The Head of Office for Foreigners is a state authority which is responsible, among others, for making first instance decisions in granting and withdrawing protection status, deciding on the state's responsibility under the Dublin Regulation and on social assistance provided in the asylum procedure. It is also responsible for the legalisation of the stay of foreigners in Poland (central visa authority and second instance authority in residence permits procedures).
The time limit set in law for the Head of the Office for Foreigners to make a decision on the asylum application is six months.1 Under the Law amending the Law on Protection, which entered into force on 13 November 2015, it can be prolonged to 15 months if the case is complicated, if there are many asylum seekers applying at the same time or if the asylum seeker did not fulfil the obligation of presenting all the evidence and documents or attending the interview.2 The Office for Foreigners confirms that this provision is applied in practice, but did not provide exact numbers.3 Overall in 3196 cases in 2016 the Office for Foreigners decided to prolong the examination of the case (which means that the case was not handled in 6 months).
In 2015 the average processing time to issue a decision on the merits in practice was 161 days (5 months and 8 days).4 In 2016 it was 86 days for the Office for Foreigners The longest processing time took 1 636 days and the shortest 2 days.5
According to lawyers working on cases at the HFHR, there is a backlog in both first and second instance proceedings. At first instance, 3,030 applications were pending at the end of September 2015;6 information on pending cases at second instance is not available. As of 31 December 2016 there were 3431 cases pending before the first instance authority.
According to the law, if the decision is not issued within 6 months, the general provisions on inaction of the administrative authority apply,7 i.e. the Head of the Office for Foreigners should inform the applicant in writing about the reasons of delay (which in practice is done in a very general way) and the applicant can submit a complaint to the second instance authority (the latter hardly ever happens in practice). The most significant consequence for the applicant of not issuing a decision on asylum application within 6months is a possibility to apply for a work permit on this basis.8 The Head of the Office for Foreigners then issues a certificate, which – together with a temporary ID – gives a right to work in Poland until the end of the procedure.9
According to the Office for Foreigners well-founded cases (e.g. Syrians), cases of persons requiring special treatment (e.g. unaccompanied minors) and cases of detained asylum seekers are prioritised as much as it is possible and/or needed.10 For Syrians, the average time to process their asylum applications in the first half of 2015 was 94 days, in the case of unaccompanied minors it was 90 days.11 In 2016 the average time to process an asylum application from a Syrian applicant took 116 days which means it was longer than the average. With regard to unaccompanied minors no statistical data was provided. In case vulnerable applicants and detainees the Office for Foreigners confirmed that they are prioritised but because of complexity of these cases the processing time is long.12
Personal interviews are conducted by the Office for Foreigners and are generally mandatory in a regular procedure, unless:
A decision on granting refugee status can be issued on the basis of evidence already gathered; or
An applicant is not fit to be interviewed (e.g. due to health or psychological problems).13
According to the Office for Foreigners, interviews are conducted in the majority of cases in a regular procedure.14 In previous years,15 it has happened that the interview was conducted although the applicant was not fit for interview due to serious psychological and psychiatric problems.16 The Office for Foreigners stated that in 2015 and 2016 there were cases where the interview was not conducted because the applicant was not fit for interview.17 The procedures are generally gender-sensitive. In 2016 the Office for Foreigners did not provide statistical data concerning the number of conducted personal interviews.
Interpretation is ensured respectively by the Head of the Office for Foreigners and the Refugee Board. The interview should be conducted in a language understandable for the applicant. In the asylum application, the asylum seeker has to declare their mother tongue as well as any fluent knowledge of other languages.
The contract established between the Office for Foreigners and interpretation services regulates the quality, liability, and specifies the field (asylum). Interpretation is available in most of the languages spoken by the asylum applicants in Poland. In the previous year’s NGOs pointed at some problems with the quality of interpretation: the dialect of a particular language is not duly taken into account, as well as the knowledge of the country of origin and intercultural competence of the interpreters.18 According to the Office for Foreigners, in 2014 and 2015 there were no problems with ensuring interpretation services for any language.19 In 2016 reported problems concerned very rare languages, like Igbo, djula and tigrinia. In these cases the applicants usually know also other more common languages and agree to be interviewed in that second language.20
Audio or video recording is possible under national legislation if an applicant was informed about this fact and technical means allow for that. According to the Office for Foreigners reply from 2015, there are no technical means to do it.21 As for videoconferencing – there are no statistics available for 2015, but in 2014 videoconferencing was used with regard to asylum seekers placed in detention centres, now used on a regular basis, unless there was a vulnerable applicant. According to the Office for Foreigner in those cases the interviewer came to the detention centre with a psychologist.22 However, the HFHR reports a case in 2014 where the applicant placed in the detention centre, suffering from post-traumatic stress disorder (PTSD) diagnosed in Germany, was interviewed through videoconferencing, without a psychologist.23 The Office for Foreigners did not provide any data on 2016, but HFHR lawyers confirm that videoconferencing is used in detention centres, even in cases of vulnerable applicants.
