Published on 29 March 2021

FIRST SECTION

Application no. 53371/18 Adin ÅžENER against Poland lodged on 9 November 2018 communicated on 9 March 2021

STATEMENT OF FACTS

The applicant, Mr Adin Åžener, is a Turkish national, who was born in 1971 and lives in Ä°stanbul. He is represented before the Court by Mr M. Pietrzak and Ms M.J. Radziejowska, lawyers practising in Warsaw.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant entered Poland in 1989. Since 1995 he has been in a relationship with K., a Polish national. Their daughter D. was born in 2001 and they married in 2008.

The applicant was running a small business and resided in Poland on the basis of short-term residence permits which had been repeatedly renewed.

On 10 August 2015 the Mazowiecki Governor refused to grant the applicant a permanent residence permit on the ground that he had constituted a threat to national security and public order. The Governor noted that the applicant had committed tax related criminal offences in the past for which he had been convicted. Even though his conviction was spent, there was no basis to believe that in future he would respect the Polish legal order.

This decision was upheld by the Head of the Foreigners ’ Office on 15 March 2016.

On 12 July 2016, on his way back to Poland from a holiday in Turkey, the applicant was stopped at the Turkish-Bulgarian border and refused entry to the Schengen area. The Bulgarian authorities informed him that his name was registered in the Register of Foreigners whose Residence in Poland is Undesirab le (“ Wykaz cudzoziemców, których pobyt na terytorium Polski jest niepożądany ” – “Register of Undesirable Foreigners”).

On 15 and 18 July 2016 the applicant ’ s lawyer requested the Head of the Foreigners ’ Office for information relating to the grounds for entering the applicant ’ s data in the Register of Undesirable Foreigners and in the Schengen Information System (“SIS”), and for permission to access the applicant ’ s file.

On 4 August 2016 the Head of the Foreigners ’ Office dismissed the requests. It was noted that the applicant ’ s name had been entered in both databases for the reasons of national security and public order as provided by section 435 (1) 4 of the 2013 Alien ’ s Act. Thus, it was not possible to provide the factual background of the decisions and to give him an opportunity to review the evidence gathered in his file (section 444 (2) of the 2013 Alien ’ s Act).

On 8 September 2016 the applicant asked the Head of the Foreigners ’ Office to delete his data from both registers and issue a certificate that his name did not figure in both databases. In particular, he relied on Article 8 of the Convention.

On 6 October 2016 the Head of the Foreigners ’ Office refused his request on the ground that the applicant ’ s entry and stay in Poland endangered national security. In so far as the applicant invoked Article 8 of the Convention, the exclusion order was necessary in a democratic society and proportionate.

On 18 October 2016 the applicant lodged an application for reconsideration of the case. Again, he relied on Article 8 of the Convention, stressing that his inclusion in the registers had been ordered pursuant to a legal regime which did not provide the necessary safeguards against arbitrariness.

On 27 March 2017 the Head of the Foreigners ’ Office upheld the first ‑ instance decision. There were no reasons to remove the applicant from the registers given that his entry and stay in Poland endangered national security.

On 6 September 2017 the Warsaw Regional Administrative Court dismissed the applicant ’ s further appeal. The court noted that the information which had been the basis for the decision to include the applicant in the register was secret. The court had examined that information and held that it constituted a reasonable ground for declaring the applicant an undesirable person.

The proceedings were terminated by the judgment of the Supreme Administrative Court of 26 March 2018. The court dismissed the applicant ’ s cassation appeal, repeating the reasons given by the administrative authorities and the Regional Administrative Court. The judgment was served on 11 May 2018.

Under section 444 of the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – “the 2013 Act ”) , a foreigner whose data was placed in the register of undesirable foreigners or the Schengen Information System may apply to the Head of the Foreigner ’ s Office to have his name removed. The Head refuses to provide information about the factual grounds for inclusion in the registers if they concern the circumstances indicated in section 435 (1) 4 relating to national security, defence and protection of public order.

COMPLAINTS

The applicant complains under Article 8 of the Convention that as a result of including him in the Register of Undesirable Foreigners and SIS he could not contin ue residing in Poland and was unable to exercise family life with his wife and daughter.

He further complains under Articles 6, 13 of the Convention and Article 1 of Protocol No. 7 to the Convention about the procedural shortcomings in the domestic proceedings, and, in particular, that he was not given the opportunity to have knowledge of and to comment on any evidence in his file.

QUESTIONS TO THE PARTIES

1. Did the decision to include the applicant in the Register of Foreigners whose Residence in Poland is undesirable and the Schengen Information System and, consequently, to expel the applicant – an alien who was lawfully resident in the territory of the respondent State – comply with the procedural requirements of Article 1 of Protocol No. 7 to the Convention?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 7 to the Convention, as required by Article 13 of the Convention (see, for example, Ljatifi v. the former Yugoslav Republic of Macedonia , no. 19017/16, §§ 43-45, 17 May 2018 and Muhammad and Muhammad v. Romania [GC], no. 80982/12, §§ 133-157, 15 October)?

3. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?