Access to the territory and push backs

In 2023, 1,511 persons applied for international protection at the Polish border crossing points placed at the EU external borders.[1] Excluding those who came by air or sea, there were 1,310 persons coming directly from the territory of Belarus, Russia or Ukraine.

Polish-Ukrainian border: The situation at the Polish-Ukrainian border crossing points has been subject to specific policy since the beginning of the conflict in Ukraine (see chapter on Temporary Protection).

Polish-Belarus border: The majority of applicants submitted an application for international protection at the Terespol border crossing (787 persons), the second biggest number was registered at Bobrowniki (95 persons), although cross-border movement through this post has been suspended since 10 February 2023. At the same time, the number of refusals of entry on the border crossings with Belarus was 2,425. As the situation on the Polish-Belarusian border showed in previous years, the actual number of persons seeking protection could have been much higher, since the problems with accessing the territory and the procedure on this border persisted for years, with a significant deterioration registered in 2021. Before 2021, persons applying at the border were mostly Russians with Chechen nationality. Since mid-2021 the number of asylum seekers and migrants seeking to enter Poland from Belarus significantly increased. Belarus facilitated irregular migration to the EU in response to the EU sanctions,[2] while Poland refused to provide access to asylum procedures to those in need. The Border Guards started carrying out pushbacks by immediately sending back to Belarus those who managed to cross the border. In this context, national law was amended to include rules that would facilitate collective expulsions (see below, National jurisprudence),[3] which are still in force at the time of writing. Pushback practices continued throughout 2023, with the border being increasingly militarised.[4]

Testimonies collected by civil society organisations for 2023 include reports on the use of verbal and physical violence by the Border Guard officers towards migrants seeking to access Polish territory, such as use of firearms (the case of a Syrian national shot in the back is currently under investigation) and pepper-spray launchers.[5] HFHR reported that at least 60 persons were found dead on both sides of the border since the beginning of the crisis in August 2021 (see also Healthcare).[6] Missing persons and cases of family separation were also reported.

Médecins Sans Frontières (MSF) also confirmed that throughout 2023, their doctors treated injuries and harm caused to migrants who were pushed back at the Belarusian border.[7] According to the MSF report, the 5.5m-high razor-wired, electronically surveyed wall at the Belarusian border, completed in 2022, increased the risk of serious, and potentially deadly, injuries for those seeking protection in the EU, such as fractures and deep cuts of those who climbed the wall or fell off it.[8]

In addition, MSF reported cases of people – including children and pregnant women – who were trapped in the area between the two borders (‘death zone’) for protracted periods, exposed to hunger, thirst and violence. These cases date back to 2021, but this area remains inaccessible to civil society and medical organisations, seriously restricting the possibilities to deliver care and assistance to those that try crossing the border through the woods.[9] Moreover, humanitarian assistance provided by activists in the near-border area continued to be criminalised.[10] For instance, when the group of activists threw food and clothes to the migrants on the other side of the wall, they were punished by the Border Guard, but the court held they did not act contrary to the regional law.[11]

At the end of 2023, parliamentary elections were won by the opposition. Civil society organisations had hoped this would be followed by a change in the national border policy. However, no significant changes were observed so far.[12] On 18 December 2023 and on 9 February 2024 the Commissioner for Human Rights asked the Ministry of Internal Affairs and Administration to repeal the law allowing summary removals at the borders, thus enabling those in need to apply for international protection.[13] The Ministry answered that the laws will be subject to amendments, following the analysis of jurisprudence in this regard and the amendments will allow for individual assessment of the migrant’s situation – but further details regarding the content and timing for the amendments have been publicly discussed.

In January 2024, the District Prosecutor’s Office in Warsaw formally started an investigation aimed at assessing whether the Border Guard had exceeded its powers in one of the early case of people apprehended at the border in August 2021 in Usnarz Górny, for which the ECtHR granted interim measure (complaint no 42120/21) that were not implemented by the Border Guards. The case was submitted to the prosecutor in October 2021.[14]

International jurisprudence: Until the end of January 2024, the ECtHR communicated 11 cases concerning pushbacks at the Polish-Belarusian border to Poland.[15] They concern 23 applications and 84 third-country nationals (16 minors), mainly originating from Afghanistan (37 persons), Iraq (26) and Syria (16). The applicants invoke inter alia violations of Articles 3, 13 of the ECHR and Article 4 of the Protocol no. 4 to the ECHR, but also Article 2.[16]

