Polish Border Guards refused entry for the gay partner of a Polish national

A Filipino national, a legal partner of a Pole under the UK law, has been refused entry to Poland by border officers. The Border Guard’s decision has been appealed against before the Provincial Administrative Court in Warsaw, which is expected to make a ruling.

In November 2011, X.Y., a Filipino national travelling with his Polish partner, was refused entry to Poland by a Border Guard officer. He was told he was not allowed to enter Poland because the country did not recognise homosexual partnerships.

According to Polish domestic regulations and the EU Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the right of entry may be exercised by the partner with whom the Union citizen has contracted a registered partnership on the basis of the legislation of a Member State, provided that the legislation of the host Member State treats registered partnerships as equivalent to marriage.

Since Polish law does not recognise civil partnerships, the Directive provides no basis for a person’s entry to Poland. However, border authorities failed to apply another provision of this Directive, which provides that the host Member State should facilitate entry and residence for partner with whom the Union citizen has a “duly attested”, durable relationship.

“In our complaint to the PAC we argue that the decision issuing body failed to thoroughly review the personal circumstances of X.Y.”, says Marcin Górski, the advocate conducting the case at the request of the HFHR.

According to the HFHR, the Directive’s provision that facilitates entry and residence for partner with whom the Union citizen has a duly attested, durable relationship cannot be construed merely as a suggestion. Rather, it officially obliges the host Member State to adopt measures necessary to facilitate registered partners recognised by the laws of other states to enter and reside in the host state’s territory. The persons concerned should be given opportunity to obtain the right of entry and residence upon an extensive examination of their application, including their personal circumstances. If their application is refused, they have the right to receive an appropriately justified decision.

“A refusal of entry should be considered an exception to the rule of facilitating entry and residence of people remaining in registered partnerships recognised in other countries and thus appropriately substantiated”, says Dr. Dorota Pudzianowska. “In the case of Mr X.Y., the decision was made immediately and he wasn’t given a chance to offer explanations and expressly state the arguments he considered important. The issuing body only indicated that Poland does not recognise civil partnerships”, adds Dr. Pudzianowska.

The case is handled under the HFHR Article 32 anti-discrimination programme. At the request of the Foundation, Dr. Marcin Górski represents X.Y. in court.