CJC Database

Member State

Poland

Topic

mutual trust and impartiality

Sector

Asylum, Role of National Higher Courts, Judicial Interaction Techniques

Deciding Court Original Language

Naczelny Sąd Administracyjny

Deciding Court English translation

Supreme Administrative Court in Poland

Registration N

case number II OSK 382/20

Date Decision

11 January 2022

ECLI (if available)

N/A

National Follow Up Of (when relevant)

This national case is not a direct follow-up of a CJEU or ECtHR decision.

EU legal sources and CJEU jurisprudence

The European law sources referred to in this case include:

Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (Dublin III Regulation):Establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person. This regulation was directly referred to, particularly in relation to Articles 17 (discretionary clauses) and 12 (criteria for determining responsibility for an asylum claim).
Charter of Fundamental Rights of the European Union (CFR):

Charter of Fundamental Rights of the European Union (CFR):

Articles 7 (respect for private and family life) and 47 (right to an effective remedy and to a fair trial) were invoked in relation to the right to family life and judicial protection.
Treaty on the Functioning of the European Union (TFEU):

Relevant to the application of EU law and procedures within the context of asylum and immigration matters across Member States.

CJEU Judgments:

Case C-63/15, Mehrdad Ghezelbash v. Staatssecretaris van Veiligheid en Justitie: This judgment was directly referenced in relation to the right to an effective remedy under the Dublin III Regulation.
Case C-155/15, George Karim v. Migrationsverket: Cited concerning the discretionary power of Member States under the Dublin III Regulation.
Case C-661/17, M.A., S.A., A.Z. v. Secretary of State for the Home Department: This case was referenced regarding the application of discretionary clauses and the consideration of humanitarian reasons under Article 17 of the Dublin III Regulation.
Case C-578/16 PPU, C.K., H.F., A.S. v. Slovenia: Referenced in relation to the interpretation of the Dublin III Regulation in light of fundamental rights guaranteed by the CFR, especially regarding family life.

Indirect References:
Treaty on the Functioning of the European Union (TFEU): Indirectly referenced as the overarching legal basis for the Dublin III Regulation and the procedures it governs.

ECtHR Jurisprudence

In the case under consideration, ECtHR jurisprudence was referred to indirectly by invoking the protection of fundamental rights, particularly through:

Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman or degrading treatment. This was referenced in relation to the risk of mistreatment upon the transfer of the applicant under the Dublin III Regulation.

Article 8 of the ECHR was indirectly invoked concerning the right to respect for family life, which is relevant in assessing whether the transfer under the Dublin III Regulation could lead to a violation of family unity, given the applicant's marriage to a Polish national.

In particular, the B.S. v. Spain and Tarakhel v. Switzerland cases are often cited in similar situations concerning the risk of human rights violations in the context of the Dublin transfers. However, the decision did not explicitly mention these cases, focusing more on the CJEU case law.

Subject Matter

The case addresses the transfer of asylum seeker A.M. to another EU Member State under the Dublin III Regulation. A.M. opposed the transfer, citing humanitarian grounds and his marriage to a Polish citizen. The legal issue revolves around whether the discretionary clause (Article 17) could be applied to allow Poland to take responsibility for his asylum request.

Legal issue(s)

The legal issues in the case involve determining whether Poland can apply the discretionary clause (Article 17) of the Dublin III Regulation to take responsibility for A.M.'s asylum application, rather than transferring him to another EU Member State, based on humanitarian reasons, such as his marriage to a Polish citizen. Additionally, the case examines if A.M.'s right to family life under Article 7 of the EU Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (ECHR) should prevent the transfer.

Request for expedited/PPU procedures

NO

Interim Relief

In this case, neither the national court nor the applicant requested interim relief from the CJEU or the ECtHR.

National Law Sources

The national law sources referred to in the case include:

Act of 13 June 2003 on Granting Protection to Foreigners within the Territory of the Republic of Poland (Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej)

Governs the procedures for granting international protection (asylum and subsidiary protection) in Poland.
Code of Administrative Procedure (Kodeks postępowania administracyjnego) (KPA)

Establishes the framework for administrative proceedings in Poland, including appeals and legal remedies.
Act of 12 December 2013 on Foreigners (Ustawa o cudzoziemcach)

Provides rules related to the stay of foreigners in Poland, including deportation and return procedures.

Facts of the case

In this case, the applicant, A.M., a foreign national, sought international protection in Poland. After filing his asylum request, it was determined that another EU member state was responsible for processing his application under the Dublin III Regulation. The Polish authorities initiated procedures to transfer him to that state, which accepted the responsibility. A.M. contested the decision, arguing that he could not return to the designated country for humanitarian reasons and personal safety concerns. Furthermore, during the proceedings, he married a Polish national, which he argued should influence the decision regarding his transfer, invoking the right to family life. The Supreme Administrative Court of Poland ultimately annulled the earlier decisions to transfer A.M., emphasizing that the marriage and humanitarian grounds required reconsideration under the Dublin III discretionary clauses.

