23/04/2021
On 10 March 2021 the CJEU (Court of Justice of the European Union) has issued an important judgment for foreigners undertaking or continuing full-time studies in Poland.
The case concerned a student - a citizen of non-EU country, who was refused twice by the Polish consul a national (type D) visa to undertake studies in Poland. A foreigner complaint against the decision to the Voivodship Administrative Court in Warsaw, which rejected the complaint stating the lack of jurisdiction of Polish administrative courts to examine cases related to national visas. The student decided to file a cassation appeal to the Polish Supreme Administrative Court. The Court submitted to the CJEU following question referred for a preliminary ruling: should a third-country national who has been refused a national visa and who cannot exercise his/her right to freedom of movement within the territories of the other EU Member States, be afforded an effective remedy before the courts.
According to the CJEU judgment, foreigners should be provided a right to judicial review procedure against decisions of consuls on refusal to grant type D visas on the purpose for scientific research, study, training, voluntary work, pupil exchange schemes or educational projects, and work as au pairs. It will therefore be for the Supreme Administrative Court to decide whether the application for a national visa for the purpose of study falls within the scope of Directive (EU) 2016/801 of the European Parliament and the Council of 11 May 2016.
NOTE! From 3 March 2019, if your request for reconsideration of the Schengen visa rejection decision has been refused, you can file a complaint against this decision to the Voivodship Administrative Court in Warsaw within 30 days from the date of delivery request refusal. The complaint should be submitted through the Polish consul who issued the visa decision.
Source: C‑949/19 Judgement of the CJEU of 10 March 2021 (Link: https://curia.europa.eu/juris/document/document.jsf?text=Czy+art.+21+ust.+2a+Konwencji+wykonawczej+do+uk%C5%82adu+Schengen+z+dnia+14+czerwca+1985+r.+mi%C4%99dzy+Rz%C4%85dami+Pa%C5%84stw+Unii+Gospodarczej+Beneluksu%2C+Republiki+Federalnej+Niemiec+oraz+Republiki+Francuskiej+w+sprawie+stopniowego+znoszenia+kontroli+na+wsp%C3%B3lnych+granicach&docid=238709&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=3368828&fbclid=IwAR0tKSURZdv9XZd1yOQR01XoxkAPPMfT-Pz4lzwu-twZkxlQIk8zoOYtDQY )
REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 4 November 2019, received at the Court on 31 December 2019, in the proceedings