regard to the assessment of A.Y.’s case, the Supreme Administrative Court stated that the authority conducting the proceedings is obliged to properly determine the relevant circumstances, to consider whether the collected evidence confirms their existence, and to exhaustively consider all evidence collected. The court considered that in A.Y.’s case, the competent authorities had failed to provide factual and legal justification for the decision.

Moreover, the Supreme Administrative Court stated that provisions in Polish law and the Returns Directive on simplified return procedures require evidence that the person has been apprehended during an illegal border crossing, and that these elements were not provided in the justification for the decision issued to A.Y. The court also stated that the evidence collected did not allow to clearly determine the circumstances of the applicant's crossing of the border, nor the nature of his stay in Belarus.

The court stated that the determination of the facts of the case should also be linked to the assessment of the risk of refoulement, in line with Articles 3(a)(b) and 4 of the Schengen Regulation, Article 4(4)(b) of the Return Directive, and the provisions set out in the 1951 Refugee Convention. The court also stressed that it is the responsibility of Member States to ensure that persons concerned can effectively exercise their right to make an application for international protection.

The Supreme Administrative Court thus allowed the cassation appeal and repealed both the Border Guard’s and the Voivodeship Administrative Court’s decisions.