The new sentence of the Supreme Administrative Court means bad news for foreigners waiting for a residence permit to be issued. According to the Supreme Administrative court, due to special rules implemented because of war in Ukraine, all deadlines to issue residence permits are suspended for all foreigners and they cannot submit court complaints.
What is the deadline to issue a residence permit and what happens if it is exceeded?
All Polish administrative offices are legally obligated to perform their duties efficiently and without delays.
Because of that, every residence permit case conducted at the Voivodeship Office (Urząd Wojewódzki) has a legal deadline to issue a decision. In case temporary residence permits, this deadline is 60 days (as per article 112a point 1 of ustawa o cudzoziemcach z dnia 12 grudnia 2013 r.).
In case there are delays in resolving the case, foreigners have a right to submit a reminder to the Szef Urzędu do Spraw Cudzoziemców w Warszawie [Head of the Foreigners Office in Warsaw], as per article 37 § 1 of the Code of Administrative Procedure.
If, after submitting the reminder, the Voivodeship Office won’t speed up the process immediately, then it is possible to file a complaint to the Provincial Administrative Court. The court can order the Voivodeship Office to issue decision within a set deadline (usually 14 or 30 days), as well as grant financial compensation for long waiting time.
These rules are similar for almost all administrative proceedings in Poland and the ability to submit a complaint to the court is part of basic rights granted by Polish constitution and EU regulations.
War in Ukraine and deadlines for residence permit proceeding
Due to outbreak of war in Ukraine, on 15th April 2022, Polish government issued new rules regarding residence of Ukrainian citizens in Poland (as part of ustawa o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego państwa z dnia 12 marca 2022 r. [Help for Ukrainian Citizens in Connection with the Armed Conflict on the Territory of their State Act of March 12th 2022].
Based on these new rules, there are no deadlines for Voivodeship Office to resolve a residence permit case. They are still obligated to resolve these cases, but there is no time limit whatsoever to do so. These new rules also disable the right to submit reminders and complaints about their slow case conduct.
The reasoning for them is that a high number of Ukraine citizens could overload Polish Voivodeship Offices with a large number of new cases for a residence permit. For this reason the deadlines for solving them are suspended are suspended.
Does the suspension of a deadline to issue decision relate to all foreigners?
Many Voivodeship Offices published announcements on their websites, stating that all residence permits deadlines are suspended, meaning there is no time limit to solve them and issue decision.
This seems contrary to the meaning and goal of the ustawa o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego państwa z dnia 12 marca 2022 r. [Help for Ukrainian Citizens in Connection with the Armed Conflict on the Territory of their State Act.
As the name suggests, this act should only regulate situation of Ukrainian citizens and their family members, who arrived in Poland because of the war and are seeking shelter here. It shouldn’t refer to all foreigners in Poland as a whole.
The article 1 section 1 of the above act clearly states that:“the Act specifies rules for legalizing the stay of Ukrainian citizens who came to the territory of the Republic of Poland from the territory of Ukraine in connection with military operations conducted in the territory of that state, and Ukrainian citizens holding the Pole’s Card who, together with their immediate family, due to these hostilities arrived on the territory of the Republic of Poland”.
Moreover, pursuant to article 1 section 2 of the act:“whenever the act mentions a citizen of Ukraine, it also means a spouse of a citizen of Ukraine who does not have Ukrainian citizenship, provided that he/she came to the territory of the Republic of Poland from the territory of Ukraine in connection with military operations conducted in the territory of that state and is not a Polish citizen or a citizen of a Member State of the European Union other than the Republic of Poland”.
It has been since stated in many administrative court sentences, that these new rules regarding suspended deadlines only refer to Ukrainian citizens (not to all foreigners!) and only those of them who came to Poland because of the war (after February 27th 2022).
Supreme Administrative Court – bad news for foreigners waiting for a residence permit.
However it all changed with the recent Supreme Administrative Court sentence that included a different interpretation of these rules.
In the Supreme Administrative Court’s opinion, the suspended deadlines to issue a residence permit refers to all foreigners and they cannot submit complaints for delay.
The Supreme Administrative Court stated, that: “It is not possible to agree (…) that article 100c of the Act on Assistance applies only to foreigners who are citizens of Ukraine leaving the territory of this country due to war. Such an interpretation does not result from either the wording or the purpose of the above-mentioned provision. Firstly, this provision refers to a “foreigner”, not a “citizen of Ukraine”. Lege non distinguente, this provision applies to every foreigner, i.e. a person who does not have Polish citizenship (see Article 3 point 2 of the Act on Civil Rights). Secondly, it is necessary to point out the wide scope of matters covered by this provision (Article 100c(1) of the Aid Act). A significant number of these cases cannot have any connection with the assistance provided to Ukrainian citizens in connection with the war (e.g. permanent residence permits, not to mention proceedings regarding the withdrawal of existing permits). Thirdly, Art. 100c introduces a number of solutions that significantly limit the rights of foreigners, including their right to settle the matter within a reasonable time. It is difficult to find a rational justification for the thesis that the Act on Assistance to Ukrainian Citizens also introduces solutions that worsen the legal situation only of this group of foreigners.” (Supreme Administrative Court sentence, case number II OSK 2059/22).
This new Supreme Administrative Court sentence contradicts many of previously issued sentences of the Voivodeship Administrative Courts, who’s interpretation was that rules suspending deadlines and preventing submission of complaints referred only the Ukrainian citizens who came to Poland because of war – not all foreigners.
The Supreme Administrative Court is a court higher then the Voivodeship Administrative Courts. It controls the sentences issued by the administrative courts and can overturn them if they are appealed. For this reason, interpretations issued by the Supreme Administrative Court are generally respected by the administrative courts simply for the fact that in case they issue a sentence contradictory to them, it may be overturned by the Supreme Administrative Court.
That being said, if the delay in a residence permit proceeding occurred after 15th April 2022 (before the new rules were implemented), then submitting a court complaint for delay in a residence permit case bears a high risk of being dismissed.
However, if the delay in a residence permit proceeding occurred after 15th April 2022, then the complaint should be accepted by the administrative court.
So what can be done in case of delays?
As mentioned above, if the delay in a residence permit proceeding occurred before 15th April 2022, then you can submit a complaint and have the court order the Voivodeship Office to speed up the process and issue your residence permit.
The reminder to the Szef Urzędu do Spraw Cudzoziemców and the complaint to the administrative court are the main tools that foreigners could utilize to speed up the process.
The residence permit proceeding should take no more then 2 months. If it takes longer then that, you have the right to make legal complaint to speed up your process and possibly get a compensation.
You can learn more about this in one of our older articles: https://kancelariakamler.pl/en/still-waiting-for-a-residence-card-you-can-speed-up-your-case-and-get-financial-compensation-for-the-slow-case-conduct/
If the delay in a residence permit proceeding occurred after 15th April 2022, then the complaint is risky. You can instead try sending requests to the inspector responsible for the case to take action.
Would you like to know more? Do you need assistance in applying for a residence permit in Poland?