Access to the territory and push backs

Poland

Country Report: Access to the territory and push backs Last updated: 26/05/22

Author

Independent

Polish-Belarus border

Since mid-2021 the numbers of asylum seekers and migrants seeking to enter Poland from Belarus increased significantly. According to the Border Guards, in August 2021 alone 3,500 persons tried to cross the border, compared to none in August 2020.[1] 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. As a result, in August 2021 a group of some 30 Afghan nationals (men, women and children) was stranded for several weeks at the border near the village Usnarz Górny, without the possibility of neither entering Poland, nor going back to Belarus.

In the end of August the ECtHR issued an interim measure ordering Poland to provide food, water, clothing, medical assistance and, if possible, shelter to the group of Afghans stranded in Usnarz Górny.[3] On September 27, this order was extended and further two interim measures were indicated: The Court asked to provide direct contact between the applicants and their lawyer and not to send the applicants to Belarus if they were on the Polish territory.[4] Poland has not implemented them so far.

As a result, the only help to those people came from non-governmental sources. In August civil society organizations and activists provided humanitarian and legal assistance to persons trapped at the border and by encountering other groups of foreigners in the forests nearby were also able to document pushbacks.[5] Some NGOs opened a temporary office on the spot.[6]

However, on 2 September 2021 the state of emergency was officially introduced in the part of Podlaskie and Lubelskie Voivodeship, in the area surrounding the border with Belarus.[7] It included a ban of staying in the area for everyone except certain categories of persons (i.e. inhabitants), a prohibition of recording by any technical means and restriction on access to public information on actions related to the border protection. It severely limited the possibility for journalists and civil society organizations to monitor the situation at the border and provide humanitarian assistance.[8] Nevertheless, many people (activists as well as inhabitants of the restricted area) managed to stay active and help asylum seekers and migrants, who were often left in the dense woods surrounding the restricted area of the border zone for months, with serious health problems.(For the medical issues at the border see also chapter Health care).

The situation in the border zone has quickly become a humanitarian crisis. Besides leaving people without any assistance in the border area, Border Guards also carried out push backs. According to the report of Grupa Granica (GG) (a social movement of activists and NGOs voluntarily assisting asylum seekers and migrants at the border despite the limited access), the typical scenario was as follows: “most people who manage to cross the Polish border are forcibly brought back to the border and pushed towards the razor wire fencing on the border with Belarus. Polish border guards, assisted by the military and the police, stop migrants within the border area, and — failing to initiate any legal procedures (i.e. for return decision or granting international protection if a person asks for it)—force migrants to return to Belarus in places far from official border crossings. This process is applied indiscriminately: to elderly people, women, children and men. The migrants, however, are not returned. Immediately after they cross the border, the Belarusian guards violently force them to cross again into Poland.” [9]

The Polish Ombudsman (the Commissioner for Human Rights) became the sole institution in Poland with access to areas near the border, albeit with some difficulties.[10] The border zone as well as the Border Guard unit’s detention facilities were visited around four times a month in the second half of 2021 by the Commissioner for Human Rights within the National Mechanism for the Prevention of Torture. The Commissioner also sent interventions to the relevant stakeholders, regarding e.g. living conditions at the border and access to the proceedings for international protection, since it had been confirmed by the Commissioner’s representatives, that the foreigners declared a will to apply for international protection.[11] The Ministry of the Interior and Administration replied that the relevant legal provisions regarding international protection are complied with, and the persons are not in the territory of Poland and verbal contact between Polish officers and foreigners staying on the Belarusian side does not establish jurisdiction over them.[12]

In November the Council of Europe Commissioner for Human Rights visited the border zone and reported that she had witnessed clear signs of their painful ordeal: wounds, frostbite, exposure to extreme cold, exhaustion and stress. The Commissioner also recognized hate and fear that surrounded the provision of humanitarian help to migrants and refugees and called for investigation of reprisals directed at people who brought humanitarian help, such as the attack on the cars of volunteer medics providing first aid to the people stuck at the border.[13]

