Until 1 May 2014, there was only one alternative to detention provided under Polish law.1 An asylum seeker (or a person on whose behalf an application for asylum was made) could be ordered, by means of the decision rendered by the Head of the Office for Foreigners, to stay in a specified place, which they could not leave without permission. An asylum seeker could also be required to report to the authority indicated in the decision at specified intervals of time. The above mentioned decision could be issued if:
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An asylum seeker had not been placed in the detention centre because it could cause a serious threat to his or her life or health; or
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An asylum seeker was released from the detention centre on the basis of the Head of the Office for Foreigners’ decision issued because the evidence of the case indicated that the asylum seeker meets the conditions for being recognised as a refugee or for being granted subsidiary protection.2
The problem with this measure was that detention was a measure “of first resort” and only if deemed impossible could the above mentioned alternative be applied instead. Moreover it was not used in practice.3
The above mentioned alternative is still applicable, but the Law on Protection, in force since 1 May 2014, introduces additional alternatives to detention for asylum seekers. These include:
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An obligation to report;
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Bail options;
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The obligation to stay in a designated place.
SG can use more than one alternative in the case of any TCN.4 Alternatives can be applied by the SG which apprehended the asylum seeker concerned or by the court (subsequent to a SG’s decision not to apply alternatives and who have submitted a motion for detention to the court).5 Until 12 November 2015 the law did not explicitly require a proof that alternatives to detention cannot be effectively applied before asylum seekers can be detained. From 13 November 2015 an asylum seeker can be detained only if the alternatives to detention cannot be applied.6 In practice asylum seekers are placed in detention, and alternatives to detentions are not properly justified and explained.
In 2016, alternatives to detention were used in the case of 1411 TCNs (including asylum seekers and returnees):
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1,193 persons were obligated to report;
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3 persons had bail options;
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1,286 persons were obligated to stay in a designated place.7
- 1. Article 89c Law on Protection (applicable until 1 May 2014).
- 2. Ibid.
- 3. Letters from the Head of the Office for Foreigners BWM-08-502/2012/AWJ from 1 August 2012 and BWM-08-03/2013/RW from 10 January 2013.
- 4. Article 88(1) of the Law on Protection, as amended in November 2015.
- 5. Articles 88(2) and 88b(2)-(3) Law on Protection, as amended in November 2015.
- 6. Article 88a(1) Law on Protection, as amended in November 2015.
- 7. Letter from the Border Guard KG-OI-III.0180.5.2017.AP from 19 January 2017.