The law provides that a copy of the report of the interview should be handed in to the applicant after a personal interview. In some cases the applicants do not take or keep them, but they can ask for a copy at any stage of the proceedings. The report is prepared in Polish and contains all the questions asked and responses received, but it is not a verbatim transcript. The report is handwritten, which sometimes makes it unreadable; however, some officers at the Office for Foreigners do use computers. At the end of the interview the report is read to the applicant in an understandable language and before signing it, interviewees can make corrections (and are informed about such possibility).24
However, a recurring problem is that asylum seekers are not aware of the importance of the interview, that they should give detailed testimonies, check thoroughly how their statements are put in the report and that comments made in the appeal or in subsequent proceedings are generally not taken into account.
Decisions of the Head of the Office for Foreigners in the regular procedure can be appealed to the Refugee Board within 14 calendar days. The decision (without a justification) as well as guidance on how to appeals translated into the language that the applicant for asylum had previously declared as understandable. The applicant can submit the appeal in their own language.
The Refugee Board is an administrative body, consisting of twelve members, supported in their work by six employees, not involved in decision-making process.25 In the regular procedure, decisions are made by three members. The procedure includes an assessment of the facts, and there is a possibility of hearing applicants. The time limit set in law for the appeal procedure is one month.26 The appeal has suspensive effect.27 Neither hearings nor decisions of the Refugee Board are made public.
In 2016 the average processing time to issue a decision in appeal proceedings before the Refugee Board was 119 days. The longest processing time took 2 years 8 months 27 days and the shortest 1 day.28
In 2016 the Refugee Board issued 1118 decisions.29 In 74 cases the Refugee Board decided to hear the applicant. There were no cases of hearing the witness.
As mentioned above the Refugee Board may annul the first instance decision; overturn it or confirm the decision of the Head of the Office for Foreigners. In the majority of cases the decisions of the Head of the Office for Foreigners were confirmed (908 decisions in 2016).30
After the negative decision or a decision on discontinuing the asylum procedure becomes final, the respective authority informs the Border Guard and the return proceedings can be launched.31
After the administrative appeal procedure before the Refugee Board, the latter’s decision can be further appealed to the Voivodeship Administrative Court in Warsaw within 30 days, but only points of law can be litigated at this stage.32 From mid-2015 there is no fee for the procedure. This onward appeal does not have a suspensive effect on a final administrative decision. However, asylum seekers can ask the court to suspend a decision for the time of the court proceedings, if the decision can cause irreversible harm. The court procedure is adversarial (both the Refugee Board and the asylum seeker are parties before the court). The ruling of the Voivodeship Administrative Court in Warsaw can itself be appealed to the Supreme Administrative Court by lodging a cassation complaint, based exclusively on the legal conditions foreseen in the law, also accompanied by a request for suspension of the administrative decision.33
As of May 2014, the Law on Foreigners separates asylum proceedings and return proceedings, which means that a return decision is no longer issued within the asylum procedure. However, it can be issued after the administrative asylum procedure finishes and before the Voivodship Administrative Court in Warsaw examines the appeal against the final administrative decision refusing protection to the applicant. This is considered problematic by many NGOs in Poland, which stress that the Refugee Board is an administrative body, not the court, so the asylum seeker should be granted access to an effective remedy before a court before return can be conducted.34 The jurisprudence of the Voivodeship Administrative Court in Warsaw and Supreme Administrative Court on this issue is not coherent. There have been rulings in 2015, in which it was stated that launching the return proceedings should be withheld until the court decides on the asylum case.35 However, the Court has also ruled the opposite36 and this line was followed in 2016.37
According to the statistics of the Refugee Board, in 2016 there were 345 complaints submitted to the Voivodeship Administrative Court against the decisions of the Refugee Board.38
A State legal aid system was introduced by the Law amending the Law on Protection on 13 November 2015.39 This is something new in Polish legislation (there is still no state-funded legal aid for citizens). The legal aid system covers legal information, provided by the employees of the Office for Foreigners in cases concerning revocation of protection in the first instance, and legal aid provided by advocates, legal counsellors and NGOs in the second instance. The latter will involve preparing appeal and providing legal representation in cases concerning refusal of protection, discontinuance of the procedure, and refusal of reopening the procedure, Dublin, inadmissibility of the application and revocation of protection. The system is managed by the Head of the Office for Foreigners who contracts advocates, legal counsellors and NGO lawyers.
