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Key facts of the case:

The Plaintiff, a citizen of Ukraine, applied for a long-term student visa. The Ministry of the Interior (Ministerstvo vnitra) did not grant him a visa and the Defendant upheld the decision. The Plaintiff challenged the Defendant’s decision before the Municipal Court in Prague (Městský soud v Praze). The Municipal Court dismissed the case (refusing to deal with the lawsuit on itsmerits) and argued that the decision not to grant a visa cannot be reviewed within the frame of administrative justice according to § 171 letter a) of the Act on the Residence of Foreign Nationals.[1] Since a foreign national has no ‘right to reside in the CR’ or ‘right to be granted a visa’, the decision not to grant a visa does not represent a breach of the foreign national’s rights. The Supreme Administrative Court did not agree with the conclusions of the lower court. While a foreign national does not have the right to be granted a visa, he/she has the right to apply for a visa according to Article 18, paragraph 4 of EU Directive 2004/114/ES. The right to a fair trial is granted by Article 47 of the Charter, which has a direct effect. Therefore, it must be possible to challenge the decision not to grant a visa before a court. Therefore, § 171, letter a) of the Act on the Residence of Foreign Nationals is in conflict with the Charter and not applicable. The Supreme Administrative Court cancelled the decision of the Municipal Court and instructed  it to issue a new decision respecting the legal opinion of the Supreme Administrative Court. 


[1] Czech Republic, Act No. 326/1999 Coll. on the Residence of Foreign Nationals in the Czech Republic.

 

Key legal question raised by the Court:

Can a foreign national challenge the decision not to be granted a visa before a court or not? Does such a decision represent a breach of his/her rights?

Outcome of the case:

The decision not to grant a visa is challengeable in front of a court.