Reasoning (role of the Charter or other EU, ECHR related legal basis)

In its legal reasoning, the Supreme Administrative Court of Poland focused on the application of the Dublin III Regulation, particularly the discretionary clauses found in Article 17, and the right to family life protected under Article 7 of the Charter of Fundamental Rights of the European Union (CFR). The applicant, A.M., had argued that his transfer to another EU member state, responsible for his asylum claim, should not proceed due to his marriage to a Polish citizen, which occurred after the administrative decisions but before the judicial proceedings.

The Court emphasized that the Dublin III Regulation offers mechanisms allowing for the transfer of asylum seekers between member states, but also includes discretionary powers for member states to assume responsibility for an asylum claim for humanitarian or family reasons, even when another state is officially responsible. These powers are enshrined in Article 17(1), which allows member states to examine an asylum application even if they are not required to do so under the Regulation’s usual criteria. The Court acknowledged that A.M.'s marriage to a Polish citizen constituted a significant change in his circumstances, directly impacting his family life and requiring reconsideration in light of Article 7 of the CFR, which guarantees respect for private and family life.

Furthermore, the Court referred to the CJEU's case law, particularly the decisions in C-63/15 Mehrdad Ghezelbash and C-661/17 M.A., S.A., A.Z., which establish that asylum seekers have the right to challenge the application of the Dublin III Regulation's criteria before a court and that later changes in the applicant’s situation—such as marriage—should be considered in the decision-making process.

The Court also took into account Article 47 of the CFR, guaranteeing the right to an effective remedy, which played a central role in assessing whether A.M. had been granted sufficient procedural safeguards in the previous decisions. The judgment highlighted that the lower court had failed to assess the marriage's relevance to the discretionary clauses, leading to a violation of A.M.’s rights under EU law. Moreover, the Court noted the CJEU’s decision in Bundesrepublik Deutschland v. Hasan (C-360/16), which underscores the importance of considering all circumstances, including family ties, at the time of judicial review.

In conclusion, the Court annulled the decisions of both the Refugee Board and the lower Warsaw Administrative Court, instructing the authorities to reassess A.M.'s case, particularly in light of the right to family life and the discretionary powers under the Dublin III Regulation. The judgment ensures compliance with both the Dublin III Regulation and the Charter of Fundamental Rights, underscoring the significance of procedural rights and the importance of considering changes in applicants’ personal circumstances.

Relation of the case to the EU Charter

In this case, the EU Charter of Fundamental Rights was invoked to assess the applicant's right to family life and the protection of procedural rights. Specifically, Article 7 of the Charter, which guarantees respect for private and family life, played a significant role in the legal reasoning, given that A.M. had entered into a marriage with a Polish citizen. The court had to consider whether the transfer of A.M. to another EU country would infringe upon his right to family life.

Additionally, Article 47 of the Charter, which guarantees the right to an effective remedy and a fair trial, was also cited. The court referred to this provision to determine whether A.M. had been given sufficient procedural safeguards in the context of his asylum and transfer process under the Dublin III Regulation.

The Charter was used not only to support the reasoning of the court but also as a legally binding parameter. This was crucial in assessing whether the administrative decisions regarding A.M.'s transfer violated his fundamental rights under EU law, particularly his right to maintain his family life and to have effective legal recourse.

The court relied on the Charter as a binding legal instrument, which required authorities to take into account changes in A.M.'s personal situation, including his marriage, and the potential impact of the transfer on his family life.

Relation between the EU Charter and ECHR

In this case, the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) were both relevant for evaluating the fundamental rights of the applicant, A.M.

The Charter was invoked because it applies within the scope of EU law, particularly in cases related to asylum procedures and immigration law governed by Dublin III Regulation. Article 7 of the EU Charter (respect for private and family life) closely mirrors Article 8 of the ECHR (right to respect for private and family life), but the Charter was used as a more comprehensive and directly applicable source in this case, since the decision involved applying EU law.

Article 47 of the EU Charter, which guarantees the right to an effective remedy, was particularly important in determining whether A.M. had been afforded adequate procedural protections. While the ECHR's Article 6 provides similar protections regarding the right to a fair trial, the Charter’s Article 47 has broader applicability in EU law contexts, especially when examining the fairness and accessibility of asylum procedures and remedies.

The ECHR was not cited ornamentally in this case; it was relevant because Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, informed the broader human rights analysis, particularly regarding A.M.'s fear of being returned to a country where he might face harm. However, the court primarily leaned on the EU Charter as a more extensive protection mechanism due to its direct link with EU law and the Dublin III procedures.

