Administrative court dismisses appeal of Tajikistani national refused entry to Poland
The Provincial Administrative Court in Warsaw has decided a case brought by the HFHR’s client, a Tajikistani national who tried to file an application for international protection on 1 February 2017 at the border crossing station in Medyka. The Border Guard did not accept the application and issued a decision refusing entry to Poland. On the same day, an HFHR employee, acting as a legal representative of the foreigner, notified Border Guard officers that the foreigner wanted to apply for international protection.
However, the representative was prevented from contacting the foreigner. The Border Guard also failed to enable him to participate in the refusal of entry procedures. No official record of the interview conducted with the foreigner at the border crossing station was drafted; instead, the officers wrote a memo, which has not been signed by the foreigner.
Judgment of PAC
In the verbal justification of the judgment, the Provincial Administrative Court stated that the legal representative’s presence at the border crossing station meant that foreigner had been provided professional support in his attempt to submit an asylum application. However, as the Court noted, nothing in the case file suggested foreigner’s intent to file such an application.
“The court’s judgment seems to be contrary to law. Apart from the border check procedures, at the border crossing station, the foreigner was also a subject of administrative proceedings in the matter of a refusal of entry. The law expressly provides that a foreigner may act in such proceedings through legal representative and that such a representative is entitled to actively participate in the proceedings and to submit comments prior to the issuance of the relevant decision. However, in this case, the representative has been deprived of this right”, says Daniel Witko, a lawyer working for the HFHR.
Interpretation of EU law
The case file included indications of the foreigner’s intention to apply for international protection such as the HFHR’s intervention statement addressed to the Medyka branch of the Border Guard or a declaration included in the appeal against the refusal decision. This may be significant for the purposes of EU laws that may require that a foreigner should be treated as an applicant when making such a declaration and allowed to enter Poland. “However, the PAC has denied the motion for a request for a preliminary ruling to the European Court of Justice, which could have dispelled doubts arising in this case”, said Jacek Białas, an attorney who represented the foreigner pro bono before the Provincial Administrative Court.
Similar case, different judgment
In a similar case, the PAC has overturned a refusal of entry decision. In that case, the court reasoned that a memo could not constitute a basis for the refusal. To find out more about the case, use this link.