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Judgment of the Regional Administrative Court in Foreign Children Case

The Regional Administrative Court in Warsaw has recently issued a judgment in the case of three foreign children that is significant from the perspective of prior case-law.  Whereas both the court of first resort and the court of second resort had issued negative rulings in the case, the Regional Administrative Court repealed the rulings, and directed the case for further review.  In the line of reasoning of the Court: “In the scope of this case, the actual state of affairs, which indicates that the three minor children whom the challenged ruling concerns were born within Polish territory, is indisputable.  The children have been raised here, and they attend school and function in Polish society and their community of peers as Poles – they communicate exclusively in Polish, and possess very poor knowledge of their mother tongue.  An explanation and consideration whether the rights of the child described in detail in Articles 8 and 28 of the Convention [on the Rights of the Child] shall not be violated to a degree endangering the psychophysical development of the children in question is indispensable in the present situation.  The plaintiff had cited such a threat to the rights of the children within a motion filed as early as November 9, 2009.  In it he indicated that the children’s departure to their country of origin would be an immense shock to them, and would cause irreversible effects, and would ruin the children’s entire prior life-experience, as, in their country of origin, they would be immersed in an environment culturally foreign to them in every respect; in addition, having a very poor command of their mother tongue, limited to verbal communication, they would not be able to undertake an education at a level appropriate to their ages or interact with their peers.  All of the above circumstances would result in their isolation.

“According to the text of Article 8 of the Convention on the Rights of the Child, “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”  It is suitable to agree with the viewpoint contained in the complaint, where it is stated that the components of identity enumerated in the provision are exemplary in nature; besides them, the identity of a child is also shaped by his/her language, culture, and other elements that comprise a child’s sense of self-identity.

“Article 28 of the Convention, in turn, guarantees children the right to an education.  The Court does not question the viewpoint contained in the judgment of the Regional Administrative Court [sic], (…) that the enrollment of the children in a Polish school and their growing up within Polish culture and a Polish environment cannot be understood as an argument for the necessity of the legalization, on those grounds, of the parents’ residence by Polish authorities, or that neither the Convention for the Protection of Human Rights nor the Convention on the Rights of the Child guarantee the free choice of a country of residence.  An invocation of this viewpoint, however, cannot act as a substitute for an explanation and consideration by the adjudicating authority whether, in the event of deportation, a violation of the rights of the child to a degree endangering their psychophysical development will take place. (…) The above would determine whether the adjudicating authority had committed a violation of Articles 7 and 77 of the First Section of the Administrative Procedure Code, which, in the wording in force as of the date of issuance of the challenged ruling, obliged  the public administration agency to undertake all measures necessary to thoroughly elucidate the actual state of affairs and resolve the case, as well as to assemble and consider the entire body of evidence in a comprehensive manner.  (…) The responsibility of the agency over the course of the renewed consideration of the case shall therefore be to voice its opinion on the above-mentioned issues; i.e. to clarify whether, and to what extent, the identity of the minors has been shape by their life, since birth, in Poland and in Polish society, and whether the children’s limited knowledge of their mother tongue shall endanger their welfare, understood as balanced psychophysical growth, as well as the question of whether the potential deportation of the children to their country of origin would permit them to fulfill their right to an education.  (…) Only the conduction of an assessment on the above range of issues will be fundamentally significant in providing an answer to questions on the admissibility of the deportation of the remaining members of the family– in particular, of the plaintiff (who is the children’s father)– taking into consideration the right to respect for family life stipulated in Article 8 of the Convention for the Protection of Human Rights.”

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