SAC: legalisation of stay necessary, based on right to family life

The Supreme Administrative Court (SAC) admitted the complaint of an Armenian citizen who appealed against a judgment of the Provincial Administrative Court in Warsaw. In the appealed ruling, the first-instance court upheld a decision of the Head of the Office for Foreigners to refuse the complainant a tolerated residence permit.

The complainant came to Poland in the 1990s as a child, crossing the border on his mother’s passport. Later on, he started a family in Poland. At first, Polish authorities have been repeatedly granting him fixed-term residence permits despite the fact he did not have a passport. However, his last application for temporary residence has been refused on this very ground.

The Mazovia Province Governor and the Office for Foreigners have also refused him a “tolerated stay permit”, claiming that as the spouse of a Polish citizen, he should apply for a fixed-term residence permit instead. In order to do this, he needed to obtain a passport back in his country of origin, which meant that he would have to go to Armenia and complete mandatory military service there. The administrative bodies’ arguments had been accepted by the Provincial Administrative Court in Warsaw, but its ruling was ultimately reversed by the Supreme Administrative Court.

The statement of reasons for the latter’s decision read that a foreigner requires a fixed-term residence permit to be able to exercise their right to family life as such a permit allows them not only to stay in Poland legally but also to work to support themselves and their family.

“Accordingly, if a foreigner is in any way prevented from obtaining a fixed-term residence permit in a situation similar to that of the complainant, this means that their right to family life within the meaning of Article 8 of the Convention for the Protection of Human Rights has been interfered with”, says Jacek Białas, HFHR’s lawyer.

The SAC also held that the administrative bodies should have treated the foreigner’s situation as an extraordinary case and grant him a fixed-term residence permit even in the absence of a passport.

“This ruling is significant because it reinforces the SAC case law according to which a foreigner’s right to family life will be ensured not only when they cannot be expelled from Poland but above all if they are allowed to legalise their stay by obtaining a fixed-term residence permit, a measure clearly more advantageous than a tolerated stay permit”, explains Mr Białas.

The Helsinki Foundation for Human Rights, acting through its Legal Assistance Programme for Refugees and Migrants, has joined the case and provided legal aid for the foreigner.