SAC: automated denial of permission for a partner of a Polish citizen to purchase a real property is discriminatory

The Supreme Administrative Court (SAC) entered a ruling in a case concerning a Chilean man who had been denied consent to purchase a real estate in Poland on the grounds that a same-sex relationship with a Pole solemnised in another country did not prove that the foreigner had connections to Poland.

The SAC reversed the judgment of the 1st instance court and the decisions denying the citizen of Chile who married a Pole in Great Britain such permission. The Court found that same-sex civil partnerships concluded in other countries may be considered a proof that the foreigner had ties to Poland, just like a marriage. Consequently, it should be possible to grant permission to a foreigner to purchase land in the frontier zone on that basis. The HFHR joined the proceedings and presented an amicus curiae opinion in the case.

SAC emphasised that the catalogue of circumstances that might prove the existence of connection to Poland was an open one, and the existence of such ties might be proved not only by a marriage but also by an informal hetero- or homosexual relationship.

“Referring to the Foundation’s standpoint presented during the hearing, the Court stated it explicitly that ignoring actual homosexual relationships as a rule would be discriminatory if certain rights are granted to heterosexual civil partnerships,” says Dr. Dorota Pudzianowska, HFHR’s lawyer.

Let us remind that in January 2014 the Provincial Administrative Court in Warsaw found that the Minister of the Interior and Administration who denied the permission was right to find that the homosexual partner failed to prove any connection to Poland which is required in order to obtain permission to purchase a real estate. The Act on Purchase of Real Estate by Foreigners lists marriage to a citizen of the Republic of Poland as one of the proofs of connection to Poland. A cassation appeal was also filed by the Human Rights Defender.

“The SAC found that prior to re-issuing a decision the authority should have clarified all facts of the case and examine whether or not a connection to Poland was built as the person was in a relationship with a Polish citizen. That means that the authority must not automatically assume that the conclusion of a civil partnership is irrelevant to the case,” explains Dr. Dorota Pudzianowska.

The case was included in the HFHR’s “Article 32” anti-discrimination programme.