Access to the territory and push backs

Poland

Country Report: Access to the territory and push backs Last updated: 30/11/20

Author

Independent

The previous updates of this report referred to persisting cases of persons denied access to the territory at the border-crossing point in Terespol on the Belarusian border, which has been the main entry point in Poland for asylum seekers, during 2012-2018, with a significant deterioration of the situation in 2016.

Throughout 2016, independent monitoring visits to the border crossing point in Terespol held by the Legal Intervention Association,[1] Helsinki Foundation for Human Rights,[2] the Commissioner for Human Rights,[3] Amnesty International,[4] and Human Rights Watch[5] confirmed the existence of grave systemic irregularities with accepting applications for international protection at the border. Despite the repeated reports, interventions and litigation in 2016-2019, the Polish government denies the application of unlawful practices at the border.[6]

Most importantly, several cases have been brought before the European Court of Human Rights (ECtHR).Currently, there are four cases pending before the ECtHR concerning the pushbacks at Terespol, which have been communicated to the Polish government.[7] Three cases concern Chechen nationals and the fourth (D.A. v. Poland) Syrian nationals who travelled to the Terespol border crossing point in order to seek asylum in Poland. In all cases the Court granted interim measures under Rule 39 of the Rules of the Court, indicating to the government that the applicants should not be removed to Belarus. According to Warsaw Bar Council, HFHR and Association for Legal Intervention, Poland did not comply with the measures and returned the applicants to Belarus.[8] The Ministry of Foreign Affairs stated that the person was not returned since he had not been admitted in the first place. In its statement, the Ministry noted that the foreigner had not crossed the Polish border and was hence not expelled and had not filed an application for international protection during a border check.[9] The Commissioner for Human Rights has also intervened in the cases of non-compliance with the measures issued by the ECtHR. Eventually, the applicants in the case of M.A. and others v. Poland have been admitted into Poland in 2018.[10] In addition, the Polish government was notified of two other cases by the ECtHR concerning the situation at the border. Both concern applicants who were detained after making several unsuccessful attempts to apply for international protection at the border crossings in Terespol[11] and Medyka (Polish-Ukrainian border).[12]

The cases of push backs were also brought before the domestic courts. As of April 2019, there were 25 judgements delivered by the Supreme Administrative Court and all of these cases resulted in revoking administrative decisions on refusal of entry issued by Border Guards. 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.[13] 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. 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. And 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 Administration refused to introduce amendments to national law to ensure its compliance with the established case-law of administrative courts.[14]

According to the statistics provided by the Border Guard in 2019, 1,610 persons applied for international protection at the border crossing point in Terespol, which constitutes 39% of all applicants in 2019. In 2019 4,378 persons were refused entry at the border crossing point in Terespol and only in cases of 81 persons appeals against decisions on refusal of entry were lodged.[15]

 


[1] 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.

[2] 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.

[3] 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.

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

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

[6] 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.

[7] 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; D.A. v. Poland, Application No 51246/17.

[8] HFHR, ‘Attorneys at border: Poland failed to implement ECtHR judgment’, 9 June 2017, available at: http://bit.ly/2ucnHMV.

[9] Ministry of Foreign Affairs, ‘Wyjaśnienie MSZ w sprawie zarządzenia Europejskiego Trybunału Praw Człowieka z 8 czerwca 2017r.’, available (in Polish) at: http://bit.ly/2oke75z.

[10] ECtHR, M.A. and Others v. Poland, Application No 42902/17, available at: http://bit.ly/2VttZ4B.

[11] ECtHR, A.B. v. Poland and T.K. and S.B. v. Poland, Applications Nos 15845/15 and 56300/15.

[12] ECtHR, M.Z. and Others v. Poland, Application No 79752/16.

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

[14] 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.

[15] 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