Top administrative court dismisses HFHR’s complaint against compulsory return decision issued under anti-terror laws

The case concerned a decision made by the Minister of the Interior and Administration to expel an Algerian national whose wife is Polish. This decision was based on classified evidence that purportedly showed that the man was “a terrorist threat”.

The complaint argued that the denial of access to case files and the sealing of sections of reasons for the return decision effectively deprived the foreign national of any possibility to find out about the grounds for his compulsory return. This situation, the HFHR argues, violates the European Convention on Human Rights and EU law, in particular, Article 47 of the EU Charter of Fundamental Rights and its interpretation expressed in the judgment of the Court of Justice of the European Union in Case C-300/11. In this judgment, the CJEU ruled that case files may be kept confidential in situations involving security considerations, but the person concerned must always be informed of the essence of the grounds which constitute the basis of the decision to treat them as a security threat.

In a verbal summary of the judgment, the Supreme Administrative Court invoked the ECtHR judgment on Regner v. the Czech Republic and stated that the foreign national’s procedural rights had been guaranteed because his case was heard by an administrative court that had access to all materials of the case, including sealed evidence.

The Supreme Administrative Court also dismissed the motion for submitting a reference for a preliminary ruling, in which the CJEU would answer the question whether the provisions of EU law allow for the same restriction as that provided for under Polish law.

“Polish administrative courts have developed uniform jurisprudence in migration cases that involve security considerations. It seems that at present only a judgment of an international court can definitively determine whether national law is in line with the relevant standards stemming from the EU Charter of Fundamental Rights and the European Convention on Human Rights”, says HFHR lawyer Jacek Białas.

Follow this link to read about how the case unfolded.

In September 2018, the HFHR filed a complaint with the European Commission regarding the legislation that allows for the sealing of evidence in proceedings concerning foreign nationals.