Alternatives to detention

Asylum applicants are placed in a detention centre if alternatives to detention cannot be used and for the following reasons:[1]

1. In order to establish or verify their identity;
2. To gather information, with the asylum applicant’s cooperation, connected with the asylum application, which cannot be obtained without detaining the applicant and where there is a significant risk of absconding;
3. In order to make or execute the return decision, if an asylum applicant had a possibility to claim asylum previously and there is a justified assumption that they claimed asylum to delay or prevent the return;
4. When it is necessary for security reasons;
5. In accordance with Article 28 of the Dublin III Regulation, when there is a significant risk of absconding and immediate transfer to another EU country is not possible.

A “risk of absconding” of the asylum applicant exists particularly if they:[2]

• Do not have any identity documents when they apply for asylum;
• Crossed or attempted to cross the border illegally, unless they are so-called “directly arriving” (i.e. arrived from the territory where they could be subject to persecution or serious harm) and they submitted an application for granting refugee status immediately and they explain the credible reasons of illegal entry;
• Entered Poland during the period for which their data were entered into the list of undesirable foreigners in Poland or to the Schengen Information System in order to refuse entry.

Detention is possible in law and in practice in all asylum procedures, and since 2021, it is frequently applied especially in case of unlawful crossing at the Polish-Belarusian border.

There are concerns that detention is not used as a measure of last resort and is often applied or prolonged automatically.[3] Additionally the foreigners in most cases are not represented by professional lawyers-attorney at law or advocates and the courts rely on the Border Guard’s applications, which omit arguments that could indicate that detention is pointless or unjustified. Border Guards are treated by the courts as experts in migration, which is one of the reasons why their interpretation of the law is accepted by courts.[4] The research also shows that Border Guards’ applications on detention presented to the courts did not contain information about contraindications to placing the migrants in detention.[5] In August 2021 alone, 1,089 persons were placed in detention centres in Poland. In 2024, 2,215 foreigners were reported as placed in detention in 5 out of 6 detention centres.[6]

According to relevant research, the Border Guard appears to give priority to internal regulations (instructions, circulars, recommendations issued by their superiors) above national law.[7] Submission of requests on prolonging the stay in detention by Border Guard is generally considered standard and normal practice. It is not accompanied by a deeper reflection on the need for further detention.[8]

[1] Articles 87(1) and 88a(1) Law on Protection.

[2] Articles 87(2) and 88a(1) Law on Protection.

[3] ECtHR, Nikoghosyan and others v. Poland, Application no. 14743/17, available here; Information provided by FIPP, Ocalenie Foundation, March 2024; SIP, 11 September 20224, ‘PLN 50,000 compensation for wrongful detention in a guarded center for an Iraqi refugee’, available in Polish here. Regional Court in Łódź, XVIII Ko 30/23, May 15, 2024, mentioned in SIP, ‘PLN 12,000 for 53 days of illegal detention in a guarded center for foreigners’, 24 June 2024, available in Polish here; HFHR, ‘Court awards £40,000 compensation to Ethiopian man for wrongful placement in SOC for 179 days’, 11 December 2024, available in Polish here.

[4] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 30-32, 87,121.

[5] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 162.

[6] There is no central system to count persons deprived of liberty, so it is possible that some people may be counted multiple times, Information from different Border Guard divisions in 2025.

[7] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 121.

[8] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 165.