The topic of today's article was born, as it were, naturally from my recent professional experience and the problems you come to me with. More specifically, it is about lengthiness of proceedings. It is well known that the dynamic development of large Polish cities - including Wrocław, where I have the pleasure of living and practising as a legal adviser - is associated with a high demand for employees from various industries. This, in turn, means that when there is a shortage of labour, employers decide to employ foreigners. Among others, citizens from countries outside the European Union. In Poland, the majority of such persons are citizens of Ukraine. The employment of a foreigner is linked to the fulfilment of a number of conditions. In particular, a residence permit and a work permit must be obtained.
Are they difficult to obtain? The practice of recent months shows that it is. The reason, of course, is the very long queues and the huge number of people referring applications to the governor. In today's article you will find out, what to do when an administrative authority fails to fulfil its duty and protracted proceedings prevent you from realising your plans.
Read also: PESEL for a foreigner in Poland
Read also: Working in Germany - new opportunities for non-EU nationals from 2020.
Principle of speed and length of proceedings
The principles guiding public administration bodies in the handling of our cases are primarily regulated by the Code of Administrative Procedure. (Hereinafter: k.p.a. or the Code). According to it:
"public authorities should act thoroughly and expeditiously on a case, using the simplest means possible to resolve it".
In addition:
"a case requiring an investigation should be settled within one month at the latest. A particularly complicated case - not later than two months from the date of initiation of the proceedings, and in appeal proceedings - within one month from the date of receipt of the appeal.."
With this in mind, the principle should be that the authority takes action as soon as possible. Failure to deal with the case in time (also referred to as the authority's silence) is illegal. Unfortunately, it is a rule in matters of permits for foreigners that proceedings drag on for months. Even though there are no legal grounds for this. The reason, however, is that inspectors are overloaded with cases. According to the report of the Supreme Chamber of Control, there are currently on average 1,300 foreigners' cases per inspector in Voivodeship Offices.
According to the case law of the courts, protracted conduct of proceedings does not only occur when the authority does not take any action. It also occurs when it takes ineffective actions which:
- do not aim to gather the necessary evidence or
- do not clarify the relevant circumstances and do not bring the proceedings to a conclusion.
Furthermore, such a situation occurs when there are unjustified periods of interruption between the various actions. And, in addition, which on balance lead to a significant and unacceptable, from the point of view of procedural economy, lengthening of the proceedings.
Whether the authority fails to act or acts ineffectively, the result is a delay in issuing the necessary documents. What can be done in such a situation? I hasten to explain.
Lengthy proceedings - Letter of formal notice
If the aforementioned deadlines have passed, the first step is to address a so-called 'reminder' to the body superior to the voivode. Pursuant to Article 17 of the Code of Administrative Proceedings, the authorities of higher rank, as defined in the Code, are - with respect to voivodes - the ministers responsible for the case. And in matters regulated by the Act on Foreigners - the Head of the Office for Foreigners.
The reminder itself shall be submitted via the authority which commits the inaction or procrastination. In the present case, this will be the competent voivode. The post-reminder shall be justified. However, the regulations do not indicate any specific requirements as to the justification itself. Therefore, it should be acknowledged that it may have any content and may boil down, for example, to indicating that in the opinion of the party filing the complaint, the authority examines the case too slowly. The authority should immediately, within no longer than seven days, forward the reminder to a higher level authority and respond to it. The authority examining the reminder is obliged to settle the case within 7 days.
It should be emphasised that the filing of a post-reminder is necessary if you intend to seek further legal protection before an administrative court. This is because pursuant to Article 53 § 2b of the Act on Proceedings before Administrative Courts (hereinafter: PPSA), a complaint against inaction may be filed at any time after a previous filing of a reminder. Failure to file a reminder will block your path to further assert your rights before the court. If the authority examining the letter of reminder finds that the proceedings are protracted, it shall oblige the authority examining the case to resolve the matter and set a deadline for the resolution of the case if the proceedings are not yet completed. In addition, the authority shall order that the causes be explained and those responsible for the inaction or the lengthiness be identified and, if necessary, that measures be taken to prevent future inaction or lengthiness.
