Access to the territory and push backs

Poland

Country Report: Access to the territory and push backs Last updated: 16/04/21

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Independent

Border monitoring is enforced on the basis of an agreement between UNHCR for Central Europe and the Border Guards Headquarters of 21 October 2009. The monitoring visits are conducted by the NGO Halina Niec Legal Aid Center. According to UNHCR, visits take places 12 times a year, i.e. once a month – although in 2020 they were limited to 5 due to the COVID-19. They are carried out at both border crossing points in Terespol (Belarusian border) and Medyka (Ukrainian border). Sometimes the visits cover interviews with foreigners at the border. The visits are mostly announced, but may also sometimes be unannounced.[1] The reports from these visits are not publicly available.

The previous updates of this report available here referred to persisting cases of persons denied access to the territory at the border-crossing point in Terespol which has been the main entry point in Poland for asylum seekers with a significant deterioration of the situation in 2016.

Throughout the past years, independent monitoring visits to the border crossing point in Terespol were held by the Commissioner for Human Rights,[2] Amnesty International,[3] and Human Rights Watch[4] as well as other local NGOs such as the Legal Intervention Association (SIP)[5] and Helsinki Foundation for Human Rights (HFHR).[6] They confirmed the existence of grave systemic irregularities with accepting applications for international protection at the border. There have been numerous reports on this situation[7] and several cases have been brought before the ECtHR (see below). The most recent information on this issue was gathered for the purpose of the submission to UN Special Rapporteur on the human rights of migrants on push back practices, prepared by a Commissioner for Human Rights,[8] and the Consortium of NGOs.[9]

Most importantly, on 23 July 2020, the ECtHR published its judgment in M.K. and Others v Poland,[10] concerning the repeated refusals of Polish border authorities to enable persons in need for protection to apply for international protection.[11] The facts of the case represent the very substance of the problem at the Polish border. The case concerned various applications submitted by Russian nationals, including children, who attempted to cross the Terespol border between Poland and Belarus on multiple occasions. The applicants, who were attempting to flee from Chechnya, stated that they feared for their safety and that they wished to apply for international protection. They were turned away by Polish border authorities on the basis that they had not stated that they would face persecution in Chechnya.

The Court concluded that the Polish authorities had failed to review the applicants’ requests for international protection, in compliance with their procedural obligations, contrary to Article 3 ECHR. Moreover, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, the Polish authorities knowingly exposed the applicants to a serious risk of chain-refoulement and treatment prohibited by Article 3 ECHR in Belarus. Having determined that the applicants’ removals amounted to expulsion, the Court had to assess whether it was collective in nature. It noted, inter alia, that while the applicants had been interviewed by border authorities and individual decisions had been issued for the applicants, these decisions did not adequately reflect the applicants’ fear of persecution and had, instead, emphasized arguments supporting the identification of the applicants as economic migrants. Moreover, the Court identified that this was a common practice of misrepresenting statements of individuals attempting to cross the border. It therefore concluded that the decisions to turn away the applicants were taken without proper regard to individual situations amounted to a collective expulsion contrary to Article 4 Protocol No. 4. The Court added that the applicants did not have access to effective remedies to challenge the refusal of entry amounted to a violation of Article 13 ECHR in conjunction with Article 3 and Article 4 Protocol No. 4.

It is also worth noting that the Polish authorities refused to implement interim measures granted by the Court in this case, which required the authorities to refrain from returning the applicants to Belarus. The Court found that it was contrary to Article 34 ECHR. The judgement is final.

The ECtHR communicated also other cases against Poland, all concerning the same issue: D.A. and others v. Poland (application no 51246/17), Sherov and others v. Poland (application no 54029/17), to be examined together with three other applications (no 54117/17 Saygoziev v. Poland; no 54128/17 Salimov v. Poland and no 54255/17 Mazhitov v. Poland).[12]

Despite the ECtHR judgement, repeated reports and interventions, the Polish government still denies unlawful practices at the border.[13] Contrary to the ECtHR findings, the government states that the applicants in the M.K. and others’ case were economic migrants and they did not ask for international protection. They were not within the Polish territory when the interim measure was granted by the ECtHR, so it could not have been applied, because interim measure cannot constitute a basis for entry or for an application for international protection.[14]

With pro bono assistance of lawyers, the cases of push backs were also brought before the domestic courts. There have been 25 judgements delivered between 2015 and 2018 by the Supreme Administrative Court and all of these cases resulted in revoking administrative decisions on refusal of entry issued by Border Guards.[15] The Court indicated in numerous cases that interviews conducted at the border must be recorded in the form of protocols signed by both Border Guard officers and foreigners.[16] Although the administrative courts annulled the unlawful decisions on the refusal of entry, in most of the cases administrative proceedings were discontinued by the decisions of the courts (due to absence of the applicant). According to the instructions in the judgements, the proceedings on refusal of entry cannot be reopened and re-examined, because there is no case as such for the time being (as the proceedings were discontinued). Once the applicant arrives again at the border, new proceedings are initiated. If there is a new proceeding concerning the refusal of entry, the judgement of the court is not applicable in this case, even if it concerns the same person. This means that applicants do not gain the right to enter Poland if they arrive at the border again, even after a judgement in their favour. At the same time, the Ministry of the Interior and the Administration refused to introduce amendments to national law to ensure its compliance with the established case-law of administrative courts.[17]