The ECtHR has previously delivered judgements against Poland, concerning collective expulsions at the Poland-Belarus border before the 2021 crisis. However, according to NGOs, these cases have not been properly executed. In March 2024 the Committee of Ministers again looked into the execution of the judgement M.K. and Others against Poland from 2020 (app. no 40503/17, 42902/17 and 43643/17), which concerned applicants at the Polish-Belarusian border that intended to submit their application for international protection, but were repeatedly refused entry.[17] Since 2020, the ECtHR ruled in 4 more cases that Polish actions at the Belarusian border were unlawful.[18] In the opinion of the NGOs, the latter four judgements have not been satisfactorily implemented.[19] Poland did not ensure an effective access to procedure and protected those in need from collective expulsions. To the contrary, the situation on the Belarusian border deteriorated in the recent years, with the exact number of persons affected by the pushback policy implemented at the Polish-Belarusian border being unknown. The numbers of the decisions on a refusal of entry, decisions on an immediate removal and preventions of irregular entry, give only a partial picture. The UN Special Rapporteur on Human Rights of Migrants in April 2023 confirmed that “it is challenging to obtain accurate data on the full scope of pushback practices in Poland”.[20]

Domestic jurisprudence: Two legal amendments introduced in response to the crisis at the Belarusian border in 2021 have been questioned as a result of litigation before domestic courts, but remain in force as of March 2024. The first one is Regulation on cross-border movement,[21] authorizing the Border Guard to turn back third-country nationals to the border line solely based on a verbal instruction and the Law on Foreigners as amended in October 2021 (specifically Article 303b of the Law on Foreigners)[22] which allows the Border Guard to issue immediately enforceable ‘orders to leave the Republic of Poland’ with regards to third-country nationals apprehended after the irregular border crossing.

It is important to note that according to HFHR, the basis upon which the Border Guard decides which procedure is applied in a given case are unclear, as it is often not possible to understand whether it was considered the person fell under the regime of the Ordinance (Regulation) or the amended Law on Foreigners (Article 303b).[23] However, according to a report realised by ECRE, in 2022 the Regulation  was more frequently used in cases of persons apprehended after an irregular border crossing.[24]

According to HFHR, by July 2023, all judgments issued by the Voivodeship Courts on pushbacks are coherent and confirm that the way of returning migrants to Belarus by the Polish Border Guard used in most cases was unlawful, regardless of whether the return was based on the Regulation or on the Law on Foreigners.

In four of its judgments,[25] The Voivodeship Administrative Court in Warsaw, revoked orders to leave Poland issued by the Border Guard Commander based on the amendments to the Law on Foreigners. In all four cases, the foreigners were intercepted shortly after crossing the border from Belarus. The court assessed that because of improperly collected evidence, it was impossible to determine whether the foreigners expressed a wish to apply for international protection in Poland. The court pointed out that only properly conducted proceedings can guarantee compliance with the principle of non-refoulement and obligations under the UN Refugee Convention, the EU asylum acquis, and the European Convention on Human Rights.

In another three cases,[26] the Provincial Administrative Court in Bialystok held that the Border Guard’s action of escorting foreigners to the border with Belarus under the provisions of the Regulation on cross-border movement was ineffective. As the Court pointed out, after the Border Guard officers had found out about the irregular crossing of the Polish border (which is also the external border of the EU), they should have – depending on the situation – either initiated proceedings to oblige the applicant to return or allowed the applicants to formally apply for international protection as soon as possible. At the same time, the Court, in its judgments, held that the Regulation was issued in excess of statutory authority and, as such, should not be applied. This is because the Minister can only restrict or suspend traffic at border crossings but does not have the authority to regulate the situation of people who have crossed the borders outside the territorial scope of a border crossing.

In some relevant 2023 judgements,[27] the Court in Bialystok added that because there is no record of the Border Guards’ actions based on the Regulation on cross-border movement in the official files, the only evidence available comes from testimonies of the persons concerned, and there is no reason to consider them not reliable.

Still, domestic case law appears to have had no influence on the practice of the relevant authorities.

Official statistics: Only since 5 July 2023 the Border Guard collects data concerning persons turned back to the border on the basis of the Regulation on cross-border movement.

According to these statistics, for the period between 05 July 2023 and 31 December 2023, 6,055 persons were returned to Belarus on the basis of the Regulation on cross-border movement. 8 persons were returned to Belarus on this basis in the period 01.01.2024 – 05.02.2024. In 2023, 1,295 persons were issued orders to leave Poland on the basis of the amended Law on Foreigners.

