The United Kingdom’s withdrawal from the European Union on the basis of the Withdrawal Agreement is connected with the commencement of the so-called transition period from 1 February 2020 until 31 December 2020. During that period, the rules of entry and residence applying to the citizens of the United Kingdom of Great Britain and Northern Ireland exercising their and their family members’ right to freedom of movement in the Republic of Poland shall be regulated by the Act of 14 July 2006 on the entry into, residence in and exit from the Republic of Poland of nationals of the European Union Member States and their family members (i.e. Dz. U. [Journal of Laws] 2019, item 293 as amended).
In accordance with Article 21(1) of the aforementioned Act, the stay shall be registered at the request of an EU citizen and the residence card of an EU citizen’s family member shall be issued at the request of a family member who is not an EU citizen. The request application, referred to in paragraph 2, shall be submitted in person, not later than on the day following the lapse of 3 months from the date of entry into the Republic of Poland. The requirement to submit an application in person does not apply to a minor.
In accordance with Article 22 of the Act of 4 February 2011 on private international law (i.e. Dz. U. [Polish Journal of Laws] of 2015, item 1792, hereinafter “p.i.l.”), legal representation is subject to the laws applicable to the legal relationship from which the power of representation results. In addition, Article 59(1) p.i.l. states that the laws applicable to matters of parental responsibility and relations with the child is set out in the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, signed in Hague on 19 October 1996 (OJ L 221, p. 1. Journal EU L 151, 28.12.2005, p. 39; Dz. U. [Polish Journal of Laws] of 2010, no. 172, item 1158, hereinafter: “Convention”).
Therefore, Article 17 of the Convention shall mean that the exercise of parental responsibility is governed by the law of the State of the child’s habitual residence. In the case of a change of the child’s habitual residence, it shall be subject to the law of the country of the new habitual residence.
Pursuant to the provisions of Article 98 § 1 of the Act of 25 February 1964 – Family and Guardianship Code (Dz. U. [Polish Journal of Laws] of 2019, item 2086, as amended, hereinafter „f.g.c.”) the parents are the statutory representatives of a child who remains under their parental authority. If the child remains under the parental authority of both parents, each of them can act independently as the child’s legal representative. Moreover, according to Article 99 of the f.g.c., if none of the parents can represent the child remaining under parental authority, the child shall be represented by a guardian appointed by the custody court.
In accordance with Article 32 of the Act of 14 June 1960 – Code of Administrative Procedure (i.e. Dz. U. [Polish Journal of Laws] of 2018, item 2096, as amended, hereinafter referred to as the “c.a.p.”) a party may act through an attorney unless the nature of the action requires his/her personal action.
The essence of the discussed problem is the proper interpretation of art. 21(2) of the Act on Entry, and in particular understanding that the foreigner is obliged to personally to submit the application. Teleological interpretation indicates that the intention of the legislation was to understand this provision in such a manner that the phrase “shall be submitted personally” means a formal act performed by a foreigner, consisting in his/her personal appearance in a competent public administration body and submission of the application form in paper form to that administrative body’s employee who is duly authorised to accept it.
Therefore, exempting a minor EU citizen or a minor family member of a non-EU citizen from the requirement to submit an application in person means that a minor foreigner is not required to be physically present in the competent public administration body during the process of submitting the application.
Going further, it should be noted that in a situation where an administrative case concerns a minor who is not a citizen of the Republic of Poland, represented by a statutory representative, there is a need to determine the law applicable to the relationship of this parental authority. It follows from Article 17 of the Convention, already cited, that the exercise of parental authority is governed by the law of the State of the child’s habitual residence. In practice, the term “habitual residence” is defined as a circumstance in which a foreigner remains on the territory of one country without an intention to reside there permanently (characterising the place of residence). Therefore, it should be assumed that the place of habitual residence of a minor EU citizen or a minor family member who is not an EU citizen, with regard to the problem in question, is the territory of the Republic of Poland, and thus, the Polish law shall apply in these matters.
Pursuant to Article 98 cited above, parents are the statutory representatives of the child under their parental authority. Therefore, apart from performing material and legal actions on behalf of the minor and actions before the courts, it also includes actions before administrative bodies. These actions, with the exception particular cases, indicated in the f.g.c. and other special laws, are always effective and produce legal effects. The event that it is not possible for the parents to represent the child, the role of the minor’s representative shall be taken over by a guardian appointed for this purpose by the custody court (Article 99 of the f.g.c.). In principle, that person holds the same rights in terms of legal representation as the child’s parents.
The Family and Guardianship Code does not prohibit the parents of a minor from appointing an attorney who may have the right to act both on their behalf and on behalf of the minor himself. However, considering Article 32 of the c.a.p., that law has certain limitations. The legislator imposes on a party an obligation to act in person in the event that it is required by the nature of the action.
An example of an activity which requires personal action of the party is submitting applications for registering the stay of an EU citizen or for issuing a residence card for a family member of an EU citizen, which in the context of applying to a public administration body with an individual request, shall be understood as filling in the application form and then submitting – under the declaration of truthfulness of the data contained in the application – the party’s signature.
Therefore, when the request concerns a minor foreigner, the only persons having the right to fill in and, most importantly, sign the application are his/her legal representatives or a guardian appointed by the custody court. However, this does not mean that the nature of the entire proceedings for registration of residence or for the issue of a residence card for a minor family member who is not an EU citizen precludes the participation of an attorney. Other actions appropriate to the matter may already be carried out by a duly authorised proxy.
To sum up, it should be stated that the regulations in force:
- Do not require the physical presence of a minor foreigner in the competent public administration body when submitting an application for registration of the stay of an EU citizen or for issuing a residence card for a family member of an EU citizen
- They require that the actions to submit an application for the stay of a foreign minor shall be performed by the statutory representatives of the minor or a guardian appointed by the custody court
- They do not preclude the application completed by the minor’s legal representatives or by his or her superintendent from being lodged not in the course of appearing in person at the office serving the governor, but through a postal operator
They do not object to the fact that other activities in the proceedings, apart from the action of filing an application, are performed by an attorney appointed by the minor’s statutory representatives or by his or her superintendent.