Access to the territory and push backs

Polish-Belarus border: Since mid-2021 the number of asylum seekers and migrants seeking to enter Poland from Belarus increased significantly. Belarus facilitated irregular migration to the EU in response to the EU sanctions,^[1] while Poland refused to provide access to asylum procedures to those in need.

As a result, the situation in the border zone has quickly become a humanitarian crisis. Besides leaving people without any assistance in the border area (without access to shelter, food, and drinking water), Border Guards also carried out pushbacks. According to the report of the Protecting Rights at Borders initiative, some migrants have been pushed back numerous times, irrespective of their age or vulnerability. Pushbacks on the border with Belarus took place also at the official border crossing points.^[2]

According to the report of Grupa Granica (GG) (a social movement of activists and NGOs voluntarily assisting asylum seekers and migrants at the border), since the beginning of the crisis at the border in August 2021 until 17 February 2023 at least 37 persons were found dead on both sides of the border.^[3] The main reasons for deaths were hypothermia and drowning. Organisations and humanitarian and medical aid workers reported cases of frostbitten limbs (leading in extreme cases even to amputation), food poisoning resulting from lack of access to drinking water, hypothermia, fractures and other injuries suffered by migrants trying to cross the border from Belarus to Poland.^[4]

The real number of deaths may be much higher – the persisting restrictions on access to the border zone made it difficult to investigate the cases properly. According to HFHR, there are many indications that the death proceedings are not diligently conducted by the Polish authorities.^[5] From the requests for access to public information sent by the HFHR to law enforcement authorities, it is known that most proceedings are pending in one prosecutor’s office under a common file number – even though deaths were often separated by a large time interval and significant geographic distance.^[6]

Organisations also reported an escalation of violence in 2022 at the border zone. Polish officers used intimidation, threats to use firearms, use of gas, destruction of smartphones and sim cards, and deliberate deception. The eventual pushbacks to the Belarusian border suggest that the migrants suffered more violence from Belarusian officers and smugglers.^[7]

On 1 July 2022, the construction of a physical dam on the Polish-Belarusian border was officially completed. The dam is approximately 187 km long and equipped with special throughways for animals and electronic protection (perimetry).^[8]

Also on 1 July 2022, the Ordinance of the Ministry of the Interior and Administration on a temporary ban on staying in 183 localities in the border area of Podlaskie and Lubelskie voivodships, which was in force since 1 December 2021, ceased to apply. At the same time, under another ordinance, the Podlasie voivode prohibited the stay within 200 meters from the state border line justifying it by ongoing installation of electronic devices at the border and therefore security reasons. The latter ban on access was in force until 31 December 2022.^[9] Changing the restricted area from around 3 km from the border to 200 m from the border allowed for more efficiency in assisting those in need, but NGOs still reported problems in accessing migrants, because pushbacks were happening so quickly.^[10]

The construction of the fence was full of controversy – starting from the huge expenses, a lack of transparency, ecological impact and ending with efficiency. According to the Grupa Granica, the completion of the dam did not close the migration route or limited the number of migrants crossing the border but only made it more dangerous – migrants are forced to cross dense woods, rivers, marshes or wetlands, and as a result, more people are injured along the way and require medical assistance.^[11] During autumn and winter, with the temperatures dropping below zero, the situation is even more dramatic.

International jurisprudence:  On 30 June 2022, the European Court of Human Rights issued rulings in two cases concerning collective expulsions at the Poland-Belarus border, A.B. and Others v. Poland^[12]  and A.I. and Others v. Poland^[13]. Facts of both cases concern pushbacks at the official border crossing point in Terespol in 2017. 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.

According to HFHR information note on legal developments regarding pushbacks,^[14] between October 2021 and December 2022, the ECtHR granted nearly 100 interim measures under Rule 39 of the Court’s Rules of Procedure, ordering the Polish authorities to refrain from returning the applicants to Belarus, considering that this could constitute a violation of Article 3 of the European Convention on Human Rights. Most of the interim measures issued have already been lifted due to the initiation of lawful procedures regarding foreigners in the territory of Poland (proceedings on return or to grant international protection in the territory of the Republic of Poland). As a result, the risk of these individuals being sent back to Belarus was no longer a concern. Individual complaints were filed in some of these cases, and several of them have already been communicated to the Polish government.^[15]

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: Ordinance of the Minister of Internal Affairs and Administration of 20 August 2021,^[16] authorizing the Border Guard to turn back foreigners 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)^[17] which allowed for issuing immediately enforceable ‘orders to leave the Republic of Poland’ with regards to foreigners apprehended after the irregular border crossing.^[18]

It is important to note that according to HFHR, it is unclear on what basis the Border Guard decides which procedure is applied in a given case: whether the person falls under the regime of the Ordinance (Regulation) or the amended Law on Foreigners (Article 303b). However, according to the ECRE report, the Ordinance is most likely applied towards persons apprehended subsequently.^[19]

According to HFHR, as of December 2022, 10 domestic judgments have been delivered confirming that the way of returning migrants to Belarus by the Polish Border Guard used in most cases was unlawful.

