Dublin

General

Dublin statistics: 2023

Source: Office for Foreigners.

Source: Office for Foreigners.

Source: Office for Foreigners

As the statistics show, Poland is mainly a country receiving Dublin requests from other countries. The most frequent case is when an applicant has his application under examination in Poland and made another application in another Member State (or stays there without a residence document).

Procedure

The Head of the Office for Foreigners is responsible for Dublin procedures and the Border Guard is responsible for transfers.^[2] All asylum seekers over the age of 14 are fingerprinted and checked in Eurodac at the time of lodging their asylum application. In all cases, the Head of the Office for Foreigners applies the Dublin procedure.^[3] The CJEU’s ruling in Mengesteab,^[4] which allows Member States to implement the Dublin procedure from the time of registration before the submission of an application, has not altered the practice of the Office for Foreigners. The Office still initiates the Dublin procedure from the time when the application is submitted.

According to the Office for Foreigners, if the authorities decide to apply the Dublin procedure, asylum seekers are informed about it. They are also informed about the following steps of the procedure e.g. decision received from another Member State, or the need to submit additional documents.

Individualised guarantees

The Office for Foreigners responded, that in 2023 and 2022 only Greece was on the list of countries to be asked for individualised guarantees.^[5] However, since Greece does not provide guarantees to hold on to reception standards, no transfers are carried out based on the decision of the European Commission from 8 December 2016.

Transfers

According to the Border Guard, the transfer is organised within days from the moment the decision on transfer becomes final, bearing in mind the time in which other states expect to be informed about the transfer in advance and depending on the availability of plane tickets, etc.^[6]

Asylum seekers are transferred under escort only when there is a risk of absconding or if they have already absconded before. According to the Office for Foreigners, it concerns applicants staying in detention, but there are also cases where applicants staying outside the detention centres were transferred under escort. The Border Guards reported that in 2023, 7 persons were transferred from Poland under escort.^[7]

There is also a legal basis for detention in Dublin outgoing procedures, based on the risk of absconding (see the section on Grounds for Detention).^[8] The Border Guard reported that in 2023, 109 persons were transferred from detention centres under the Dublin procedure. No information about the legal grounds for detention was provided in practice.^[9]

Personal interview

There is no separate interview where an applicant’s case falls under the Dublin Regulation. Additional questions for the Dublin procedure form an integral part of the asylum application form.^[10]

Appeal

Asylum seekers can appeal against decisions taken in the Dublin procedure to the Refugee Board (and then to the Voivodeship Administrative Court in Warsaw and the Supreme Administrative Court) within 14 days following the same procedure described in the section on appeals in the Regular Procedure: Appeal.

The average time for the appeal procedure in Dublin cases in 2023 was 58 days (up from 32 days in 2022). In 2023, the Refugee Board issued 16 decisions (down from 33 in 2022) in Dublin proceedings (covering 18 persons), with only 2 decisions overturning the decision of the first instance authority.^[11]

Legal assistance

Free legal assistance is offered as described in the section on Regular Procedure: Legal Assistance. State legal aid covers preparing an appeal and representation in the second instance.^[12]

Suspension of transfers

In 2023, requests were submitted to all countries except Greece.^[13]

The situation of Dublin returnees

There are concerns about whether, under the provisions of the Polish law, Dublin returnees are always entitled to re-opening their first proceedings on international protection. The time limit to reopen the procedure, set out in the Law on Protection, is 9 months. Contrary to Article 18(2) of the Dublin III Regulation, in cases where e.g. the applicant did not wait for examination of his or her asylum claim in Poland but went to another Member State and did not come back to Poland within 9 months, the case will not be evaluated under the regular “in-merit” procedure. Their application lodged after this deadline will instead be considered as a subsequent application and subject to an admissibility procedure.^[14] Moreover, if a person left Poland when their application was processed by the appeal authority and the procedure was discontinued by the Refugee Board, there is no possibility of reopening the procedure, even within the 9-month time limit.^[15] Again, in such a situation, the application of the returnee will not re-open the first proceedings and will be considered as a subsequent application.

Moreover, HFHR reports, that even in a situation when a returnee is entitled to re-open their first procedure, the Border Guards in the detention centres for foreigners make them lodge the subsequent application instead, which is then subject to the admissibility procedure.^[16] Usually, the second application, based on the same facts as the first one, would be declared inadmissible. Domestic law provides no exception in that respect to the Dublin returnees. Such a situation could therefore violate Article 18(2) of the Dublin III Regulation. The inability to continue the first asylum procedure also means that the Dublin returnees who had already spent the maximum period of 6 months in detention before having left Poland, could be again placed in detention centres after their transfer. In such cases, the summary detention period exceeds 6 months.^[17]

These findings are supported by the statistics presented by the Office for Foreigners. In 2023, the number of decisions discontinuing international protection applications was 2,297.^[18] The vast majority of these decisions were issued because the applicant withdrew the application, but not in an explicit way, e.g. did not reach the reception centre after applying for protection or left the reception centre and did not come back within 7 days, did not arrive to the interview, or left Poland.^[19] In 2023, the Office registered 185 requests to reopen the procedure, lodged within 9 months-time limit and issued 70 decisions considering the application admissible. There is no information on the number of requests lodged after the 9 months-time limit, but there were 1,473 persons who lodged subsequent applications in 2023. In the cases of 814 persons, the Office for Foreigners considered the application inadmissible.^[20]