In 2016 315 asylum seekers benefited from the system of free legal aid.40 Taking into account the overall number of appeals in 2016 – 120041 - this is definitely not much. Legal aid is provided by 230 legal counsellors, 228 advocates and 3 NGOs: LIA, The Rule of Law Institute and Halina Niec Legal Aid Centre.
There are also NGOs providing legal assistance through AMIF-funded projects, which have also provided this assistance under ERF-funded projects. However, AMIF funding is very unstable and practically has been suspended. In February 2016 one AMIF call for proposals was cancelled, after the announcement of the results had been postponed three times.42 In April two new calls were announced, but as of 31 December 2016 still no results have been given. The activities of these calls were supposed to be originally beginning in August 2016, as the call for proposals documentation specified. On 19 December 2016 19 NGOs sent letters to the Ministry of the Interior and to the European Commission Representation in Poland about this issue.43
From 2012 on and until mid-2015 free legal assistance for asylum seekers and people granted international protection was only provided through projects run by NGOs funded by the European Refugee Fund (ERF); 75% of the projects’ budget was covered by the ERF and there was a possibility for NGOs to request an additional 10% from the state budget, while 15% had to be provided by the organisation itself.
Projects for legal assistance funded through the ERF finished at the end of 2014. Some NGOs, such as LIA, had to reduce their activities from 1 January 2015.44 National authorities responsible for the implementation of the funds, after numerous requests from NGOs and information in the media, decided to issue an additional call for projects and the funds were made available from 1.01.2015 until the end of June 2015. Since then the situation is very unstable and there are delays in announcing and arranging for calls for proposals.
Generally NGOs providing legal assistance in Poland differ between one another: there are some specialised organisations, with extensive experience in the field, engaged also in strategic litigation and advocacy. For some others, providing legal assistance to asylum seekers is another component of their general assistance activities.45 In most cases, NGOs assist asylum seekers not only in the asylum process, but also in other legal proceedings and in solving every-day problems. Assistance related to the asylum procedure includes providing information and preparing relevant documents (appeals, applications, complaints) covering every stage of the procedure.46
Legal representation is provided only in some cases, as the organisations providing legal assistance generally lack resources. For instance, legal presence during the personal interview cannot be ensured and the assistance can cover only the administrative procedure (first and second instance) and submitting an onward appeal to the Voivodeship Administrative Court in Warsaw. Representation before this court and proceedings before the Supreme Administrative Court can be provided only by professional legal representatives (lawyers, legal counsellors). There is a general possibility to apply for a cost-free professional legal representation before these courts on the same rules that apply to polish citizens (i.e. insufficient financial resources). There is a form, in Polish, available in the court or on the court’s website (not in the offices of administrative authorities examining the claim). So although in practice legal representation is granted by the court, it is very doubtful that asylum seekers would benefit from it without the assistance from NGOs.In the absence of legal representation, applicants will receive the correspondence themselves. Since the appearance at the hearing is mostly not obligatory, the applicant may be served with the ruling after it is made.
Legal assistance provided by NGOs consists mainly of individual consultations during office hours.47 But only some projects involve the provision of legal assistance during visits to accommodation and detention centres. Generally asylum seekers in reception centres face practical obstacles in accessing legal assistance, as most of the reception centres are located in remote areas, while NGOs have their offices in the main cities of the four voivodeships (Mazowieckie, Małopolskie, Podlaskie and Lubelskie).48
Asylum seekers are informed about legal assistance provided by NGOs by the posters and leaflets in the Office for Foreigners, reception centres and detention centres as well as by the officers.
- 1. Article 34(1) Law on Protection, as amended in November 2015.
- 2. Article 34 Law on Protection, as amended in November 2015.
- 3. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB
- 4. Office for Foreigners, Commentary to the statistics for I half of 2015, available at: http://bit.ly/1EW04DT.
- 5. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB
- 6. Eurostat, Pending applications, September 2015 (rounded).
- 7. Article 36-38 Code of Administrative Proceedings.
- 8. Article 35 Law on Protection.
- 9. No data made available upon request on the average length of asylum procedure in both instances and on the backlog of cases in the first and second instance authorities.
- 10. Letter from the Head of the Office for Foreigners to HFHR from 27 August 2015 no BSZ-0811/1429/15/RW.
- 11. Ibid.
- 12. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
- 13. Article 44(1) and (2) Law on Protection, as amended in November 2015.
- 14. Information provided by the Office for Foreigners, Department of Asylum Procedures, 25 March 2014.
- 15. No data made available upon request on the number of cases in which the applicant was interviewed by the first instance authority.
