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Legal force of a decision and appeals

 Česky

The applicant may lodge an appeal to the Commission for decision-making in matters of residence of foreigners against a decision to reject the application within 15 days of delivery of such a decision. If the applicant lodges an appeal, the decision to reject the application shall not become final until the date of delivery of the Commission’s decision rejecting the appeal.
 
Appeals must be lodged with the administrative authority which issued the disputed decision, i.e. in writing to the MOI CR office or by post to the address of the relevant MOI CR office. The deadline for lodging an appeal is deemed to be met if the date on the postmark on the letter addressed to the MOI CR is not later than the last day of this deadline.
 
If no appeal is lodged, the decision to reject the application becomes final on the day following the last day of the 15-day deadline for lodging an appeal. If the foreign national surrenders his/her right to lodge an appeal, the decision shall become final on the date on which this right was surrendered.
 
If the party to proceedings has lodged an appeal by the legal deadline for appeal and subsequently withdraw the appeal, proceedings on the appeal shall by law (Section 91(3) of the Administrative Procedure Code) be discontinued on the date on which the appeal has been withdrawn by the last of the appellants. The disputed decision shall then become final on the day following discontinuance of proceedings. If appeal proceedings are still in the decision-making phase on the part of the MOI CR, the MOI CR shall issue a resolution concerning the fact that appeal proceedings have been discontinued which will merely be noted down into the file and the parties shall be notified of this fact; in other cases, withdrawal of the appeal will be passed up to the Commission for decision-making in matters of residence of foreigners. If the appellant withdraw an appeal, he/she may not lodge another.
                       
The appeal must contain required elements specified in Section 37(2) of the Administrative Procedure Code and must contain information concerning  
  • what the decision is directed against,  
  • what aspects of the decision being challenged, and
  • where the contradiction with legislation is believed to lie or in what way the preceding decision or proceedings were at fault.
If the appeal does not specify what aspects of the decision are being challenged, it shall be assumed that the aim is to cancel the decision as a whole.                 
The administrative authority which issued the disputed decision, i.e. the MOI CR, may cancel or amend it if this means satisfying the appeal and if no harm can be caused thereby to any of the parties (autoremedial action). If administrative authority which issued the disputed decision does not deem that conditions for such a step have been satisfied, it shall pass on the file with its opinion to the appellate administrative authority within 30 days of reception of the appeal
 
If an appeal is lodged against the decision of the MOI CR, necessary steps leading to elimination of any formal errors in the appeal in accordance with Section 37(3) in combination with Section 82(2) of the Administrative Procedure Code – this concerns mainly elimination of formal errors in the appeal such as identification of the appellant, identification of the administrative authority whose decision is being appealed against, signature, identification of the disputed decision, but also where the contradiction with legislation is believed to lie, in what way the preceding decision or proceedings were at fault, etc. The MOI CR shall call upon the appellant to eliminate the errors either on the spot or in a written summons
 
If the appellate administrative authority (the Commission for decision-making in matters of residence of foreigners) concludes that the decision is in contradiction with legislation or that it is incorrect, 
  • the disputed decision or part thereof shall be cancelled and proceedings discontinued,
  • the disputed decision or part thereof shall be cancelled and the case returned for reappraisal by the administrative authority that issued the decision; the appellate administrative authority shall state in its rationale for making this decision the legal standpoint which, during repeated processing of the case, shall be binding for the administrative authority that issued the disputed decision, or 
  • it shall cancel the decision or amend part thereof
If the Commission for decision-making in matters of residence of foreigners decides not to implement any of the above steps, it shall reject the appeal and confirm the disputed decision. If it amends or cancels only part of the disputed decision, it shall confirm the remaining aspects.
 
Decisions in appellate proceedings shall be issued by the Commission for decision-making in matters of residence of foreigners within the time period set in Section 71 of the Administrative Procedure Code. The time period begins to elapse on the date on which the file is passed on to the Commission for decision-making in matters of residence of foreigners to make its decision
 
Late or unacceptable appeals shall be rejected by the Commission for decision-making in matters of residence of foreigners. If a decision has already become final, it will subsequently scrutinise whether the preconditions have been met for review of the decision in review proceedings, for reopening proceedings or for issuing a new decision. If the preconditions for commencing review proceedings, reopening proceedings or issuing a new decision have been met, the late or unacceptable appeal shall be treated as grounds for review proceedings or as an application for issuing a new decision.  
        
A decision by Commission for decision-making in matters of residence of foreigners may not be appealed against.

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