With temperatures in the forests dropping below zero, at least 21 persons died in the border area by mid December 2021, but the number is likely much higher.[14] UNHCR and IOM issued a joint statement on the deaths, saying they had made clear the dangers of pushbacks and of people “stranded for weeks, unable to access any form of assistance, asylum or basic services. Many were left in dire situations, exposed to the elements, suffering from hypothermia.”[15]

The Polish authorities’ response to the crisis concentrated mainly on militarization of the border, namely increasing the number of troops (Border Guard, Police and army) to protect the border and on building the physical barrier to stop influx of asylum seekers and migrants. Razor wire fencing is to be replaced by a high-tech 353-million-euro border wall, 186 km long and 5,5 m tall. Its construction started in January 2022 and its completion is planned by summer 2022. The construction is very controversial and has raised concerns from both the humanitarian and environmental point of view.[16]

The state of emergency has been prolonged several times, most recently until 30 June 2022.[17] It is worth noting that on 18 January 2022, Poland’s Supreme Court examined the complaint submitted by the Commissioner for Human Rights and ruled on the legality on the country’s “state of emergency” legislation, finding that the emergency measures went beyond what is permitted by the Polish Constitution.[18]

Developments of the legal framework and available statistics. The situation at the border gave rise to controversial legislative changes. On 21 August 2021 the Regulation on the suspension of cross-border movement – which is one of the COVID measures – was amended by the Ministry of Interior and Administration.[19] This amendment provided legal basis for direct removal of persons from the territory if they appeared at the border crossing point on which the cross-border movement had been suspended or limited or if they appeared outside of any border crossing point. According to the Commissioner for Human Rights, although this amendment does not concern persons seeking international protection directly, it limits significantly access to the proceedings for international protection. In fact, those who fall in the above categories cannot effectively apply for protection at all.[20]

In parallel, on 23 August 2021, the government submitted to the Parliament a bill amending the Law on foreigners and the Law on granting protection to foreigners in the territory of the Republic of Poland. The draft law was aimed at accelerating expulsions of foreign nationals immediately after unauthorized crossing of the external border of the EU. The draft law triggered concern among human rights NGOs, as these provisions give grounds for removal of a foreign national from Poland, even if they apply for international protection.[21]

On 26 October 2021 the amendments entered into force. As previously planned, it introduced a new legal instrument allowing for expulsion: an order to leave Poland after the foreigner crossed the border in an unauthorized manner.[22] The order to leave Poland is accompanied by re-entry ban covering Schengen zone, so it has the same effect as a return order based on EU Return Directive, but is much more simplified. The new law also allows the Office for Foreigners to disregard an application for international protection submitted by a foreigner who crossed the border in an unauthorized manner, unless:

– they came directly from the territory where their life or freedom was threatened by persecutions or serious harm and

– they presented reliable reasons for illegal entry and

– they applied for international protection directly after crossing the border.[23]

As for the relations between the Regulation and the amended version of the Law on Foreigners, both instruments are applied in parallel. The Law on Foreigners has a narrower personal scope because it applies to persons who were apprehended immediately after unauthorized crossing of the border. Contrary to the Regulation, the amended Law on Foreigners is not a temporary measure.[24]

The Commissioner for Human Rights and NGOs strongly criticized the new law. UNHCR in its observation regretted that the amendments significantly restrict the possibility to seek asylum for persons intercepted in the border area, summarizing that “the Draft Law relies on a misapplication of article 31 of the Geneva Convention”.[25]

According to the GG, the new Law intended to make border guards’ actions, previously unlawful, legal.[26] On the basis of the available statistics, the conclusion can be drawn that the new Law is much more frequently applied as a basis for the order to leave Poland than as a justification for disregarding the application for international protection. According to the Border Guards, in 2021 2,384 third country nationals were ordered to leave Poland on the basis of the new Law[27] Still, this instrument has been applied selectively, notably to some persons, perhaps because it requires a certain administrative procedure (contrary to the removal based on the Regulation amended on 21 August). The majority of persons are however expelled without their application being registered. As for the statistics on disregarding the application for international protection based on the new Law, the Office for Foreigners reported it was applied towards 5 persons in 2021[28], so it seems that this amendment did not have much impact so far in this regard.

According to the Border Guard Headquarters, 33,147 persons were refused entry at the Belarussian border in 2021. Only 52 persons submitted an appeal.[29]

Unfortunately, it is impossible to estimate how many persons have been stranded between Poland and Belarus and how many of them need international protection and have been denied access to the proceedings. GG reports that from the beginning of September until mid-November the activists were asked for humanitarian assistance by 5,370 persons. Most importantly, they lost contact with many of them, including children, unable to get to know their whereabouts. GG reports they are still asked for assistance by some 50-70 foreigners per week at the border with Belarus.[30]

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. In addition, 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 such as the Legal Intervention Association (SIP)[34] and Helsinki Foundation for Human Rights (HFHR).[35] Already prior to the current situation at the border with Belarus, they confirmed the existence of grave systemic irregularities with accepting applications for international protection at the border.[36]

International jurisprudence. On 23 July 2020, the ECtHR published its judgment in M.K. and Others v Poland[37] and on 8 July 2021 the ECtHR delivered a judgement in D.A and others v. Poland.[38] In both cases the Court concluded that the Polish authorities violated Article 3 ECHR by denying access to international protection proceedings.[39]

Readmission agreements. Poland signed readmission agreements with several countries.

 

Poland – readmission agreements with EU Member States

 

I.     Bilateral agreements

 

I.I. with EU Member States within Schengen zone

No Country Date of signing Date of entering into force
1. Switzerland 19 September 2005 31 March 2006
2. Spain 21 May 2002 23 June 2003
3. Sweden 1 September 1998 9 April 1999
4. Austria 10 June 2002 30 May 2005
5. Czech Republic 10 May 1993 30 October 1993
6. Greece 21 November 1994 5 May 1996
7. Lithuania 13 July 1998 8 January 2000
8. Latvia 29 March 2006 27 December 2007
9. Slovakia 8 July 1993 12 November 1993
10. Slovenia 28 August 1996 6 April 1998
11. Hungary 25 November 1994 5 August 1995

 

I.II. with EU Member States outside Schengen zone

No Country Date of signing Date of entry into force
1. Ireland 12 May 2001 22 June 2002
2. Bulgaria 24 August 1993 4 February 1994
3. Croatia 8 November 1994 27 May 1995
4. Romania 24 July 1993 19 January 1994

 

II.    Multilateral agreements

No Country Date of signing Date of entry into force
1.[40] Belgium

The Netherlands

Germany

France

Italy

Luxemburg

29 March 1991 1 April 1991
2.[41] Switzerland

Belgium

Denmark

Spain

The Netherlands

Norway

Sweden

Czech Republic

Germany

Finland

Greece

Portugal

Italy

Romania

Luxemburg

United Kingdom

16 October 1980

 

By Poland – 19 May 2004

1 December 1980

 

For Poland – 1 June 2005

 

Legal access to the territory. There are no means beyond family reunification to legally access the territory in the form of humanitarian visas or corridors or resettlement or relocation. In 2021, there were only 91 applications for family reunification.

In August 2021 the total number of approximately 1,100 Afghans were evacuated to Poland. According to the Office for Foreigners as of the end of October, 861 of them stayed in Poland. By the end of 2021 those who stayed in Poland were granted refugee status.[42] However according to some sources, around one third of them left Poland (also after the recognition) due to limited support.[43]

 

 

 

[1] The Border Guard, Podlaskie Division, news from 1.09.2021, At the Polish-Belarusian border: https://bit.ly/3B6sWxF.

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

[3] ECtHR, R.A. and Others v. Poland (application no. 42120/21), press release from 25 August 2021.

[4] ECtHR, R.A. and Others v. Poland (application no. 42120/21), press release from 28 September 2021

[5] Grupa Granica, ‘Humanitarian crisis at the Polish-Belarusian border’, 10 December 2021, available (EN) at: https://bit.ly/3uF6jiF.

[6] Fundacja Ocalenie, Polish-Belarusian border, summary of actions, information (EN) available at: https://bit.ly/34zehim

[7] Ordinance of the Council of Ministers of 2 September 2021 on limitations of rights and liberties due to the state of emergenty [Rozporządzenie Rady Ministrów z dnia 2 września 2021 r. w sprawie ograniczeń wolności i praw w związku z wprowadzeniem stanu wyjątkowego], available (PL) at: https://bit.ly/3tdWdmw.

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

[9] Grupa Granica, ‘Humanitarian crisis at the Polish-Belarusian border’, 10 December 2021, available (EN) at: https://bit.ly/3uF6jiF.

[10] The Commissioner for Human Rights Poland and the CoE delegation was stopped by the Police on 18 November 2021, when they reached the restricted zone. Information available at: https://bit.ly/375vkK1.

[11] The Commissioner for Human Rights Poland, Letter to the Ministry of Interior and Administration, 25 August 2021, available (PL) at: https://bit.ly/3ssgFzn.

[12] The Ministry of Interior and Administration, Letter to the Commissioner for Human Rights, 19 October 2021, available (PL) at: https://bit.ly/3LdAhjz.

[13] The CoE Commissioner for Human Rights, Country visit, 19 November 2021, https://bit.ly/3K7xN4X.

[14] IOM via Twitter, 14 December 2021, available at: https://bit.ly/3hnQeG2.

[15] ECRE, Poland: Four Deaths at Belarus Border Expose “Dire Situation” Of Stranded Refugees – UNHCR Requests Access as Poland Deploys More Soldiers.

[16] Protest at the Polish-Belarusian border against the wall, 27 February 2022, https://bit.ly/3MdB7Nu.

[17] Ordinance of the from 28 February 2022, available at: https://bit.ly/3Msv5Jh.

[18] The Commissioner for Human Rights, The Ordinance on the state of emergency found unconstitutional, 19 January 2022, https://bit.ly/3IxHuJw.

[19] See the table Overview of the Legal Framework in the beginning of the report.

[20] Letter of the Commissioner for Human Rights to the Ministry of the Interior and Administration, https://bit.ly/3K8KVa2.

[21] Comments of the HFHR on the bill, 6 September 2021, https://bit.ly/3IAsQ45.

[22] Article 303b of the Law on Foreigners.

[23] Article 33(1)a of the Law on Protection.

[24] G. Baranowska, Legalność i dopuszczalność procedury push-back (wywózek) i ocena prób ich legalizowania w Polsce [Legality and admissibility of push-back procedures and assessment of attempts of legalization of push backs in Poland], (in) W. Klaus (ed) Poza prawem. Prawna ocean działań Państwa Polskiego w reakcji na kryzys humanitarny [Outside the law. Legal assessment of the Polish state actions in reaction to the humanitarian crisis]. NA GRANICY POLSKO-BIAŁORUSKIEJ [Outside the law], Warsaw 2022.

[25] UNHCR, Observations on the draft law amending the Act on Foreigners and the Act on Granting Protection to Foreigners in the territory of the Republic of Poland (UD265), 16 September 2021, available at: https://bit.ly/3oxgAth.

[26] Grupa Granica, ‘Humanitarian crisis…, 18.

[27] Information provided by the Border Guard Headquarter, letter no KG-OI-VIII.0180.63.2022.BK, 8 April 2022.

[28] Letter from the Office for Foreigners to HFHR no BSZ.WKSI.0656.3.2022/RW, 26 January 2022.

[29] Information provided by the Border Guard Headquarter, letter no KG-OI-VIII.0180.7.2022.JL, 4 March 2022.

[30] OKO.press, information from 4 March 2022, available at: https://bit.ly/3hE4wTd.

[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] 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.

[35] 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.

[36] 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. See also: 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  and: 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

[37] 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.

[38] ECtHR, D.A. and others v. Poland, application no 51246/17.

[39] 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. The ECtHR communicated also other cases against Poland, all concerning the same issue: 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), as well as A.I. and others v. Poland (application no 39028/17), T.Z. and M.M. and others v. Poland (application no41764/17) and A.B. and others v. Poland (application 42907/17).   

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

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

[42] Gazeta Prawna, Afghans evacuated to Poland have support, news article, 3 January 2022, https://bit.ly/3Mcr37E

[43] Wprost, Poland evacuated Afghans but then left them, news article, 3 January 2022, https://bit.ly/35Fcit0.

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