As for the number of decisions refusing entry issued at the Belarusian border, the number did not significantly change compared to the previous year, with 2,425 decisions issued in 2023 compared to 2,623 in 2022. Only 34 persons appealed against these decisions in 2023. As stated above, this information gives only partial picture on the number of persons seeking to access Poland in 2023. The actual number of persons in need of international protection who were present at the Belarusian border is unknown.

Border monitoring. Official border monitoring is based on an agreement between UNHCR for Central Europe and the Border Guards Headquarters of 21 October 2009. The monitoring visits are to be conducted by the NGO Halina Niec Legal Aid Center and should, according to UNHCR, take place once a month. The reports from these visits are not publicly available. UNHCR indicated that its monitoring activities are conducted at official border crossing points, Border Guard posts and registration centres along the Polish-Belarusian border.[28] The Border Guard confirmed that in 2023, UNHCR monitoring of border posts – especially on the Belarusian border – was constant.[29] On the other hand, one of the recommendation of the Special Rapporteur was to grant full access to the border area by Poland and Belarus to civil society organisations and independent monitoring mechanisms as “it is important to ensure that a strong and independent role is played by local civil society in both countries, as well as to allow international organisations to conduct in situ monitoring”.[30]

In addition, in the past years, independent monitoring visits to the border crossing point in Terespol were held by the Commissioner for Human Rights,[31] Amnesty International,[32] and Human Rights Watch[33] as well as other local NGOs. Already before the current situation at the border with Belarus, they confirmed the existence of grave systemic irregularities in accepting applications for international protection at the border.[34]

Readmission agreements. Poland signed the readmission agreements with the EU Member States (both bilateral and multilateral). There were no new agreements signed in 2023.[35]

Legal access to the territory

There are no means (for example, in the form of corridors or resettlement or relocation) beyond family reunification to legally access the Polish territory for persons with protection needs.

The Polish government announced on 1 June 2023 that it will not cooperate with the mandatory migrant relocation scheme proposed in the EU Pact on Migration and Asylum.[38] In April 2024, the new government expressed its support for this position.[39]

[1] Information provided by the Border Guard on 18 March 2024. According to statistics provided by the Border Guard, the overall number of persons applying for international protection in Poland was 8,875, rather than 9,513.

[2] Fundamental Rights Agency, Migration: Key fundamental rights concern, Quarterly Bulletin 3, available (EN) at: https://bit.ly/3uEvu4G.

[3] For the detailed description of legislative amendments see AIDA Country Report on Poland – 2021 Update.

[4] Protecting Rights at Borders (PRAB), Pushbacks at Europe’s borders – a continuously ignored crisis, January 2024, report available at: https://bit.ly/3vamuXG, 7.

[5] Protecting Rights at Borders (PRAB), Pushbacks at Europe’s borders – a continuously ignored crisis, January 2024, report available at: https://bit.ly/3vamuXG, 9.

[6] Information provided by HFHR, see: https://bit.ly/3JObHGl.

[7] Medecins Sans Frontieres, Death, Despair and Destitution. The Human Costs of EU’s Migration Policies, February 2024, report available at: 29

[8] Ibidem.

[9] Ibidem.

[10] Information provided by the Ocalenie Foundation, see: https://bit.ly/3UNo4ZH.

[11] HFHR, Helping is legal. Court acquits people who brought humanitarian aid over border wall, 20 October 2023, available at: https://bit.ly/3QyPIHr.

[12] Fundacja Ocalenie, komunikat prasowy 9 stycznia 2024, 101 organizazji o 550 osób apeluje do premiera o wstrzymanie pushbackow, 9 January 2024, available at: https://bit.ly/3UNDEEI.

[13] Polish Ombudsman, Sprawa pushbacków: MSWiA informuje RPO o swych działaniach, available at: https://bit.ly/3JMKhkj.

[14] Fundacja Ocalenie, Prokuratura wszczyna śledztwo wobec SG!, 9 January 2024, available at: https://bit.ly/3wrkCuj.

[15] SIP, Communication of the Association for Legal Intervention on the execution of the M.K and Others v. Poland judgment, 12 February 2024, available at: https://bit.ly/4bqukMh.

[16] M. Łysienia, Pushbacki w Polsce w ocenie Europejskiego Trybunału Praw Człowieka, Laboratorium Migracji, 11 August 2023, available in Polish here: https://bit.ly/3UxgD7o.

[17] Information about the expert meeting, 29 March 2024, available at: https://bit.ly/3wlXrla.

