Dublin

Poland

Author

Helsinki Foundation for Human Rights

General

Dublin statistics: 2016







Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

180

82

Total

9503

1420

Germany

65

41

Germany

6613

901

Hungary

17

2

France

966

34

Austria

16

2

Austria

672

207

Source: Office for Foreigners

 

Application of the Dublin criteria

According to the Dublin Proceedings Unit at the Office for Foreigners, the request for taking charge/taking back may be initiated at any stage of the asylum procedure if any circumstances justifying the request arise. The vast majority of “in” requests (5625 out 9503) was based on article 18(1)c of the Dublin III Regulation, while 68 out of 180 “out” requests was directed on the basis of article 18(1)b of the Dublin III Regulation.

In 2015 in cases of “out” requests, the most common circumstances that justified launching the Dublin procedure were: interception of the illegally staying foreigner and Eurodac hit (take back requests, 60% of “out” requests), family reunification (take charge requests, approximately 15% of “out” requests), holding a visa or residence permit issued by another Member State (take charge requests, app. 10 % of “out” requests) or Eurodac hit of an asylum applicant (take back requests, 7% of “out” requests). In 2016 no information was provided.

In case of “in” requests, the most common circumstances that justified launching the Dublin procedure were: asylum application lodged in another Member State and Eurodac hit; less frequently: illegal stay and Eurodac hit (take back requests, 72% of “in” requests), holding a visa or residence permit issued by Poland (take charge requests, 26% of “in” requests) and family reunification (take charge requests, app. 1% of “in” requests).

In 2015 in cases considering family unity in Dublin procedures no use was made of DNA tests. In all cases the asylum seekers were in possession of the documents certifying family ties and there was no need to confirm family links by forms, there were requests for information or medical examination. Generally requests to other Member States are made if there is enough evidence, taking into consideration the stage of the procedure and the applicable deadlines.1

The discretionary clauses

The humanitarian clause was applied just once in 2016. The sovereignty clause was used on nine occasions.2 No information on the circumstances was provided.

 

Procedure

The Head of the Office for Foreigners is responsible for Dublin procedures.3 All asylum seekers (over 14 years old) are fingerprinted and checked in Eurodac at the time of lodging their asylum application. Until 12 November 2015 if there was any evidence or sign that another country may be responsible for examining the application, the Dublin procedure was applied. There were no grounds set in the national law that would allow for not applying the Dublin procedure, if there was any sign that another country may be deemed responsible.

From 13 November 2015 on, in all cases the Head of the Office for Foreigners applies the Dublin procedure.4

According to the Office for Foreigners, if the authorities decide to apply the Dublin procedure, asylum seekers are informed about it. They are, however, informed about the following steps of the procedure (decision received from another Member State, the need to submit additional documents). Asylum seekers and their legal representatives can contact the Dublin Unit in person, in writing or by phone.5

Individualised guarantees

The judgment Tarakhel v Switzerland has not influenced the practice of the Head of the Office for Foreigners in Dublin cases in 2015 and 2016. The reason given is that the only foreigners transferred from Poland to Italy are single men.6 Persons with special needs are not transferred to Italy, Hungary and Bulgaria.7

Transfers

According to the information provided in 2015, the time period during which the transfer is made depends on whether the Dublin procedure was initiated by the asylum authorities or by the applicant themselves (e.g. family reunification requests). In the latter case asylum seekers usually do not appeal the decision on transfer. In cases of detention involving illegal stay or family reunification it takes on average 4-6 weeks before the applicant is transferred to the Member State which accepted responsibility (from 13 days to 3 months). In cases of holding residence permit or visa of another Member State by the applicant or Eurodac hit it is hard to estimate, since asylum seekers often appeal such decisions on transfer. In these instances the Member State concerned is informed about the suspensive effect.8 In 2016 no update was provided.

Asylum seekers are transferred under escort only when there is a risk of absconding or if the asylum seeker has already absconded beforehand. In 2016, the Border Guard informed that they transferred 90 persons under coercion.9

When an asylum seeker is transferred back from another Member State, they need to lodge an asylum application through the SG (or an application to re-open their asylum procedure). The SG either directs them to a reception centre or detains them for a maximum of 48 hours and requests a placement in a guarded centre to the court. Depending on the situation, their procedure is re-opened (if it was discontinued beforehand, because they left) or their application is considered subsequent, if they already received a decision before leaving Poland.

An asylum seeker can be detained after being transferred back from another state, as crossing the border illegally when leaving Poland constitutes a basis to be placed in detention or they may be detained in case of a lack of identity documents.10 In 2014 HFHR handled a case of an Iranian woman, who was transferred under the Dublin Regulation from the Netherlands to Poland with an established identity according to the transfer documents but was detained upon arrival on the basis of her lack of identity documents. Assisted by HFHR lawyers, the asylum seeker (now granted subsidiary protection) applied to the court for compensation due to unlawful detention. Compensation, in this case, has been granted entirely.

