Suspension of assistance to a foreigner (Article 95 of the Social Assistance Act)

A foreigner under subsidiary protection may benefit from state-funded integration assistance. But this assistance is not unconditional — the Social Assistance Act provides for situations in which the authority must suspend or refuse it. One such ground is a final conviction for an intentional offence. Against the background of the judgment of the Provincial Administrative Court in Warsaw of 5 August 2010 (case no. V SA/Wa 934/10) we explain how Article 95 of the Social Assistance Act works, when refusal is the authority’s duty rather than its discretionary decision, and what risk is associated with a prior criminal record.

1. The facts of the case

A foreigner (A. B.), together with his wife and four minor children, obtained subsidiary protection in the territory of Poland by a decision of the Head of the Office for Foreigners of January 2009. This entitled the family to join an Individual Integration Programme (IPI). The first programme, drawn up by the Municipal Social Assistance Centre, covered a period of 12 months (from March 2009 to February 2010); under it the family received, among other things, a maintenance benefit, funds for learning Polish and health insurance contributions.

After changing their place of residence (August 2009), the family signed another programme — a continuation — drawn up by the District Family Assistance Centre. That programme, however, was not implemented. The starosta, acting through the Director of the District Family Assistance Centre, refused financial assistance by a decision of October 2009. The reason: the National Criminal Register showed that the foreigner had been convicted by a final judgment of the District Court (final in September 2008) of an intentional offence — illegally crossing the Polish border under Article 264 § 2 of the Criminal Code.

2. Grounds of appeal — what infringements were alleged

The Local Government Board of Appeal upheld the refusal, pointing to the ground under Article 95(4)(2) of the Social Assistance Act (conviction by a final judgment for an intentional offence). The foreigner challenged that decision before the administrative court, alleging:

• infringement of Article 95(4)(2) of the Social Assistance Act through erroneous interpretation — in his view an offence committed before joining the programme should not cancel the right to assistance;
• linking that ground with the conclusion of criminal proceedings referred to in Article 95(1)(5) of the Social Assistance Act — the applicant argued that it is that provision which sets the proper basis of assessment;
• infringement of Articles 6 and 7 of the Code of Administrative Procedure (the principle of legality and the principle of objective truth).

A participant in the proceedings (a social organisation admitted to the case) additionally argued that the provisions on refusal of a benefit should relate solely to the duration of the programme (12 months), and that illegally crossing the border does not breach public order to a degree that would automatically deprive a foreigner of the chance to integrate. Reference was also made to the risk of marginalisation and exclusion of foreigners left outside the programme.

3. The court’s judgment and its reasoning

The Provincial Administrative Court in Warsaw dismissed the complaint (basis: Article 151 of the Act — Law on Proceedings before Administrative Courts). The court found the decisions of both instances correct. Key points of the reasoning:

The mere fact of conviction is a sufficient and self-standing ground for refusal. In the court’s view, it follows unequivocally from Article 95(4)(2) of the Social Assistance Act that the ground for refusal is the mere fact of the foreigner’s final conviction for an intentional offence — regardless of when it was committed. The circumstance that the act was committed before joining the programme is irrelevant to the statutory conditions.

Refusal is not a discretionary decision. The court stressed that once the conditions of Article 95(4) of the Social Assistance Act are met, refusal of assistance is the authority’s duty, not the result of free discretion. The authority does not weigh the circumstances here — it merely establishes whether the condition has arisen.

Distinction between paragraph 1(5) and paragraph 4(2). The court rejected the argument that the provision should be read together with Article 95(1)(5) of the Social Assistance Act. The latter concerns suspension of assistance where criminal proceedings are instituted against a foreigner while they are participating in the programme — until the case is finally concluded. That is a different factual situation from a conviction which became final before joining the programme.

Article 91(11) is not the only ground for refusal. The court did not accept that the only reason for refusal could be the condition concerning the spouse of a Polish citizen (Article 91(11) of the Social Assistance Act). The grounds for refusal are set out, among others, in Article 95(4)(1)–(3), as well as in paragraph 3 of that article.

No procedural infringements demonstrated. The court found the allegation of infringement of Articles 6 and 7 of the Code of Administrative Procedure unfounded — the applicant did not show what specifically the infringements were supposed to consist in, and the court did not identify any itself.

4. Possible interpretations and risk assessment

The judgment illustrates the tension between two lines of interpretation which are worth considering in practice:

Literal interpretation (adopted by the court). Since the provision speaks of “conviction by a final judgment for an intentionally committed offence” without setting any time frame, any such conviction — regardless of the date of the act — triggers the duty to refuse. This is the safest interpretation from the point of view of predicting the authority’s decision.

Purposive interpretation (raised by the applicant and the social organisation). The aim of the programme is integration; the provisions on refusal should therefore be tied to the duration of the programme and to the foreigner’s conduct during it, not to acts predating the programme. This line — despite arguments about the risk of exclusion — was not accepted in this case.

Courses of action worth considering in a similar situation:

• verifying the status of the conviction — whether the judgment is final and whether the conviction has been expunged (expungement removes the effect of being a “convicted person”, which may matter for the assessment of the condition);
• establishing whether the act is indeed an intentional offence and whether its classification in the National Criminal Register is correct;
• considering measures in the criminal proceedings (e.g. reopening, pardon) where there are grounds for them — as a route indirectly affecting the assistance condition;
• analysing other forms of social support, independent of the integration programme, to which the foreigner may be entitled.