[18] See A.B. and Others v. Poland (ECtHR, judgement of 30 June 2022, case of A.B and others v. Poland (application no. 42907/17), available at: https://bit.ly/41AmLO3) and A.I. and Others v. Poland (ECtHR, judgement of 30 June 2022, case of A.I. and others v. Poland (application no. 39028/17), available at: https://bit.ly/3MTYMpj) – in both cases, the ECtHR found a violation of Articles 3 and 13 of ECHR and Article 4 of Protocol no. 4 to the Convention, in the first of the two cases ECtHR also found a violation of Article 34 of ECHR.

[19] SIP, Sytuacja na granicy polsko-białoruskiej się pogorszyła, choć rząd twierdzi inaczej – interweniujemy w sprawie niewykonania przez Polskę wyroku ETPCz, 20 Feburary 2024, available at: https://bit.ly/3WtEojy.

[20] Visit to Poland – Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, 21 April 2023, available (EN) at: https://bit.ly/44qUi05.  

[21] Ordinance of the Minister of Internal Affairs and Administration of 20 August 2021 amending the Ordinance on Temporary Suspension or Restriction of Border Traffic at Certain Border Crossings (Journal of Laws 2021, item. 1536).

[22] Article 303b in conjunction with Article 303(1)9a of the Law on Foreigners, introduced by the Law of 14 October 2021 amending the Law on Foreigners and other Acts of Law (Journal of Laws 2021, item. 1918).

[23] HFHR, Legal brief on judgements in cases involving expedited returns of migrants to Belarus, December 2022, page 1, footnote 1, available (EN) at: https://bit.ly/3L2vWAz.

[24] ECRE, Seeking refuge in Poland. A fact-finding report on access to asylum and reception conditions for asylum seekers, February 2023, page 11, available (EN) at: https://bit.ly/3KFLHgl.

[25] Judgment of the Provincial Administrative Court in Warsaw no IV SA/Wa 420/22 of 26 April 2022, judgement no IV SA/Wa 471/22 of 27 April 2022, judgment no. IV SA/Wa 615/22 of 20 May 2022; judgment no IV SA/Wa 772/22 of 27 May 2022, see: HFHR, Legal brief on judgements in cases involving expedited returns of migrants to Belarus, December 2022, available (EN) at: https://bit.ly/3L2vWAz

[26] Judgments of the Provincial Administrative Court in Bialystok no II SA/Bk 492/22, 493/22 and 494/22, all from 15 September 2022, see: Ibidem.

[27] Judgements of the Voivodeship Court in Bialystok from 13 April 2023, II SA/Bk 145/23 and from 30 May 2023, II SA/Bk 244/23.

[28] ECRE, Seeking refuge in Poland. A fact-finding report on access to asylum and reception conditions for asylum seekers, February 2023, available (EN) at: https://bit.ly/3KFLHgl, page 16.

[29] Information provided by the Border Guard, 18 March 2024.

[30] Visit to Poland – Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, 21 April 2023, available (EN) at: https://bit.ly/44qUi05.

[31] Commissioner for Human Rights paid three unannounced visits to Terespol border crossing on 11.08.2016, 15.05.2018 and 23.09.2019, the report of the last visit available (in Polish) at: https://bit.ly/31nzrtK .

[32] Amnesty International Poland, Tam i z powrotem: Brześć–Terespol, 7 December 2016, available at: https://bit.ly/2GMcEOW .

[33] Human Rights Watch, Poland: Asylum Seekers Blocked at the Border, 1 March 2017, available at: https://bit.ly/2GMcGq2 .

[34] Helsinki Foundation for Human Rights, Access to asylum procedure at Poland’s external borders, Current situation and challenges for the future, Warsaw April 2019, available at: https://bit.ly/40e9fyE. See also: The Commissioner for Human Rights, Input of the Commissioner for Human Rights of the Republic of Poland for the Special Rapporteur’s on the Human Rights of Migrants report on pushback practices and their impact on the human rights of migrants from 28 January 2021, available at: https://bit.ly/3u2J3bx

[35] The Border Guard Headquarters’ letter to HFHR, 21 March 2023.

[36] Agreement related to the readmission of persons in an irregular situation, Brussels, 29 March 1991.

[37] European agreement on transfer of responsibility for refugees, Strasburg, 16 October 1980.

[38] Euractiv, Poland opposes EU Commission’s migrant relocation scheme, 1 June 2023, available at: https://bit.ly/4bqvxTP.

[39] Euractiv, Tusk vows to ‘protect’ Poland against EU migrant relocation, 11 April 2024, available at: https://bit.ly/4bueRep.