- 16. Case of a Cameroonian woman, a torture survivor, handled by HFHR in 2012. Other anecdotal evidence was collected by HFHR.
- 17. Letter from the Head of the Office for Foreigners to HFHR from 27 August 2015 no BSZ-0811/1429/15/RW.
- 18. M. Tobiasz, Practices in interviewing immigrants. Legal implications (project funded by the Visegrad Fund) Report from Poland, 2011, available at: http://bit.ly/1O7Arap.
- 19. Letter from the Head of the Office for Foreigners, DPU-07-1410/2013 from 22 February 2013.
- 20. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
- 21. Letter from the Head of the Office for Foreigners to HFHR from 27 August 2015 no BSZ-0811/1429/15/RW.
- 22. Information obtained from the Office for Foreigners, 25 March 2014.
- 23. The case was handled by HFHR lawyer, decision of the Head of the Office for Foreigners was issued on 17 January 2014.
- 24. Interview with HFHR lawyers who shared their experience in representing asylum seekers before the Head of the Office for Foreigners.
- 25. Letter from the Head of the Refugee Board to HFHR from 27 August 2015 no DP-RURPW-02157-2015-KW.
- 26. Article 35(3) Code of Administrative Proceedings.
- 27. Article 130(1) and (2) Code of Administrative Proceedings.
- 28. The Refugee Board letter to HFHR from 25 January 2017 no BRZP.WR.4452.1.2017/BŁ.
- 29. The Refugee Board letter to HFHR from 25 January 2017 no BRZP.WR.4452.1.2017/BŁ.
- 30. The Refugee Board letter to HFHR from 25 January 2017 no BRZP.WR.4452.1.2017/BŁ.
- 31. Article 48a Law on Foreigners.
- 32. Regulated in the Law of 30 August 2002 on the proceedings before administrative courts, Journal of Laws 2012 pos. 270 (ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniuprzedsądamiadministracyjnymi, Dz.U. 2012, poz. 270).
- 33. Ibid.
- 34. See e.g. HFHR letter sent to the Court in The Hague in one of the Dublin cases, describing the problem, available at: http://bit.ly/1FPBj1v.
- 35. Supreme Administrative Court, Ruling from 1 April 2015 no II OZ 218/15, summary and the original ruling available at: http://bit.ly/1jK7oxI.
- 36. Following rulings of the Supreme Administrative Court: from 9 January 2015 no II OZ 1384/14, from 28 January 2015 no II OZ 41/15, from 21 April 2015 no II OZ 309/15 from 7 May 2015 no II OZ 378/15, from 8 May 2015 no II OZ 402/15, all cited in the ruling of the Voivodeship Administrative Court from 29 May 2015 no IV SA/Wa 1227/15 available at: http://bit.ly/1j98Mdb.
- 37. See e.g. ruling of the Supreme Administrative Court no II OZ 1081/15 available at (PL): http://bit.ly/2lOGQgT.
- 38. The Refugee Board letter to HFHR from 25 January 2017 no BRZP.WR.4452.1.2017/BŁ.
- 39. Article 69(c)-(m)Law on Protection, as amended in November 2015.
- 40. The Office for Foreigners letter to HFHR from 1 February 2017 no BSZ.WAiSM.0361.7.2017/TB.
- 41. The Refugee Board letter to HFHR from 25 January 2017 no BRZP.WR.4452.1.2017/BŁ.
- 42. More information available at: http://bit.ly/2lguY9N.
- 43. E-mail information received from the Polish Migration Forum on 7 January 2017.
- 44. Available in Polish at: http://bit.ly/1j98zXB.
- 45. A. Bergiel, K. Kubin, Bezpłatne poradnictwo prawne dla migrantów przymusowych – opis działalności organizacji pozarządowych. Wyniki badań jakościowych (Free legal aid forforced migrants- a description ofthe NGOs’ activities.The resultsof qualitative research) in J. Frelak, W. Klaus, ed.,Slabe ogniwa. Wyzwania dla funkcjonowania systemu ochrony uchodźców w Polsce (Weak links. Challenges for the functioning of the system of refugee protection in Poland), InstytutSprawPublicznych, 2011, 15.
- 46. A. Gutkowska, Ewaluacja funkcjonowania poradnictwa prawnego dla uchodźców – analiza prawna i praktyczna (Evaluation of the functioning of legal counseling for refugees- legal and practical analysis) in J. Frelak, W. Klaus, ed., Słabe ogniwa. Wyzwania dla funkcjonowania systemu ochrony uchodźców w Polsce, Instytut Spraw Publicznych, 2011, 144.
- 47. A. Bergiel, K. Kubin, op. cit., 34.
- 48. A. Gutkowska, op.cit, 136 and 146.