In four of its judgments,^[20] 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,^[21] 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 Ordinance of the Minister of Internal Affairs and Administration 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 Ordinance 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 another judgment,^[22] delivered as a result of a complaint filed by the Polish Ombudsman, the Voivodeship Administrative Court in Bialystok overturned the appealed decision to leave the Republic of Poland, which resulted in the return of an unaccompanied minor of Syrian citizenship from Poland to Belarus. According to the Court, it did not appear from the apprehension protocol of the minor foreigner and the accompanying foreign adult that they were informed of the possibility of applying for international protection, as would be required by the principle of non-refoulement. There was also no sign in the case files that the foreigners were heard before being returned to Belarus. In the Court’s view, the case was not properly investigated, and the appropriate procedures related to the appointment of a guardian and other guarantees enjoyed by unaccompanied minors were not applied (see also the section on Legal representation of unaccompanied minors). The Court found that the case involved a collective expulsion in violation of Article 4 of Protocol 4 of the European Convention on Human Rights.

Official statistics: According to the Border Guards, in 2022, 12,155 persons were ‘prevented from irregular crossings of the border’. This number includes persons intercepted at the border, those who managed to avoid interception (e.g., they run away from Polish BG officers to Belarus) and persons who were returned to Belarus in accordance with the amended Ordinance in force since August 2021.^[23] In 2022, the Border Guard issued orders to leave Poland^[24] to 2,488 persons. Only 6 persons appealed against these decisions, and none of them has been changed as a result of these appeals.^[25] On the Belarusian border, decisions refusing entry were issued towards 2622 persons in 2022 (1889 of which were issued at the Terespol border crossing). Only 11 appeals were lodged. In 2022, the overall number of international protection applicants was 9933. In Terespol, the Border Guards received applications for international protection from 1029 persons. In Podlaskie Border Guard Unit (which covered the restricted access border area), another 1070 applications were registered.^[26]

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.^[27] In addition, in the past years, independent monitoring visits to the border crossing point in Terespol were held by the Commissioner for Human Rights,^[28] Amnesty International,^[29] and Human Rights Watch^[30] 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.^[31]

Readmission agreements. Poland signed the readmission agreements with the EU Member States (both bilateral and multilateral). There were no new agreements signed in 2022. In 2022, Poland readmitted 1209 foreigners, mainly to Lithuania (575), Georgia (218) and Iraq (114).^[32]

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 territory of Poland. In 2022, there were 155 applications for family reunification and a positive decision was issued in 102 cases.^[35]

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

[2] Protecting rights at borders, Beaten, punished and pushed back, January 2023, available at: https://bit.ly/3kYwJc9, page 13.

[3] Grupa Granica, Periodic report on the situation at the Polish-Belarusian border, December 2022- January 2023, page 3, available (EN) at: https://bit.ly/3UGpqUd.

[4] Ibidem.

[5] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, page 3, available (EN) at https://bit.ly/40GcZt3.

[6] Ibidem.

[7] Grupa Granica, Periodic report on the situation at the Polish-Belarusian border, December 2022- January 2023, page 10, available (EN) at: https://bit.ly/3UGpqUd.

[8] The Ministry of The Interior and Administration, Communitation from 30 June 2022, Zakończenie budowy fizycznej części zapory na granicy polsko-białoruskiej, available (PL) at:  https://bit.ly/40czPs8.

[9] Podlaski Voivode in Bialystok, Communication from 22 Novermber 2022, Wojewoda podlaski przedłużył zakaz przebywania na obszarze 200 m od linii granicy z Białorusią, available (PL) at : https://bit.ly/3GOwWqG.

[10] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, page 3, available (EN) at:  https://bit.ly/3oaqWBQ.

[11] Grupa Granica, Periodic report on the situation at the Polish-Belarusian border, December 2022- January 2023, available (EN) at: https://bit.ly/3UGpqUd, page 4.

[12] ECtHR, judgement of 30 June 2022, case of A.B and others v. Poland (application no. 42907/17), available at: https://bit.ly/41AmLO3 .

[13] ECtHR, judgement of 30 June 2022, case of A.I. and others v. Poland (application no. 39028/17), available at: https://bit.ly/3MTYMpj .

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

[15] R.A. and others v. Poland, complaint no. 42120/21, communicated on 27.09.2021; K.A. v. Poland and M.A. and others v. Poland, complaint nos. 52405/21 and 53402/21, communicated on 1.06.2022; F.A. and S.H. v. Poland, complaint no. 54862/21, communicated on 20.06.2022.

[16] 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)

[17] 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).

[18] 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.

[19] 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.

[20] 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

[21] 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.

[22] Judgement of the Voivodeship Administrative Court in Bialystok, no II SA/Bk 558/22 of 27 October 2022, see the judgement and comments from the Ombudsman: https://bit.ly/40HvxsO .

[23] Information provided by the Border Guard to HFHR, 9 February 2023, KG-OI-VIII.0180.184.2022.BK.

[24] Issued under the Article 303b of the Law on Foreigners.

[25] Information provided by the Border Guard to HFHR, 25 January 2023, KG-OI-VIII.0180.184.2022.BK.

[26] The Border Guard Headquarter’s letter to SIP, 2 February 2023, KG-OI-VIII.0180.13.2023.BK.

[27] 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.

[28] 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 .

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

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

[31] 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

[32] The Border Guard Headquarters’ letter to SIP, 28 February 2023, KG-OI-VIII.0180.12.2023.BK.

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

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

[35] Information provided by the Office for Foreigners, 3 February 2023.