In this particular case, the protection offered through the EU Charter was considered more comprehensive because it was directly enforceable and binding on the member states when applying EU regulations, such as Dublin III, in determining responsibility for asylum applications. The Charter's procedural safeguards (e.g., the right to a fair trial and family unity) were more relevant for the court’s decision-making process than the ECHR, although both legal instruments were taken into account for a holistic analysis.

Use of Judicial Interaction technique(s)

Elements of Judicial Dialogue:

Consistent Interpretation:

The court utilized the technique of consistent interpretation to align national law with EU law obligations. It interpreted national provisions and the application of the Dublin III Regulation in a manner consistent with the Charter of Fundamental Rights of the European Union (CFR) and CJEU case law.
By interpreting Article 17(1) of the Dublin III Regulation (the discretionary clause), the court ensured that national authorities consider humanitarian and family reasons when deciding on the transfer of asylum seekers, in line with EU standards.

Comparative Reasoning with European Case Law:

The court referred to several key CJEU judgments to support its reasoning and ensure the correct application of EU law:
Case C-63/15, Mehrdad Ghezelbash v. Staatssecretaris van Veiligheid en Justitie: Highlighted the right of asylum seekers to an effective remedy and to challenge the application of Dublin criteria.
Case C-155/15, George Karim v. Migrationsverket: Addressed the scope of judicial review in Dublin transfer cases.
Case C-360/16, Bundesrepublik Deutschland v. Aziz Hasan: Emphasized that courts must consider all relevant facts up to the point of their decision, including changes in the applicant's circumstances.
Case C-661/17, M.A., S.A., A.Z. v. Secretary of State for the Home Department: Discussed the discretionary power under Article 17(1) and the need to protect fundamental rights.
Case C-578/16 PPU, C.K., H.F., A.S. v. Republika Slovenija: Focused on the importance of fundamental rights in the application of the Dublin III Regulation.
By engaging with these judgments, the court ensured that its interpretation of EU law was consistent with that of the CJEU.

Proportionality:

The court applied the principle of proportionality to assess whether transferring A.M. would disproportionately affect his right to family life under Article 7 of the CFR.
It weighed the state's interest in adhering to Dublin procedures against the applicant's fundamental rights, concluding that his recent marriage to a Polish citizen necessitated a reconsideration of the transfer decision.

Mutual Recognition and Trust:

While the Dublin III Regulation operates on the principle of mutual trust between Member States, the court recognized that this trust is not absolute, especially when fundamental rights are at stake.
The court acknowledged that Member States have discretion under Article 17(1) to assume responsibility for an asylum application to protect fundamental rights, thus not strictly adhering to the default Dublin criteria.

Purpose Aimed by the National Court:

The court aimed to resolve a conflict of norms between the obligation to transfer the applicant under the Dublin III Regulation and the obligation to protect his fundamental rights, particularly his right to family life.
By using consistent interpretation and engaging with CJEU jurisprudence, the court sought to ensure that national law was applied in harmony with EU law, fulfilling the principles of primacy of EU law and sincere cooperation under Article 4(3) of the Treaty on European Union (TEU).
The court also aimed to fill a legislative gap regarding the lack of explicit provisions in the Dublin III Regulation addressing situations where an asylum seeker marries a citizen of the Member State during proceedings.

Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)

In this case, there is no significant evidence of horizontal judicial interaction involving the Supreme Administrative Court of Poland referring to or assessing other national judgments or jurisprudence from foreign courts. The case did not directly involve a constitutionality review, nor were any foreign constitutional court rulings cited.

Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)

In terms of vertical judicial interaction patterns, this case involved internal interaction between the Supreme Administrative Court (NSA) and lower national courts as well as external interaction with European courts, specifically the CJEU. The Supreme Administrative Court (NSA) reviewed a judgment from the Warsaw Regional Administrative Court (WSA), which initially upheld the decision by the Council for Refugees regarding the applicant’s transfer under the Dublin III Regulation.

In the NSA's review, the court engaged in a detailed analysis of CJEU case law relevant to the Dublin III Regulation, citing rulings such as C-63/15 Mehrdad Ghezelbash and C-661/17 M.A., S.A., A.Z., to determine the extent to which judicial oversight should be applied in cases involving transfers under the Dublin system. The NSA found that the lower court had failed to properly assess the applicant's personal circumstances, particularly the marriage to a Polish citizen, and whether this could invoke one of the discretionary clauses under Article 17 of Dublin III.

This demonstrates an instance of vertical interaction with the CJEU, as the NSA sought to align its decision-making with European standards and ensure compliance with EU law. Additionally, the NSA referred to Article 7 and 47 of the Charter of Fundamental Rights of the EU, further underscoring its adherence to European legal principles.

