Applicants who need special treatment are defined in particular as:[1]
- Minors;
- Disabled people;
- Elderly people;
- Pregnant women;
- Single parents;
- Victims of human trafficking;
- Seriously ill;
- Persons with mental disorders;
- Victims of torture;
- Victims of violence (psychological, physical including sexual).
Screening of vulnerability
Identification of vulnerable applicants is conducted by the Border Guard while registering the application for international protection and by the Office for Foreigners. Identification is also conducted by the Border Guard for detained international protection applicants (see Detention of vulnerable applicants).
The Head of the Office for Foreigners is obliged to assess whether these persons need special treatment in the proceedings regarding granting international protection or social assistance. To make this assessment, the authority can arrange for a medical or psychological examination of the applicant, funded by the state. In case the Head of the Office for Foreigners does not arrange for the medical or psychological examination, it is obliged to inform the person that might require special treatment that they can arrange for such an examination themselves and bear the costs. If a person does not agree to be subjected to medical or psychological examination, they should be considered as a person that does not require special treatment. The Head of the Office for Foreigners should make the assessment immediately after the submission of the application for international protection and at any other time until the procedure is finished, in case any new circumstances arise.[2]
Since 2017, in Biala Podlaska, near the reception centre, there has been a separate medical unit where initial verification of asylum seekers’ health is conducted. Both the procedure and medical unit are called “epidemiological filter”.[3] The Office for Foreigners has stated that as of 16 June 2019, every asylum seeker in the reception centre who undergoes the mandatory epidemiological filter procedure will also undergo a vulnerability screening. This is envisaged in the contract for health services for asylum seekers from 4 June 2019.[4]
Overall, NGOs confirm that the system of identification envisaged in the law does not work in practice. Persons who experienced violence, especially torture survivors, are expected to present evidence they hardly can obtain. At the same time, the authorities seldomly decide to ask for an expert opinion as a part of the procedure.[5] In one of the cases reported by SIP, both authorities at first and second instance claimed that the tortures that the applicant experienced had not been proven by medical examination. The applicant concerned had been transferred to Poland on the basis of the Dublin Regulation and was is possession of an opinion from a psychologist from the sending country confirming that they had been subjected to torture, that was ignored. In another case the authorities also ignored the fact that the applicant had been victim of torture, despite the visible signs of violence on their body. When submitting a subsequent application, the applicant presented a confirmation from the psychiatrist that she suffered from PTSD and a confirmation of visible signs of violence on their body. This evidence was dismissed and the application was considered inadmissible for presenting no new circumstances or evidence.[6] In 2021, the Supreme Administrative Court ruled on the case of an applicant who was a victim of torture in his country of origin. The administrative authorities did not accept as evidence the documents provided by the applicant and thus the Court annulled the decisions.[7] The Court also stressed that the authorities ignored the psychological opinion, in which it had been certified that the applicant had problems with memory and concentration and that he had been diagnosed with PTSD. The Court also highlighted that in the case file, there was no opinion of psychologist taking part in the interview.
Identification of vulnerable applicants is also conducted by the Border Guard while registering the application for international protection (the Border Guard assesses whether an applicant may belong to one of these two groups: victims of trafficking in human beings or persons subject to torture).[8] With regard to victims of trafficking in human beings, the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) after its 2023 evaluation on Poland suggested enabling specialised NGOs to have regular access to facilities for asylum seekers and administrative detention centres for migrants (see also Special reception needs of vulnerable groups).[9]
When applying to the court to place an applicant in detention, the Border Guard is also obliged to identify victims of violence and other persons for whom detention will cause a threat to life or health. For this purpose, the Border Guard implemented an algorithm, criticised by the Commissioner for Human Rights and NGOs (see Detention of vulnerable applicants).
The Office for Foreigners does not collect statistics on the number of asylum seekers identified as vulnerable, which was confirmed during the UN CAT report on Poland in 2019.[10] According to a study for 2019, published in 2020, in which the Office for Foreigners representatives were interviewed, the largest group are individuals who were subject to physical or psychological violence.[11] However, for this report, the Office for Foreigners reported that in the fourth quarter of 2019, there were 274 asylum seekers identified as requiring special treatment, and only 1 person was identified as a victim of violence.[12] In 2022 and 2023, the Office responded that there were no statistics in this regard.
According to the Office for Foreigners, identification of vulnerable applicants takes place also during regular psychological counselling, available in every reception centre and at the Office for Foreigners (see Health Care).[13]
Age assessment of unaccompanied children
Polish law provides for an identification mechanism for unaccompanied children.[14] An asylum seeker who claims to be a child, in case of any doubts as to their age, may have to undergo medical examinations – with their consent or with the consent of their legal representative – to determine their actual age. There are no additional criteria set in law.
