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Refusal of visa vs. right to court: Polish law incompatible with EU law, ruled Polish top administrative court

Polish law effectively denies foreigners access to a judicial review of a consul’s refusal of a Schengen visa. Based on a preliminary reference judgment of the European Court of Justice, Polish Supreme Administrative Court has made a decision declaring relevant national legislation incompatible with EU laws.No legal remedy
The case concerns a Moroccan national who was refused a Schengen visa by the Polish Consul in Rabat. The Moroccan, assisted by HFHR lawyers, lodged a complaint against the decision with the Provincial Administrative Court in Warsaw. PAC rejected the complaint, holding that Polish law provides no possibility of a judicial review of such a decision. The foreigner appealed to the higher instance, the Supreme Administrative Court, alleging a violation of the right to a court guaranteed by the EU Charter of Fundamental Rights. SAC, on its part, made a request for a preliminary ruling to the European Court of Justice.

ECJ: right to judicial review must be guaranteed
The European Court of Justice ruled that under the Schengen Visa Code and the Charter of Fundamental Rights, the appellate proceedings against a consul’s refusal to issue a visa must include an option to file a complaint to a court. For more information on the ECJ decision, please follow this link.

Case decided by Supreme Administrative Court
SAC invoked the ECJ judgment as the basis of its revocation of Warsaw’s Provincial Administrative Court decision to dismiss the foreigner’s complaint. Poland’s top administrative court decided to apply EU law directly, setting aside national regulations on the grounds of defectiveness.

The ECJ judgment in case C-403/16, Soufiane El Hassani v. the Minister of Foreign Affairs, can be accessed here.

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