Mutual trust

Asylum

Naczelny Sąd Administracyjny

Supreme Administrative Court

II OSK 991/23

07.11.2023

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protection of foreigners, including granting of refugee status, asylum, discretionary clause

Under the Dublin III Regulation, a foreign national has no control over which member state assumes responsibility for their asylum claim. The case highlights the discretionary clauses under Article 17 of the Dublin III Regulation, which allow a state to take charge of an asylum application on humanitarian or political grounds. The legal challenge here was the question, if the discretionary power was fairly and appropriately exercised, particularly regarding the applicant's family situation.

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Article 37(1) of the Act of June 13, 2003 on granting protection to foreigners within the territory of the Republic of Poland, Journal of Laws. 2021 no. 1108

Minor named I.M., a Russian citizen of Chechen nationality, applied for international protection in Poland on August 4, 2021, through a court-appointed legal guardian. The guardian also submitted similar applications on behalf of six siblings. The minor's father, S.M., had previously applied for asylum in Poland on July 14, 2021, for himself, his wife, Z.A., and their children.
Due to the family’s prior asylum applications in Germany, Polish authorities requested that Germany take responsibility for the family’s asylum claims under the Dublin III Regulation. On August 19, 2021, German authorities agreed to take the family back, leading Polish authorities to issue a decision on August 25, 2021, to transfer the family to Germany and discontinue their Polish asylum applications.
The decision was upheld by the Refugee Board (Rada do Spraw Uchodźców) on November 5, 2021, confirming that Germany was responsible for processing their asylum claims. The Board found no legal basis to apply discretionary clauses under Article 17(1) of Dublin III, despite the family’s claims about the loss of parental rights in Germany. The Board concluded that the best interests of the children would be served by reunification in Germany, where the legal situation regarding their custody could be addressed. A minor foreigner, represented by a court-appointed guardian, filed a complaint with the Regional Administrative Court in Warsaw, which on November 15, 2022, rejected the complaint against the Refugee Board's decision from November 5, 2021, concerning the transfer of the foreigner to another EU country and the dismissal of the request for international protection in Poland. The claimant, through the guardian, filed a cassation appeal, which the Supreme Administrative Court dismissed.

The Dublin procedure is a two-step process that ends with a decision to discontinue the application for international protection and transfer the applicant to the responsible member state. The foreign national has no influence over the decisions made by member states. Any objections to the transfer under the Dublin III Regulation can only be raised in later stages. Judicial oversight goes beyond confirming whether another state has agreed to take responsibility for the asylum application, requiring evaluation of whether the correct criteria were applied. In this case, there are no grounds to claim that the German asylum system involves inhumane treatment, which would prevent the transfer. Additionally, the German family and asylum law systems are distinct, and issues in the former do not affect the Dublin transfer process. The court emphasized that the Dublin III Regulation includes discretionary clauses: sovereignty and humanitarian (Art. 17), as well as dependency criteria (Art. 16). This allows the Dublin mechanism to be applied flexibly, respecting fundamental human rights. Article 17(1) enables member states to make sovereign decisions, for political, humanitarian, or practical reasons, to handle an asylum application even if they aren't responsible under the regulation's usual criteria. The Dublin III Regulation prioritizes the best interests of the child (Art. 6). In this case, the welfare of the child was central to the decision to transfer the applicant to Germany, a view shared by the lower court and upheld by the Supreme Administrative Court. The Polish courts recognized and enforced German rulings that temporarily removed parental rights, as required under EU law (Council Regulation 2201/2003). Challenges to these German family court rulings fall outside the scope of Polish administrative proceedings. The assignment of a guardian and placement in foster care reflected compliance with these rulings. In the opinion of the Court there are no grounds for considering the applicant in the present case to be an “unaccompanied minor” for applying the criteria for determining the responsible Member State contained in Article 8 of the Dublin III Regulation. The Supreme Administrative Court stressed, that despite the German court's decision to temporarily deprive the parents of custody of their children, including the complainant, the actual custody of the children in Poland is de facto still exercised by the parents. The court further held that: "the order of the German court rules on the discontinuance of the legal proceedings concerning the decision of the Federal Office for Migration and Refugees and cannot be treated as having the effect of declaring the contested decision to deny international protection in this country to the party's father and the entire family to be null and void. Therefore, the circumstance of the discontinuance of the court proceedings in the cited case in no way affects the validity and correctness of the designation of the German party as competent - pursuant to Article 18(1)(d) of the Dublin III Regulation". Referring to the judgment of the Supreme Administrative Court and of the CJEU, the court pointed out that for the judicial review of a decision the facts existing at the time of issuing a judgment on the decision are determinative. According to the Supreme Administrative Court: “the actual situation of the family - undoubtedly complicated in connection with the German court's decision to temporarily deprive the parents of parental authority, as well as the negative opinion of the applicant and the entire family to what the state system in the Federal Republic of Germany (schools, Jugendamt, courts) functions, and the expectations of the possibility of continuing to live in Poland do not exhaust the criterion of ‘humanitarian reasons’, which could be taken into account as a circumstance justifying the application of the discretionary clause (Article 17(1) of the Dublin III Regulation). It should be recalled, as aptly emphasized in the contested decision, that persons seeking protection on the territory of the European Union are not entitled to choose and arbitrarily change the country in which their case will be processed". Issuing the decision, the court was also concerned with the principle of taking into account family unity.

The Charter wasn't invoked.

ECHR was not cited. Court cited the acts that regulate children rights - the Convention on the Rights of the Child and the Declaration of the Rights of the Child or the Convention on the Protection of Human Rights and Fundamental Freedoms. This follows from the complainant's allegations. Thus, it had an ornamental character.

mutual recognition

Referring to the judgments of the Supreme Administrative Court: of June 22, 2021, II OSK 2114/20; of January 11, 2022, II OSK 1170/21 and of March 1, 2023, II OSK 2565/21 - concerning the scope of the administrative court's review of the legality of the decision issued in the Dublin procedure.

Referring to the CJEU case law.

Interpretation of terms not defined by the legislative body.

No impact.

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