The COVID-19 pandemic and limitations on cross border movement added further obstacles to accessing international protection in Poland.[18] As the Commissioner for Human Rights pointed out, persons intending to apply for international protection were not included in the regulation of the Ministry of Interior and Administration of 13 March 2020 on the temporary suspension or limitation on border traffic at specific border crossing points as persons allowed to enter Poland during the pandemic, which did not guarantee access to procedure. Also, rail connections were suspended, including the rail border crossing in Terespol. According to the Border Guard Headquarter however, applying for international protection was made possible for those in need.[19]

The overall number of applicants in 2020 was 2,803, thus marking a -31% decreased in comparison to 4,095 applicants in 2019. It is the lowest number of applicants since 1999.[20] In April-July 2020 there was no application for international protection submitted at the border crossing point in Terespol nor in Medyka (main entry border crossing point to Poland from Ukraine).[21]

According to the statistics provided by the Border Guard for 2020, only 448 persons applied for international protection at the border crossing point in Terespol,[22] while in 2019 there were a total of 1,610 persons. In 2020, 1,989 persons were refused entry in Terespol and the appeals against these decisions were submitted by 162 of them (while in 2019, 4,378 persons were refused entry and 81 persons appealed against these decisions).[23]

 

 

[1] Information provided by email on 19 February 2021.

[2] 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.

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

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

[5] Legal Intervention Association, At the Border. Report on monitoring of access to the procedure for granting international protection at the border crossings in Terespol, Medyka and Warszawa-Okecie airport, Warsaw 2016, available at: https://bit.ly/2tuJCk0.

[6] Helsinki Foundation for Human Rights, A Road to Nowhere: The account of the monitoring visit at the Brest-Terespol border crossing between Poland and Belarus, Warsaw 2016, available at: https://bit.ly/2ShztiG, see also the report from 2019 on the situation.

[7] Helsinki Foundation for Human Rights, Access to asylum procedurę at Poland’s external borders, Current situation and challenges for the future, Warsaw April 2019, available at: https://bit.ly/3955t0w.

[8] 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

[9] Consortium of NGOs, Submission to the UN Special Rapporteur on the human rights of migrants on push back practices from 01 February 2021, available at: https://bit.ly/2ZdTMBJ 

[10] ECtHR, M.K. v. Poland, Application No 40503/17; M.A. and Others v. Poland, Application No 42902/17; M.K. v. Poland, Application No 43643/17.

[11]  See the summary of the judgement: European Database of Asylum Law, M.K. and Others v Poland: Repeated refusal to accept asylum applications amounted to collective expulsion, available at: http://bit.ly/3tOUpzD

[12] See HFHR news section, Access to international protection. Information on the submission to UN Special Rapporteur, available (PL) at: http://bit.ly/3b3ceT5.

[13] See the response of the Ministry of the Interior and Administration to the MP’s interpellation concerning the ECtHR judgement in M.K. and others, available (in Polish) at: https://bit.ly/2MPUyCt

[14] Ibidem.

[15] HFHR, Submission to the UN Special Rapporteur on the human rights of migrants on push back practices from 1 February 2021, available (EN) at: https://bit.ly/2ZdTMBJ

[16] Supreme Administrative Court, cases nos. II OSK 2511/18, II OSK 2599/18, and II OSK 3100/18.

[17] Helsinki Foundation for Human Rights, Access to asylum procedurę at Poland’s external borders, Current situation and challenges for the future, Warsaw April 2019, available at: https://bit.ly/2OmcMc0.

[18] Commissioner for Human Rights, Letter to the Ministry of the Interior and Administration from 12 May 2020, available (in Polish) at: https://bit.ly/3jUyPFA. See also Sytuacja migrantów i migrantek w czasie pandemii. Stanowisko RPO i Komisji Ekspertów ds. Migrantów [Situation of migrants during the pandemic. Statement of the Commissioner for Human Rights and the Committee of Experts on Migrants], 13 May 2020, available (in Polish) at: https://bit.ly/2N77rId.

[19] Commissioner for Human Rights, Letter to the Ministry of the Interior and Administration from 12 May 2020, available (in Polish) at: https://bit.ly/3jUyPFA.

[20]  See the compilation of statistics in the: HFHR, Submission to the UN, available at: https://bit.ly/2ZdTMBJ

[21] Information provided by the Border Guard, 5 February 2021.

[22] Information provided by the Border Guard, 5 February 2021.

[23] Letter from the Border Guard Headquarter to HFHR from 17 January 2020. No information on the outcomes was available.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation