Abstract
The analyzed ruling is the first judgement which the Court of Justice passed in order to provide interpretationfor the new Student Directive (2016/801 of 11 May 2016 on the conditions of entry and residence ofthird-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemesor educational projects and au pairing). Due to its judiciary activism, the Court was able to find a connectionbetween the case pending before a national court and EU law in the case of M.A. In the end, the Court finallydecided that in the case at issue, regarding the rights of a foreign national to apply for a residence permit for thepurpose of enrolling in second-cycle studies programme in Poland, the procedure of applying for a long-stay visaon the grounds of national law must be safeguarded by the guarantees under Article 47 of the Charter of FundamentalRights. The guarantees apply to the actual states in which EU law is applicable – in this case the “StudentDirective.” It seems that the ruling in the case of M.A. will play a crucial role in facilitating students’ – TCNs’ – entryinto the territory of the Republic of Poland, while the Polish legislator, in all probability, will be obliged to changethe provisions of the national law in such a way as to make it possible for future students to access a full array oflegal remedies against the negative decisions of consuls.
Highlights
The Court decided that in the case at issue, regarding the rights of a foreign national to apply for a residence permit for the purpose of enrolling in second-cycle studies programme in Poland, the procedure of applying for a long-stay visa on the grounds of national law must be safeguarded by the guarantees under Article 47 of the Charter of Fundamental Rights
The Supreme Administrative Court observed that holders of national long-stay visa, under the provisions of Article 21 (2) (a) of the Convention Implementing the Schengen Agreement (CISA) have the right to free movement and holding a national visa is a prerequisite to be able to exercise the entitlements given to TCNs by European law
The Court of Justice decided to reformulate the question referred for a preliminary ruling and examine whether: “EU law, in particular Article 21 (2a) of the CISA read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires the Member States to provide for an appeal procedure against decisions refusing a long-stay visa for the purpose of studies.”
Summary
In the case under discussion, the request for a preliminary ruling was submitted to the Court by the Polish Supreme Administrative Court, examining a cassation complaint submitted by a foreign national against the refusal to issue a national visa. The reason behind the visa application was to enrol in a second-cycle programme of studies in Poland. In accordance with Article 32 (3) of the Visa Code, in a situation when a foreign national is refused a visa, he or she is entitled to the right of appeal against the unfavourable judgement. Polish law does not provide for the possibility of challenging the refusal decision rendered by the consul before administrative courts, as they are not competent to rule in the cases of visas issued by consuls.. The Supreme Administrative Court observed that holders of national long-stay visa, under the provisions of Article 21 (2) (a) of the CISA have the right to free movement and holding a national visa is a prerequisite to be able to exercise the entitlements given to TCNs by European law. Especially of Article 47 of the CFR. Given the circumstances, the national court suspended the proceedings and referred a question for a preliminary ruling to the Court of Justice of the European Union.
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