No constitutionality review was involved in this case, as the legal reasoning primarily hinged on the interpretation and application of EU law, specifically the Dublin III Regulation and relevant CJEU case law. The case exemplifies vertical judicial dialogue in its effort to ensure consistency between Polish national courts and EU supranational legal standards.

Strategic use of judicial interaction technique (purpose aimed by the national court)

In this case, the Supreme Administrative Court (NSA) employed judicial interaction techniques to address several key objectives:

Resolving a Conflict of Norms: The court needed to address the interplay between Polish administrative law and EU law, specifically the Dublin III Regulation. By referencing CJEU jurisprudence, the NSA aimed to ensure that national norms were interpreted consistently with European legal standards, especially regarding the discretionary clause under Article 17 of Dublin III. This helped align the national legal framework with European law and clarify the conditions under which a transfer could be halted for humanitarian reasons.

Ensuring Fundamental Rights Compliance: The NSA's reference to the EU Charter of Fundamental Rights, particularly Articles 7 (respect for private and family life) and 47 (right to an effective remedy), highlights a strategic use of EU law to ensure the applicant's fundamental rights were considered. This use of the Charter emphasizes the court's intent to protect fundamental rights, potentially filling gaps where national law does not offer sufficient protection.

Judicial Oversight and Procedural Fairness: The CJEU judgments cited by the NSA, such as C-63/15 Mehrdad Ghezelbash and C-661/17 M.A., S.A., A.Z., reinforced the importance of procedural fairness and effective judicial oversight in cases of Dublin III transfers. By invoking these rulings, the NSA strategically sought to align Polish judicial practice with the broader European principles of effective legal remedies and the right to a fair trial, thus strengthening the rule of law.

Clarification of Judicial Interpretation: The NSA used these judicial interaction techniques to clarify the scope of national courts' responsibilities when dealing with Dublin III cases. By examining how CJEU rulings shaped the understanding of discretionary clauses and judicial oversight, the NSA was able to offer a more nuanced interpretation of these provisions in Polish law.

Impact on Legislation / Policy

The decision of the Supreme Administrative Court (NSA) in this case reflects the court's alignment with the CJEU jurisprudence on Dublin III transfers, particularly in terms of ensuring procedural fairness and the protection of fundamental rights. This decision may not directly prompt changes to national legislation but demonstrates how the judicial interpretation of EU law influences Polish administrative and immigration practices.

Notes on the national implementation of the preliminary ruling by the referring court

The Supreme Administrative Court (NSA) in this case achieved an outcome that aligns with CJEU jurisprudence regarding Dublin III transfers. The NSA ensured that the applicant’s right to a fair trial and effective remedy were upheld, particularly in light of Article 47 of the EU Charter of Fundamental Rights. This is consistent with the CJEU's decisions in similar cases, such as C-63/15 Mehrdad Ghezelbash and C-155/15 George Karim, where the court emphasized the importance of national courts considering the applicant's individual circumstances and any new developments after the original decision.

Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?

The court cited:

C-63/15 Mehrdad Ghezelbash v. Staatssecretaris van Veiligheid en Justitie
C-155/15 George Karim v. Migrationsverket
C-360/16 Aziz Hasan v. Bundesrepublik Deutschland

Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?

No, in this particular case, the court did not reference any soft law instruments, such as GRECO Reports, Venice Commission opinions, CEPEJ Reports, or CCJE Reports.

Did the national court take into account national case law on fundamental rights?

Yes, in this case, the court took into account national case law on fundamental rights. The court referred to national constitutional principles, particularly those enshrined in the Polish Constitution, such as the right to family life and procedural rights, especially regarding the right to a fair trial and access to judicial review. However, the decision predominantly focused on interpreting EU law, specifically the Dublin III Regulation, while national case law was referenced to provide a broader context for protecting fundamental rights, including family unity.

If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information

In this case, the preliminary reference procedure (Art. 267 TFEU) was not applied.

Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?

In this case, there was no involvement of the CJEU through the preliminary ruling procedure.

Impact on national case law from the same Member State or other Member States

In this case, there was no indication of an impact on national case law from the same Member State or other Member States directly due to a CJEU decision, as no preliminary reference procedure was involved.

Connected national caselaw / templates

There is no direct connection between this case and other decisions that refer to a CJEU judgment for implementation. The case did not involve a preliminary reference procedure to the CJEU.

(Link to) full text

orzeczenia.nsa.gov.pl

Author

The template was prepared by Marcin Michalak, Assistant Professor at the Faculty of Law, University of Gdańsk, with the support and assistance of the researcher Daniel Zieliński.

Poland, Naczelny Sąd Administracyjny (Supreme Administrative Court), case number II OSK 382/20, appellate instance, 11 January 2022