Published on 3 July 2023

FIRST SECTION

Application no. 83493/17 I.M. against Poland lodged on 19 December 2017 communicated on 13 June 2023

STATEMENT OF FACTS

The applicant, Mr I.M., is a Russian national of Chechen origin, who was born in 1978 and is currently detained in a Centre for Foreigners in Ł. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms S. Paduchowska, a lawyer practising in Lublin.

The circumstances of the case

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

The applicant is a Russian national of Chechen origin. He arrived in Poland for the first time in 2012 and was refused international protection twice. His second request for international protection was not examined on the merits because the applicant had failed to present any new evidence.

On 11 December 2014 the applicant’s forced expulsion was carried out on a Warsaw-Moscow charter flight.

On 21 September 2015 he re-entered the territory of Poland through the border crossing in Terespol.

On the same day he again requested international protection in Poland together with his family – his wife and, at that time, their two children.

Subsequently, the applicant’s third child was born in Poland. That child was ex officio included in the applicant’s request for international protection.

On 21 March 2017 the Head of the Office for Foreigners, considering that the applicant had presented new evidence, heard him and issued a preliminary decision ( postanowienie ) in which it held the applicant’s request admissible.

On the same day the Head of the Office for Foreigners issued a decision on the merits and refused to grant the applicant international protection and complementary protection ( ochrona uzupełniająca ). That decision applied also to the applicant’s family, that is his wife and three children.

The applicant appealed. It appears that the question of lack of suspensive effect or the issue of a preliminary decision finding the applicant’s request admissible were not raised in the applicant’s appeal.

On 6 February 2019 the Refugee Council, having heard the applicant, upheld the challenged decision. The Council found that the applicant’s statements had not been consistent and credible. The applicant complained to the administrative courts.

On 28 June 2019 the Warsaw Regional Administrative Court dismissed his complaint.

On 17 November 2020 the Supreme Administrative Court quashed the decision of the Refugee Council of 6 February 2019, and the judgment of the Warsaw Regional Administrative Court of 28 June 2019, and remitted the case to the Refugee Council. The Supreme Administrative Court held that the Refugee Council had failed to hear witnesses requested by the applicant or to explain why those witnesses had not been heard.

The proceedings for international protection are pending before the Refugee Council.

On 8 August 2017 the Head of the Szczecin Border Guard issued a decision obliging the applicant to leave Poland and banning him from Polish territory and other Schengen countries for 3 years (decision MO ‑ SZ/184D ‑ ZDP/2017). The authority found, among other things, that the applicant had illegally tried to cross the border and enter Germany. The applicant appealed.

On 18 October 2017 the Head of the Office for Foreigners issued a decision ( postanowienie ) in which it held that the applicant’s appeal had been lodged too late.

On 30 October 2017 the applicant lodged a request for leave to appeal out of time and a request to stay the execution of the decision of 8 August 2017.

On 16 November 2018 the Head of the Office for Foreigners refused the applicant’s requests.

The applicant lodged a complaint with the Warsaw Regional Administrative Court.

On 27 August 2019 the court dismissed the applicant’s complaint.

On 28 April 2020 the Supreme Administrative Court dismissed the applicant’s cassation appeal holding that, indeed, the applicant’s appeal against his expulsion order had been lodged one day too late and that that delay could not be justified.

Consequently, the decision of 8 August 2017 is final.

On 19 December 2017 the applicant lodged a request with the Court under Rule 39 of the Rules of the Court to have his expulsion stayed.

On the same day, the Court (the duty judge) decided to indicate to the Government of Poland, under Rule 39, that the applicant should not be expelled for the duration of the proceedings before the domestic authorities (final court decision) concerning his application to be granted refugee status or supplementary protection, including his application for leave to appeal out of time against the decision of 8 August 2017, issued by the Head of the Szczecin Border Guard.

On 29 December 2022 the Government of Poland, replying to the Court’s questions, submitted that, in principle, pursuant to section 330 (1) 1 of the Aliens Act, a decision obliging a foreigner to return is not enforced if proceedings to grant the foreigner international protection are pending. However, according to section 330 (2) 2b of the Aliens Act, point (1) 1 is not applicable if the foreigner has submitted another application for international protection after the final decision on refusal to grant refugee status or supplementary protection, or a decision to discontinue proceedings for international protection issued after examination of another application for international protection.

The Government considered that, in view of the wording of section 330 (2) 2b, the applicant was not protected by the principle stated in section 330 (1) 1. They further submitted that the applicant has not been expelled, in view of the interim measure granted by the Court under Rule 39 of the Rules of Court on 12 December 2017.

RELEVANT LEGAL FRAMEWORK

Section 330 of the Aliens Act of 12 December 2013 reads, in so far as relevant, as follows:

“1. Decision obliging a foreigner to return shall not be executed when:

1) proceedings for international protection in relation to that foreigner are pending, or

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2. The provision 1 (1) is not applicable if a foreigner has submitted another request for international protection which:

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2) has been lodged after the issuance of a final decision:

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b) refusing to grant refugee status or supplementary protection or a decision to discontinue proceedings for international protection issued after examination of another application for international protection.”

COMPLAINTS

Relying on Article 3, in conjunction with Article 13, the applicant complains that the decision of 8 August 2017 ordering him to leave the territory of Poland is enforceable and he can be expelled at any time; the pending proceedings for international protection do not have a suspensive effect even though (1) his most recent request for international protection was found admissible (2) it was examined on the merits in view of new evidence presented by him and (3) the Supreme Administrative Court remitted the case to the Refugee Council.

He further complains under the same Convention provisions that in his procedural situation the principle stated in section 330 (1) 1 of the Aliens Act (suspensive effect of pending proceedings for international protection) was not applicable to him.

QUESTIONS TO THE PARTIES

1. Is Article 13 of the Convention, in conjunction with Article 3, applicable to the applicant’s case? More specifically, was the applicant at any point in time threatened by expulsion to his home country and did he have an arguable claim that he would face ill-treatment in Russia (see Auad v. Bulgaria , no. 46390/10, § 106, 11 October 2011 and A.D. and Others v. Turkey , no. 22681/09, §§ 85-94, 22 July 2014)?

2. In the affirmative, did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 as required by Article 13 of the Convention ( M.K. and Others v. Poland , nos. 40503/17 and 2 others, § 220, 23 July 2020; A.D. and Others v. Turkey , no. 22681/09, 22 July 2014; Auad v. Bulgaria , no. 46390/10, 11 October 2011; and Gebremedhin [Gaberamadhien] v. France , no. 25389/05, ECHR 2007‑II)? Reference is made to the fact that the decision of 8 August 2017 obliging the applicant to leave the territory of Poland is enforceable, even though the proceedings for international protection in which the applicant’s request was found admissible are pending before the Refugee Council. Would an appeal against the decision of 8 August 2017, if lodged in time, stop his expulsion to Russia?