Representative
1. Statutory representation and guardianship
According to Section 178 of the Act on the Residence of Foreign Nationals, a foreign national over the age of 15 who is capable of expressing his/her volition and to act independently is deemed to have the capacity to perform legal acts.
For areas where the applicant for residence does not have legal capacity, he/she must be represented by a legal representative in accordance with Section 32 of the Administrative Procedure Code. A legal representative can act on behalf of a foreign national over the age of 15 only on power of attorney. The capacity to perform legal acts which arises after reaching the age of 15, however, does not mean reaching the age of legal majority (at the age of 18). Therefore, when the Act on the Residence of Foreign Nationals talks of a minor foreign national, this refers to foreign nationals under the age of 18.
A foreign national under the age of 15 who does not have a legal guardian, or if his/her legal guardian cannot represent him/her, or does not have a guardian according to a special law, the MOI CR will appoint a guardian under Section 32(2)(a) of the Administrative Procedure Code.
2. Representation under the power of attorney
An applicant may elect to be represented by either a lay representative or by a lawyer in proceedings for residence permit in the territory of the Czech Republic under the written power of attorney or power of attorney granted verbally on record (Sections 33 and 34 of the Administrative Procedure Code.
The participant may have only one representative in the same case at the same time. However, authorized person may grant power of attorney to another person to act in lieu of him for the participant (called substitute power of attorney). The possibility of granting substitute power of attorney must be expressly specified in the original power of attorney issued to the representative by the party.
Power of Attorney must always contain the signature of the donor (i.e. the party to the proceedings) and should satisfy the general submission requirements in accordance with Section 37(2) of the Administrative Procedure Code. The signature of the representative, confirming that he/she accepts power of attorney is not an essential requirement of power of attorney.
Power of attorney (empowerment) may be granted either for one act (for instance, searching in the background materials for issuing a decision) or for the whole proceedings concerning the application. In such cases, notarisation of the donor’s signature is not necessary on the power of attorney. Also, a ordinarily construed power of attorney (typically for power of attorney for a lawyer) may be accepted as power of attorney for the proceedings concerning an application for residence permit (i.e. only in for the one set of proceedings in question concerning one application, coming to an end when the decision on the case has become final and binding), if it contains empowerment for representation in administrative proceedings without a notarised signature being necessary.
Notarisation of the donor’s signature on the power of attorney is necessary only in the case of a universal power of attorney (see Section 33(2)(c) of the Administrative Procedure Code, i.e. power of attorney granted for an indeterminate number of proceedings with a certain subject-matter which are supposed to be commenced in the future. Such power of attorney (e.g. encompassing empowerment to represent in all matters regarding the foreign national’s residence) must, however, be lodged to the MOI CR or put on record before commencement of the proceedings. The party to the proceedings, or else his/her representative, must express his/her desire for this power of attorney to be lodged at the MOI CR and used as power of attorney for all proceedings concerning the foreign national’s residence.
All correspondence will be delivered to the authorized person, who is also entitled to attend all acts which the donor attends (e.g. interview).
At any point in the proceedings, the authorized person may surrender representation or the represented party may withdraw power of attorney. Surrendering representation or withdrawal of power of attorney must be performed in writing or on record so that this withdrawal/record can be put on file. From that time on, correspondence will be delivered only to the (formerly represented) party to the proceedings. Power of attorney of one authorized person may be replaced by power of attorney of another authorized person. In this case, correspondence will be delivered only to the new authorized person, since the party may have only one representative.
According to Section 34(2) of the Administrative Procedure Code, documents are to be delivered only to the representative, unless the represented person has to perform something in the proceedings him/herself. This means that, if it is necessary for the represented party to perform some act in person (e.g. summons to interview, notification to pick up a residence permit etc.), correspondence must be delivered both to the party to the proceedings and to his/her representative.
According to Section 33(4) of the Administrative Procedure Code, if correspondence in the course of proceedings proves impossible to deliver to the authorized person, it shall not be deemed to have been delivered under Section 24(1) of the Administrative Procedure Code, but the correspondence shall be delivered to the authorized person by means of public announcement. The represented applicant will be notified of such a step and of the content of the correspondence.