Action before the administrative court
If the reminder does not have the desired effect, the only thing that remains is to file a complaint with the relevant administrative court. The court of first instance in this case is the relevant Provincial Administrative Court, hereinafter referred to as the WSA.
As already mentioned above, the prior filing of a reminder is a prerequisite for using the court route. The complaint must therefore be accompanied by proof of the filing of a reminder of failure to deal with the case in time. If this condition is not fulfilled, the WSA will request the complainant to supplement the formal deficiencies of the complaint by sending such proof. Completion of the complaint should take place within seven days of receipt of the summons. Otherwise, the court will consider that a reminder was not filed. The absence of a reminder will instead result in the rejection of the complaint by the court.
The complaint to the WSA should be filed through the authority whose protracted conduct of the proceedings is the subject of the complaint. In our case it will obviously be the competent voivode. The provincial governor shall forward the complaint to the WSA, together with complete and orderly case files and the response to the complaint, within thirty days of its receipt.
It is worth pointing out that this is the last moment for the organ- voivode to make a reflection and rectify the hitherto unlawful conduct. This is because the provincial governor whose protracted conduct of proceedings has been complained of may, within the scope of his/her jurisdiction, uphold the complaint in its entirety within thirty days from the date of its receipt.
If our case eventually reaches the WSA, the administrative court will, in accordance with Article 149 of the PPSA, take into account the complaint about the protracted conduct of the proceedings by the governor:
- obliges the governor to issue an act, an interpretation or to perform an action within a certain time limit;
- obliges the governor to declare or recognise an entitlement or obligation under the law;
- finds that the governor has committed inaction or protracted conduct of the proceedings.
Sum of money
In addition, the court may decide ex officio or at the request of a party to impose a fine on the authority or to award a specific sum of money to the applicant. The sum that the court may award in favour of the applicant is half of the amount constituting ten times the average monthly remuneration in the national economy in the previous year, announced by the President of the Central Statistical Office pursuant to separate regulations. In 2019, this may even be the amount of PLN 22,925.00.
It is worth emphasising that it is irrelevant for the assessment of the validity of the complaint for what reasons the action was not performed. It is therefore indifferent whether the authority's exceeding of the statutory deadline relating to taking or performing an action is culpable or not. As indicated by the WSA in Wrocław in the case under case number III SAB/Wr 24/19, the explanation of the provincial governor that the number of applications for work and residence permits for foreigners is high does not justify the delay in issuing a temporary work permit.
I would also like to emphasise that under the current legislation, complainants of protracted proceedings are not obliged to pay court costs in cases of granting protection to foreigners. From the perspective of those seeking legal protection, this is therefore a very favourable solution and encourages them to fight for their rights.
As a result of a successful complaint by the WSA, the authority will be obliged to deal with your case immediately.
Compensation
Finally, it is also worth noting that a person who has suffered damage as a result of the tardiness of an administrative authority is entitled to claim compensation under the principles set out in the Civil Code. Indeed, pursuant to Article 4171 § 3. of the Civil Code:
"If damage has been caused by the failure to issue a decision or judgment, where the obligation to issue such a decision or judgment is provided for by law, its redress may be sought after the unlawfulness of the failure to issue the decision or judgment has been established in the relevant proceedings, unless otherwise provided for in separate legislation."
A necessary prerequisite for being able to bring a claim for damages is to have previously obtained an order upholding a complaint of protracted proceedings, which is binding on the court in civil proceedings for damages or compensation.
At the same time, it should be borne in mind that a necessary condition for accepting liability of the State Treasury is the existence of an adequate causal link between the tardiness of the court proceedings and the damage suffered by the applicant. The issue of obtaining compensation is a complex problem and depends on the circumstances of a given case. It is advisable to consult a lawyer before you decide to pursue a claim in civil proceedings.
Lengthy proceedings - summary
By analysing the relevant legislation, it is possible to see that the legislation gives us a "weapon to fight" against authorities dragging their feet in dealing with our cases. It is therefore worth taking advantage of the opportunities available to us to fight for our rights. However, all actions should be taken in the right order. And, moreover, in accordance with the indicated requirements, in order to be able to enjoy the final success, which consists not only in the mere positive settlement of our case. It is also the obtaining of compensation for any damages suffered.