There is also a legal basis for detention in Dublin “out” cases introduced on 13 November 2015, based on the risk of absconding (see section on Grounds for Detention).11 The Border Guards reported that 8 persons were placed in detention in 2016 on this basis. In 2016, 65 persons were transferred under Dublin from detention centres.12

 

Personal interview

There is no personal interview conducted exclusively for the purpose of the Dublin procedure. The information about the possible responsibility of another Member State is taken through various means. Alongside the Eurodac database information may be acquired from a form on which an asylum claim is registered by the SG or from an interview in the regular asylum procedure conducted by the Office for Foreigners. If there is a need to obtain additional information or documents from an asylum seeker involved in a Dublin procedure, they are contacted in writing, by phone or are asked to come to the Office for Foreigners.13 It is worth mentioning that under the Law amending the Law on Protection there is a new form for an asylum application issued and additional questions useful for the Dublin procedure form an integral part of it.14

 

Appeal

Asylum seekers can appeal against decisions taken in the Dublin procedure to the Refugee Board (and then to the Voivodeship Administrative Court in Warsaw and the Supreme Administrative Court) within 14 days following the same procedure described in the section on appeals in the Regular Procedure: Appeal.

The average time for the appeal procedure in Dublin cases in 2016 was 68 days. In 2016 the Refugee Board issued 15 decisions in Dublin proceedings, out of which 11 confirmed the decision of the Head of the Office for Foreigners. 

 

Legal assistance

Free legal assistance is offered as described in the section on Regular Procedure: Legal Assistance. State legal aid introduced on 1 January 2016 covers preparing an appeal and representation in the second instance.15

 

Suspension of transfers

The Office for Foreigners adopted a policy of non-transfer to Greece from 1 February 2011, as a result of the European Court of Human Rights (ECtHR)’s M.S.S. judgment.16 In 2016 cases of applicants with special needs are not subject to Dublin procedure if the receiving country would be Hungary, Italy or Bulgaria.17

Poland does not direct any take charge/take back requests to Greece, but tries to establish whether another state could be responsible for examining the asylum application and if not, it takes the responsibility for examining the asylum application. There were no other systematic suspensions to any other Member States as a result of jurisprudence or policy. It is worth mentioning that, as reported by HFHR in 2014, transfers to Greece under readmission agreements did take place. Some of the returnees were rejected asylum seekers (e.g. from Pakistan). There was no information on whether their situation in Greece upon return was subject to any evaluation. The problem of readmissions to Greece was described by HFHR in their report published on 27 June 2015.18 The Border Guard Headquarters have informed HFHR that since 1 July 2015 readmissions to Greece have been suspended.19 By mid-2015 there were 12 foreigners readmitted to Greece. In 2016 there were no readmissions to Greece.20

When establishing the facts within the Dublin procedure or when awaiting a response from another Member State, asylum proceedings may be suspended in individual cases, but asylum seekers have full access to reception conditions pending a decision.

 

The situation of Dublin returnees

There is no information on obstacles in accessing the asylum procedure by the Dublin returnees. There were cases when HFHR, trying to follow the asylum seekers transferred back from another country, learned from the SG that they applied straight away for voluntary return and left the territory. The reason why they chose return over a (re)examination of their asylum claim is not known. The time limit to reopen the procedure has not been problematic as it was 2 years. Since 13 November 2015 the deadline is 9 months. In cases where e.g. the applicant did not wait for examination of his asylum claim in Poland but went to another Member State and did not come back to Poland within 9 months, the case will not be evaluated under the regular “in-merit” procedure. Their application lodged after this deadline will instead be considered as a subsequent application and subject to an admissibility procedure.21 These provisions will concern decisions on discontinuing the procedure issued under the new regulations. For the decisions on discontinuing the procedure issued under the previous law, the deadline of 2 years for reopening the procedure is still applicable.22

In 2016, 9186 decisions on discontinuing the procedure were issued because the applicant explicitly withdrew the application, left Poland, did not reach or left the reception centre, etc. At the same time there were no cases of reopening the procedure within 9 months, as the Office for Foreigners reports.23

In 2013 and 2014 HFHR was concerned about the practice of the application of the Dublin II Regulation, which resulted in the separation of the families of asylum seekers between two countries. Based on their information there were cases in which German authorities, transferred only some members of the foreigners’ family, who have been initially under one, common asylum application in the territory of the Republic of Poland. Such practice was most commonly used in cases of foreigners who lodged an asylum application to the Head of the Office for Foreigners in Poland and after that travelled on to Germany. Subsequently their procedure in Poland was discontinued. Apart from infringement of international and European standards regarding family unity, said practice leads also to other legal problems.

