Refusal of national work visa
In the era of globalization, its important to make sure that the knowledge, scientific achievements, commercial opportunities and of course talent, can be shared among nations of the world with ease and eagerness and without any bureaucratic nonsense and regressive policies. One of the many ways this can be done, is through making it easy for workers in different countries to be able to provide their labor to the national market of a given country, that will in exchange, better its economy and raise its economic prowess on the international stage. Even-though working abroad and traveling while working can be appealing, we cannot forget about the particularities of the national law of each and every country and, of course, the obstacles a foreign worker can come across while on their mission.
In one specific case, a foreign individual was refused a national visa to perform his work duties. The worker decided to appeal this decision in the administrative courts, which stated that that only national law, which excludes judicial review of the contested decision, applies in the case. According to The Supreme Administrative Court, the exclusion of the right to a court does not violate the Charter of Fundamental Rights or the Constitution.
Nonetheless, the foreign worker filled a complaint to The Provincial Administrative Court in Warsaw, against the decision of the Consul of the Republic of Poland in Luanda to refuse to issue a national visa for work purposes. The court found that the case was not within the jurisdiction of administrative courts. During the appeal of this decision in the cassation, worker stated that due to the limitation of the possibility of appealing against an unfavorable decision, there was a violation of the right to a court, which was guaranteed in the Constitution and the Charter of Fundamental Rights.
The case was later taken up by the Supreme Administrative Court, which pointed out that Art. 5 points 1-5 of the Law on Proceedings before Administrative Courts (PPSA), lists the categories of cases for which the possibility of appealing to an administrative court is excluded. Article 5(4) of the PSA stipulates that administrative courts have no jurisdiction in matters relating to visas issued by the minister responsible for foreign affairs or consuls, with the exception of Schengen visas and visas related to family reunification of an EU citizen. This provision excludes, to the extent specified therein, judicial review in visa matters. Based on this, the foreign worker was not entitled to complain about the refusal to issue a national visa for the purpose of performing work.
Such issues can arise from the fact that when the matter is connected to the members of the specific economic organizations, the absence of the separate and concrete acts that regulate the sphere of relations between companies and foreign workers, can cause such instances to be regulated by the national law of the country in question. The Supreme Administrative Court emphasized that the issuance of national visas is provided for in Art. 18 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of controls at common borders. This provision states that visas for stays exceeding 90 days (long-term visas) are national visas issued by one of the Member States in accordance with its national or EU law. The court noted that no act has been adopted at the EU level regulating the procedure and conditions for issuing such visas. Therefore, these issues are covered only by national law.
Each and every individual has a right to protect its rights and interests in court and is entitled to the lawful and comprehensive review of his case in court, given that the individual closely understood the issue and filed the motion to the correct court. But there are some instances where that might not always be the case. The Supreme Administrative Court found the instance of violation of Art. 47 of the Charter of Fundamental Rights, which regulates the right to an effective remedy and access to an impartial court. This provision does not require general judicial review of decisions on national visas, because the examination of an application for such a visa takes place on the basis of national law. The charge of violating the constitutionally guaranteed right to a court also turned out to be unfounded. In accordance with the judgment of the Constitutional Tribunal of November 15, 2000, ref. no. No. P 12/99, the provision excluding the right to go to court in certain administrative matters relating to foreigners is consistent with Art. 45 of the Constitution. In the Constitutional Tribunal's judgment, it was noted that Art. 37 section 2 of the Constitution allows for exceptions to the principle of exercising the freedoms and rights provided for in the Constitution for foreigners. Taking the above into account, the Supreme Administrative Court dismissed the cassation appeal. In order to make sure that every foreign worker is free to do their job and share their work experiences with their colleagues around the globe, European nations need to create a stable and just framework where in the cases of injustice, workers have the right and the ability to protect their rights and interests in the court of law.
Janek, Junior Immigration Lawyer
