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Poland / Supreme Administrative Court / II OSK 1346/16

S.E. v. Consul of Poland in R.

Policy area:
Asylum and migration
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Decision date:

Key facts of the case:

The applicant  submitted a motion for a Schengen visa in order to visit his wife and son who were Polish nationals. That application was refused by the consul. Mr El Hassani submitted a request for review to the same consul who, again refused to grant visa. The applicant appealed against that decision before the Regional Administrative Court, but the court dismissed the appeal, holding that actions brought against a decision to refuse a Schengen visa by the consul does not fall within the jurisdiction of the administrative court. The Supreme Administrative Court referred the request to the CJEU for a preliminary ruling arguing that lack of jurisdiction of the administrative courts may infringe  e.g. Article 47 of the Charter. CJEU issued a ruling in December 2017 stating that the Community Code on Visas and Article 47 of Charter “requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal”. On 19 February 2018 the Supreme Administrative Court overruled the decision of Regional Administrative Court and referred the case to the Regional Administrative Court to rule it within regard to the merits. The Court stated that according to the CJEU ruling administrative courts’ procedure is incompatible with Article 32 (3) of Code on Visas in conjunction with Article 47 para. 1 of the Charter. According to the Supreme Administrative Court, there was no ground for the Regional Administrative Court to dismiss this case without review of merits.

Key legal question raised by the Court:

What is the scope of administrative courts’ jurisdiction in the light of Community Visa Code and Article 47 of the Charter?

Outcome of the case:

The Regional Administrative Court ruled the case in Septemeber 2018 and quashed the decision of consul. The case is still pending.