In a situation where an asylum seeker is transferred to Poland the Head of the Office of Foreigners lifts the previous decision of discontinuation of the proceedings and decides on its renewal. In some cases members of the family of the asylum seeker, on behalf of whom the asylum seeker lodged an asylum application, are also under these proceedings, even though those members are not on the territory of the Republic of Poland. In such a situation, when part of the family of the asylum seeker is on the territory of another country, there is a problematic issue on the legitimacy of examining the asylum application for the whole family. In case of initiating such proceedings asylum seekers who are not present in the territory of Poland are not provided with the right of active participation in the proceedings for granting them the status of a refugee. There is also no legal basis for granting the protection for the family of the asylum seeker if the application turns out to be justified. Whereas in the situation when part of the family is transferred, without the applicant, the members of the family have no capacity to request for renewal of the previous proceedings concerning them. In this situation the solution of filing another asylum application by the members of the family cannot be recognized satisfactory. When the family of the applicant has left his / her country of origin, due to possible danger that threatened only the applicant, and has as a whole been under one asylum application, this family is left with no chance of obtaining protection.

Furthermore, in one case reported to HFHR, the applicant (male adult) was transferred to Poland, while his wife, who was at the time in an advanced stage of pregnancy, stayed in Germany along with their minor children. In another case only a mother with small children, was transferred to Poland while the father of the family stayed in Germany.  As a result, these families were separated and women with children stayed without their husbands. During the meeting of the HFHR with the SG Headquarters representatives, it was said that after discussion with the German counterparts, there were no such cases. The Dublin Unit at the Office for Foreigners confirms that these cases were incidental in 2014 and 2015. There were no such cases in 2016.24

  • 1. E-mail information from the Dublin Unit at the Office for Foreigners from 8 September 2015.
  • 2. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
  • 3. Article 36(2) Law on Protection, as amended in November 2015.
  • 4. Article 36(1) Law on Protection, as amended in November 2015.
  • 5. Letter from the Head of the Office for Foreigners to HFHR from 27 August 2015 no BSZ-0811/1429/15/RW.
  • 6. Ibid.
  • 7. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
  • 8. Ibid.
  • 9. The Border Guard Headquarters letter to HFHR from 19 January 2017 no KG-OI-III.0180.5.2017/AP.
  • 10. No data made available by the Border Guards on how many transferees were detained upon arrival. Last available statistics on this issue can be found in the Transnational Dublin Project Final Report from May 2011, available at: http://bit.ly/1MG39e7.
  • 11. Article 398(1)(3a) Law on Foreigners, as amended in November 2015.
  • 12. The Border Guard Headquarters letter to HFHR from 19 January 2017 no KG-OI-III.0180.5.2017/AP.
  • 13. Information obtained from the Dublin Proceedings Unit at the Office for Foreigners in 2014 (orally and by e-mail).
  • 14. Regulation of the Ministry of the Interior of 4 November 2015 on the asylum application form (Rozporządzenie Ministra Spraw Wewnętrznych z dnia 4 listopada 2015 r. w sprawie wzoru formularza wniosku o udzielenie ochrony międzynarodowej), available at: http://bit.ly/1l97b7F.
  • 15. Article 69e Law on Protection, as amended in November 2015.
  • 16. ECtHR, M.S.S. v. Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011.
  • 17. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
  • 18. Przekazania cudzoziemców do Grecji (Transfers of foreigners to Greece) in the Helsinki Foundation for Human Rigths, POWROTY. Obserwacje Programu Pmocy Prawnej dla Uchodźców i Migrantów Heslińskiej Fundacji Praw Człowieka dotyczące przestrzegania praw cudzoziemców powracających do kraju pochodzenia (RETURNS. Observations ofthe Legal Assistance for Refugees and Migrants Programme of the Helsinki Foundation for Human Rights concerning the rights of returning migrants),2015, 62, available in Polish at: http://bit.ly/1MG3i1e.
  • 19. Letter from the Border Guard Headquarters to HFHR from 24 August 2015 no FAX-KG-CU-5944/IP/15.
  • 20. The Border Guard Headquarters letter to HFHR from 19 January 2017 no KG-OI-III.0180.5.2017/AP.
  • 21. Article 40(6) Law on Protection, as amended in November 2015.
  • 22. Article 15 Law amending the Law on Protection, which entered into force in November 2015.
  • 23. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
  • 24. Information provided by HFHR. Office for Foreigners did not provide information on this issue in 2016.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti