Applicants who need special treatment are defined in particular as:[1]
- Minors;
- Disabled people;
- Elderly people;
- Pregnant women;
- Single parents;
- Victims of human trafficking;
- Seriously ill;
- Persons with mental disorders;
- Victims of torture;
- Victims of violence (psychological, physical including sexual).
Screening of vulnerability
Identification of vulnerable applicants is conducted by the Border Guard while registering the application for international protection and by the Office for Foreigners.
The Head of the Office for Foreigners is obliged to assess whether these persons need special treatment in the proceedings regarding granting international protection or social assistance. To make this assessment, the authority can arrange for a medical or psychological examination of the applicant, funded by the state. In case the Head of the Office for Foreigners does not arrange for the medical or psychological examination, it is obliged to inform the person that might require special treatment that they can arrange for such an examination themselves and bear the costs. If a person does not agree to be subjected to medical or psychological examination, they should be considered as a person that does not require special treatment. The Head of the Office for Foreigners should make the assessment immediately after the submission of the application for international protection and at any other time until the procedure is finished, in case any new circumstances arise.[2]
Since 2017, in Biala Podlaska, near the reception centre, there has been a separate medical unit where initial verification of asylum seekers’ health is conducted. Both the procedure and medical unit are called “epidemiological filter”.[3] The Office for Foreigners has stated that as of June 16, 2019, every asylum seeker in the reception centre who undergoes the mandatory epidemiological filter procedure will also undergo a vulnerability screening. This is envisaged in the contract for health services for asylum seekers from 4 June 2019.[4]
In 2019, the UN Committee against Torture pointed out the problem with the appointment of experts to determine whether a foreigner is a victim of torture.[5] Responding to the Committee, the Polish delegation stressed that qualification as a victim of torture does not require an opinion from a specialist and is a part of specialised medical assistance provided during the refugee procedure.[6]
According to a study from 2020, the Office for Foreigners representative admitted that a conversation with a psychologist is usually scheduled if the asylum seeker has indicated relevant psychological issues in their application for international protection. The psychologist can issue an opinion recommending whether the applicant should be considered as requiring special treatment.[7]
NGOs generally confirm that the system of identification envisaged in the law does not work in practice. According to SIP, the Office for Foreigners does not, as a rule, require opinions from experts to determine whether an applicant has been a victim of torture based on factors such as scars and wounds. Such a practice makes it difficult for foreigners to prove that they have been victims of torture in their country of origin. Frequently, foreigners arrive in Poland with visible signs of torture. In such cases ordering an examination by an expert could help acquire reliable evidence that a person experienced torture.[8] In the opinion of SIP, problems with proper identification of the victims of violence remained in 2020.[9] Persons who declared that they were victims of violence were not subject to medical or psychological treatment. Additionally, psychologists present during interviews did not prepare opinions analyzing these circumstances.
According to HFHR even in the case of applicants with PTSD, the inconsistencies in testimonies may lead to the refusal of international protection. Furthermore, even at the later stages of the procedure, the appeal body or courts do not appoint independent experts to assess the mental health status of applicants.
NGOs documented important judgements on the matter in 2019. The Supreme Administrative Court,[10] and the Voivodeship Administrative Court in Warsaw,[11] ruled on cases where the applicants were diagnosed with PTSD due to violence/torture experienced in their countries of origin, however, examination has not been performed by experts appointed by the authorities deciding on international protection. The courts upheld refusal decisions on international protection stating that the testimonies of applicants were inconsistent, the courts also stated that the authorities had no obligation to appoint experts to assess the mental state of health of the applicants. In the oral justification of the judgment from 16 May 2019, the Supreme Administrative Court stated that psychological opinions prepared by the Border Guards, doctors from a psychiatric hospital and experts appointed by the detention court are not credible because they are based on the applicants’ testimonies (all these opinions stated that the applicant experienced violence).[12]
Identification of vulnerable applicants is also conducted by the Border Guard while registering the application for international protection (the Border Guard assesses whether an applicant may belong to one of these two groups: victims of trafficking in human beings or persons subject to torture).[13] When applying to the court to place an applicant in detention, the Border Guard is also obliged to identify victims of violence and other persons for whom detention will cause a threat to life or health. For this purpose, the Border Guard implemented an algorithm, criticized by the Commissioner for Human Rights and NGOs (see Detention of vulnerable applicants). The Commissioner for Human Rights, in the report published in 2022 stated that after visiting all the detention centres in Poland, he draws a conclusion that personnel, including psychologists, are not prepared to properly identify victims of torture or inhuman treatment and are not familiar with the Istanbul Protocol or do not use it in practice.[14] Physical signs of violence including torture and inhuman treatment (like scars or visible deformations of the body) are ignored. Unfortunately, there are significant shortcomings also concerning mental health. Psychological or psychiatric diagnostics is conducted only after a person is qualified as requiring special treatment by social workers. This means that the competence of social workers in detention centres, who are not required to have psychological or psychiatric qualifications, is considered to be somewhat higher than that of psychologists and psychiatrists who should be at the forefront of identifying vulnerable individuals.[15]
The Office for Foreigners does not collect statistics on the number of asylum seekers identified as vulnerable, which was confirmed during the UN CAT report on Poland in 2019.[16] According to a study for 2019, published in 2020, in which the Office for Foreigners representatives were interviewed, the largest group are individuals who were subject to physical or psychological violence.[17] However, for this report, the Office for Foreigners reported that in the fourth quarter of 2019, there were 274 asylum seekers identified as requiring special treatment, and only 1 person was identified as a victim of violence.[18] In 2022 and 2021, the Office responded that there were no statistics in this regard.
According to the Office for Foreigners, identification of vulnerable applicants takes place also during regular psychological counselling, available in every reception centre and at the Office for Foreigners (see Health Care).[19]
SIP reported a case, which concerned an applicant who was a victim of torture in his country of origin. The administrative authorities did not accept as evidence the documents provided by the applicant and this was the reason the Supreme Administrative Court annulled the decisions.[20] The Court also stressed that the authorities ignored the psychological opinion, in which it had been certified that the applicant had problems with memory and concentration and that he had been diagnosed with PTSD. The Court also highlighted that in the case file, there was no opinion of psychologist taking part in the interview.
Age assessment of unaccompanied children
Polish law provides for an identification mechanism for unaccompanied children.[21] An asylum seeker who claims to be a child, in case of any doubts as to their age, may have to undergo medical examinations – with their consent or with the consent of their legal representative –to determine their actual age. There are no additional criteria set in law.
In case of lack of consent, the applicant is considered an adult. The results of the medical examination should contain the information if an asylum seeker is an adult. In case of any doubts, the applicant is considered a minor.[22] Undertaking a medical examination is triggered by the authorities and shall be ensured by the BG.[23] The law states that examination should be done in a manner respecting the dignity and using the least invasive technique.[24]
[1] Article 68(1) Law on Protection.
[2] Article 68(3)-(6) Law on Protection.
[3] Epidemiological filter was realised under the Swiss Polish Cooperation Programme, see: https://bit.ly/3mMGtDd.
[4] Information provided by the Office for Foreigners on 9 April 2020.
[5] Poland, UN Web TV, Consideration of Poland (Cont’d) – 1762nd Meeting, 67th Session of Committee Against Torture, 24 July 2019, available at: https://bit.ly/2RXiHqd, and reply of Poland, UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/40ElLYH .
[6] Ibidem.
[7] Pachocka, M. and Sobczak-Szelc K., ‘Refugee Protection Poland – Country Report’, Multilevel Governance of Mass Migration in Europe and Beyond Project (Horizon2020), January 2020, available at: https://bit.ly/2U1A9uL; 69.
[8] Association for Legal Intervention (Stowarzyszenie Interwencji Prawnej, SIP), Komentarz SIP: sprawozdanie Polski przed Komitetem przeciwko Torturom ONZ (Association for Legal Intervention comments on Poland’s reporting before UN Committee against Torture), 30 July 2019, available at: https://bit.ly/3oKWeQk.
[9] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at: https://bit.ly/3LnxrIB, 13.
[10] The Supreme Administrative Court, judgments from 16.05.2019, II OSK 3536/18 and from 13.06.2019, II OSK 3769/18 (not published).
[11] The Voivodeship Administrative Court in Warsaw judgment from 4.04.2019, IV SA/Wa 353/19 (not published).
[12] Information from HFHR obtained on 30 October 2019 and 10 January 2020.
[13] Ordinance of 5 November 2015 on the asylum application form (Rozporządzenie Ministra Spraw Wewnętrznych z dnia 5 listopada 2015 r. w sprawie wzoru formularza wniosku o udzielenie ochrony międzynarodowej), available (in Polish) at: http://bit.ly/1hljviW.
[14] The Commissioner for Human Rights, Report on the situation of foreigners in detention centres during the crisis on Polish-Belarussian border, [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi. Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur], June 2022, available (PL) at: https://bit.ly/40cpYCt, 40.
[15] The Commissioner for Human Rights, Report on the situation of foreigners in detention centres during the crisis on Polish-Belarussian border, [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi. Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur], June 2022, available (PL) at: https://bit.ly/40cpYCt, 40.
[16] UN OHCHR, Committee against Torture concludes its consideration on the report of Poland, 24 July 2019, available at: https://bit.ly/2Sgy10j.
[17] Pachocka, M. and Sobczak-Szelc K., ‘Refugee Protection Poland – Country Report’, Multilevel Governance of Mass Migration in Europe and Beyond Project (Horizon2020), January 2020, available at: https://bit.ly/2U1A9uL, 69.
[18] Information provided by the Office for Foreigners on 9 April 2020.
[19] Information provided by the Office for Foreigners, 1 February 2018.
[20] The Supreme Administrative Court judgement, II OSK 373/21, see: Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2021 r. [Report SIP in action. Rights of foreigners in Poland in 2021], available (PL) at: https://bit.ly/43Cozbo, page 29-30.
[21] Article 32 Law on Protection.
[22] Article 32(5) Law on Protection.
[23] Article 32 Law on Protection.
[24] Article 32(4) Law on Protection.