In case of lack of consent, the applicant is considered an adult. The results of the medical examination should contain the information if an asylum seeker is an adult. In case of any doubts, the applicant is considered a minor.[15] Undertaking a medical examination is triggered by the authorities and shall be ensured by the Border Guards.[16] The law states that examination should be done in a manner respecting the dignity and using the least invasive technique.[17]
The age assessment methods used in 2023 as reported by the Border Guard regional divisions were mostly X-ray of the wrist or dental examination.[18]
In practice, applicants are subject to age assessment although there are no justified grounds to suspect that the applicant is not a child. There are reports that the Border Guards qualifies an unaccompanied minor whenever they do not have a passport.[19] Also, the Border Guard decides who will establish the age of the minor and mostly it is a single specialist who does not take into account all other aspects of child development (e.g. a dentist who focuses solely on dental examination or radiologist who performs solely X-ray examination of the wrist). HFHR reported that in some cases, the examination is not preceded by any interview with the person concerned.[20]
National Prevention Mechanism also critically assessed the age assessment procedure in the Polish law, which is strictly medical and does not take into account psychological, developmental or environmental factors.[21] The consequences of wrongful age assessment can amount to detention of a child applying fort international protection, which otherwise would not be detained (see: Detention of children).
In 2023, SIP managed to successfully question before the court the outcome of age assessment of a Somalian girl. The age assessment was based on X-ray of wrist, although she was in possession of a birth certificate from the country of origin confirming she was a minor. As a result of an incorrect age assessment, the girl had spent 4 months in detention – unlawfully.[22] According to SIP, method of age assessment used in this case is outdated, not taking into account the differences in body build of people from other parts of the world.[23]
[1] Article 68(1) Law on Protection.
[2] Article 68(3)-(6) Law on Protection.
[3] Epidemiological filter was realised under the Swiss Polish Cooperation Programme, see: https://bit.ly/3mMGtDd.
[4] Information provided by the Office for Foreigners on 9 April 2020.
[5] SIP, Raport z działalności Stowarzyszenia Interwencji Prawnej w 2022 roku, available at: https://bit.ly/3UOooaD, 22.
[6] Ibidem.
[7] The Supreme Administrative Court judgement, II OSK 373/21, see: Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2021 r. [Report SIP in action. Rights of foreigners in Poland in 2021], available (PL) at: https://bit.ly/43Cozbo, 29-30.
[8] Ordinance of 5 November 2015 on the asylum application form (Rozporządzenie Ministra Spraw Wewnętrznych z dnia 5 listopada 2015 r. w sprawie wzoru formularza wniosku o udzielenie ochrony międzynarodowej), available (in Polish) at: http://bit.ly/1hljviW.
[9] GRETA, Evaluation Report Poland – Third Evaluation Round, 9 June 2023, available at: https://bit.ly/3J3MRlt.
[10] OHCHR, Committee against Torture concludes its consideration on the report of Poland, 24 July 2019, available at: https://bit.ly/2Sgy10j.
[11] Pachocka, M. and Sobczak-Szelc K., ‘Refugee Protection Poland – Country Report’, Multilevel Governance of Mass Migration in Europe and Beyond Project (Horizon2020), January 2020, available at: https://bit.ly/2U1A9uL, 69.
[12] Information provided by the Office for Foreigners on 9 April 2020.
[13] Information provided by the Office for Foreigners, 1 February 2018.
[14] Article 32 Law on Protection.
[15] Article 32(5) Law on Protection.
[16] Article 32 Law on Protection.
[17] Article 32(4) Law on Protection.
[18] E.g. letter of the Regional Division of the Border Guards in Krosno Odrzanskie, no NO-OI-II.0180.6.2024 from 23 February 2024.
[19] M.Poszytek, dr n. med. M. Sługocki, Metody oceny wieku chronologicznego w postępowaniach z udziałem cudzoziemców, HFHR, December 2023, available (PL) at: https://bit.ly/3WpKSQo, 7-8.
[20] Ibidem.
[21] The Commissioner for Human Rights, Report on the situation of foreigners in detention centres during the crisis on Polish-Belarussian border, [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi. Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur], June 2022 available in Polish at: https://bit.ly/3URYZek.
[22] SIP, Mamy wpływ! Podsumowanie najważniejszych działań SIP w 2023 r., report summarising activities in 2023, https://bit.ly/3wrxdO7, 6.
[23] Ibidem.