In 2023, the Provincial Administrative Court in Warsaw specified that the fact that the migrant had left Poland did not relieve the authorities of their duties to consider whether there were grounds for granting a residence permit for humanitarian reasons in the return proceedings case, which might have relevant effects on the cases of Dublin returnees.^[21]

HFHR also reported cases in which the courts of other Member States decided not to transfer a person seeking protection to Poland under Dublin.^[22] In a judgment from 5 September 2022, the Administrative Court of Minden found that due to existing deficiencies in the refugee reception system, returnees to Poland could be subject to inhuman or degrading treatment, contrary to Article 4 of the EU Charter of Fundamental Rights.^[23] A similar justification was given by the Administrative Court in Hanover (Germany) in a judgment of 7 October 2022, which considered the poor conditions in guarded centres for foreigners and the risk of nearly automatic detention.^[24] Also, the Court in the Hague in the judgement from 31 May 2022, prevented a Dublin transfer to Poland based on the assumption that the independence of the judiciary in Poland is under serious pressure and that there are serious concerns about whether the universal human rights of the LGBTQ+ persons are respected in Poland.^[25] However, in 2023 the latter Court generally upheld transfers to Poland, relying on interstate trust.^[26]

Last but not least, on 15 June 2022, the Court in the Hague, examining the case of a person seeking international protection who was to be returned to Poland, asked the CJEU a preliminary question regarding the Dublin transfers to countries that, despite being members of the European Union, ’seriously and systematically infringe the EU law’.^[27]

In March 2021, the Commissioner for Human Rights (Ombudsman) released a report in the framework of the National Preventive Mechanism, which detailed incidents of inappropriate detention of vulnerable Dublin returnees in the preceding years.^[28] According to the report, the problems occurred due to numerous procedural shortcomings during the transfer of a family to Poland by the German police, as well as the lack of appropriate operational algorithms that should have been implemented to promptly identify victims of torture and violence as well as persons whose mental and physical condition rule out their placement in detention.

The problem of identification of vulnerable persons and detention of vulnerable persons does not concern solely the Dublin returnees, as described in detail below (see Guarantees for vulnerable groups and Detention of vulnerable applicants).

^[1] Information provided by the Border Guard, 13 January 2023.

^[2] Article 36(2) Law on Protection.

^[3] The Dublin procedure should be applied in every case: Article 36(1) Law on Protection.

^[4] CJEU, Case C-670/16, Tsegezab Mengesteab v. Bundesrepublik Deutschland (GC), Judgment of 26 July 2017.

^[5] Information from the Office for Foreigners, 16 February 2024.

^[6] Information provided by the Border Guard, 13 January 2023.

^[7] Information provided by the Border Guard, 18 March 2024.

^[8] Article 398(1)(3a) Law on Foreigners.

^[9] Information provided by the Border Guard, 18 March 2024.

^[10] Regulation on the application form (see table on legislation).

^[11] Information provided by the Refugee Board, 3 April 2024.

^[12] Article 69e Law on Protection.

^[13] Information provided by the Office for Foreigners, 16 February 2024.

^[14] Article 40(6) Law on Protection.

^[15] Information provided by the Refugee Board on 12 January 2023, DOB.WR.1510.1.2023.

^[16] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at: https://bit.ly/3oaqWBQ, page 6.

^[17] Ibidem, page 7.

^[18] Information provided by the Office for Foreigners, 16 February 2024.

^[19] Article 40 Law on Protection.

^[20] Information provided by the Office for Foreigners, 16 February 2024.

^[21] SIP, Provincial Administrative Court (WSA): prerequisites for a humanitarian residence permit should be examined even if the migrant is outside Poland, 13 Feburary 2024, available at: https://bit.ly/3Ux7lbP.

^[22] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at: https://bit.ly/3oaqWBQ, page 6.

^[23] DE: Regional Administrative Court [Verwaltungsgerichte], VG Minden, 12 L 599/22.A, available (in German) at: https://bit.ly/3Nd8ovs.

^[24] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, 6.

^[25] Ibid.

^[26] Judgement of the District Court of the Hague, NL23.34067, available at: ECLI:NL:RBDHA:2023:19323, Rechtbank Den Haag, NL23.34067, NL23.34072, NL23.34075 en NL23.34078 (rechtspraak.nl).

^[27] CJEU, C-392/22, reference for preliminary ruling lodged in 15 June 2022 by Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch, see: https://bit.ly/41dgloh.

^[28] The Commissioner for Human Rights, Obcokrajowcy w detencji administracyjnej Wyniki monitoringu Krajowego Mechanizmu Prewencji Tortur, Nieludzkiego, Poniżającego Traktowania lub Karania BRPO w strzeżonych ośrodkach dla cudzoziemców w Polsce [Foreigners in administrative detention. Summary of monitoring within the National Preventive Mechanism in the detention centres in Poland, March 2021, available (in Polish) at: https://bit.ly/3LnF3ef.