Dublin

Poland

Country Report: Dublin Last updated: 16/04/21

Author

Independent

General

Dublin statistics: 2020

Outgoing procedure Incoming procedure
  Requests Transfers   Requests Transfers
Total 228 29 Total 2,282 258
Take charge 28 5 Take charge 834 97
Germany 10 1 Germany 284 40
Finland 4 2 France 191 5
Greece 4 0 Sweden 139 27
Take back 200 24 Take back 1,448 161
Germany 45 11 Germany 863 118
Romania 42 1 France 374 24
Greece 32 0 Belgium 92 1

Source: Office for Foreigners

Outgoing Dublin requests by criterion: 2020
Dublin III Regulation criterion Requests sent Requests accepted
Take charge”: Articles 8-15: 28 10
 Article 8 (minors) 0 0
 Article 9 (family members granted protection) 3 1
 Article 10 (family members pending determination) 3 0
 Article 11 (family procedure) 0 0
 Article 12 (visas and residence permits) 9 7
 Article 13 (entry and/or remain) 5 1
 Article 14 (visa free entry) 0 0
“Take charge”: Article 16 0 0
“Take charge” humanitarian clause: Article 17(2) 8 1
“Take back”: Article 18 200 74
 Article 18 (1) (b) 126 19
 Article 18 (1) (c) 1 7
 Article 18 (1) (d) 73 48
 Article 20(5) 0 0

Source: Office for Foreigners

Incoming Dublin requests by criterion: 2020
Dublin III Regulation criterion Requests received Requests accepted
“Take charge”: Articles 8-15 834 524
 Article 8 (minors) 0 0
 Article 9 (family members granted protection) 0 0
 Article 10 (family members pending determination) 5 0
 Article 11 (family procedure) 14 1
 Article 12 (visas and residence permits) 749 521
 Article 13 (entry and/or remain) 41 2
 Article 14 (visa free entry) 17 0
“Take charge”: Article 16 0 0
“Take charge” humanitarian clause: Article 17(2) 8 0
Take back”: Articles 18 and 20(5) 1,448 1,181
 Article 18 (1) (b) 1370 432
 Article 18 (1) (c) 19 574
 Article 18 (1) (d) 53 174
 Article 20(5) 6 1

Source: Office for Foreigners, SI Pobyt

Application of the Dublin criteria

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).

The dependent persons and discretionary clauses

The humanitarian clause was applied in 8 cases in 2020, while the sovereignty clause was not used at all.[1] No information on the circumstances was provided.

Procedure

The Head of the Office for Foreigners is responsible for Dublin procedures and the Border Guard 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 ruling of the CJEU in Mengesteab,[4] allowing Member States to apply the Dublin procedure as of the moment of registration before the lodging of the application, has not changed the practice of the Office for Foreigners, which starts the Dublin procedure as of the moment of lodging of the application.

According to the Office for Foreigners, if the authorities decide to apply the Dublin procedure, asylum seekers are informed about it. They are 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 Tarakhel v. Switzerland judgment of the European Court of Human Rights (ECtHR) has not influenced the practice of the Head of the Office for Foreigners in Dublin cases vis-à-vis Italy in 2015-2017, as there are not many Dublin cases concerning Italy. The Office for Foreigners noted however that the only foreigners transferred from Poland to Italy are single men, while vulnerable persons are allowed to stay in Poland.[5] Also in 2018 there were no cases where the Tarakhel judgment would have been relevant.[6] In 2020 the Office informed that every case is examined individually. In 2020 Dublin requests were submitted to any country and depending on the reply, every case is considered individually. Guarantees regarding the compliance with EU directives on international protection are automatically required from Greece and Bulgaria.[7]

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.[8]

However, in 2020, due to the COVID-19 pandemic, the waiting period was longer. Dublin transfers were suspended between 16 March and 8 July 2020. Subsequently, the transfers were carried out, but the procedure of testing for COVID on 72 hours before the plane was to land in the territory of another Member State as well as waiting for results ended up delaying the purchase of plane tickets. Apart from that some Member States expected additional documents regarding health (e.g. Spain).[9]

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 centres were transferred under escort. The Border Guards reported that in 2020, 1 person was transferred from Poland under escort.[10]

There is also a legal basis for detention in Dublin outgoing procedures, based on the risk of absconding (see section on Grounds for Detention).[11] The Border Guard reported that in 2020, 33 (down from 63 in 2019) persons were transferred under Dublin from detention centres.[12] No information about the legal grounds of the detention in practice was provided.[13]

According to the Office for Foreigners, transfers to Greece were the most problematic in 2020. Greece did not accept the requests and if it did, transfers were not possible.[14]

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.[15]

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 2020 was 59 days (down from 110 days in 2019). In 2020 the Refugee Board issued 16 decisions (down from 33 in 2019) in Dublin proceedings, none of which overturned the decision of the first instance authority.[16]

 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.[17]

Suspension of transfers

In 2020 requests were submitted to any country. Greece and Bulgaria are automatically asked to present individual guarantees for the applicants concerned.[18]

The situation of Dublin returnees

There is no information on obstacles in accessing the asylum procedure for Dublin returnees. There were cases where HFHR tried to follow asylum seekers transferred back from another country and learned from the SG that they applied straight away for voluntary return and left the territory. The reason why they chose return over a (re)examination of their asylum claim is unknown. The time limit to reopen the procedure 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.[19]

In 2020 the number of decisions on discontinuance of the proceedings for international protection was 1,044.[20] These decisions concerned 1,556 persons. The vast majority of these decisions were issued because the applicant did not reach the reception centre after applying for protection or left the reception centre and did not come back within 7 days (1,285 persons).[21] In 2020, 124 persons requested a reopening of the procedure within 9 months.

In September 2017 the Commissioner for Human Rights published a report within the National Mechanism for the Prevention of Torture, in which cases of improper detention of Dublin returnees with PTSD were described.[22] 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 in order to promptly identify victims of torture and violence as well as persons whose mental and physical condition rule out their placement in detention. After visits in detention centers in 2018 and 2019, the Commissioner for Human Rights confirmed that the problem persists.[23] Although the Border Guard implemented guidelines on how to deal with persons requiring special treatment, they address treatment in detention, rather than providing that the person identified as a victim of violence should be released from detention (as required by the law).[24] In the report from monitoring in 2020 however other concerns were stressed, such as limited access to psychological assistance.[25] NGOs add that the system in place is not effective because a person who is a victim of violence should not be put in detention at all, i.e. identification should be conducted before placing in detention and not in detention.[26] This problem does not concern merely Dublin returnees, as described in detail below (see Guarantees for vulnerable groups and Detention of vulnerable applicants).

[1]  Information provided by the Office for Foreigners, 26 January 2021.

[2]  Article 36(2) Law on Protection.

[3]  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 provided by the Office for Foreigners, 1 February 2018.

[6]  Information provided by the Office for Foreigners, 14 January 2019.

[7]  Information provided by the Office for Foreigners, 26 January 2021.

[8]  Information provided by the Border Guard, 5 February 2021.

[9]  Ibidem.

[10] Information provided by the Office for Foreigners, 26 January 2021.

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

[12]  However, according to the official statistics of the Office for Foreigners reported to the Eurostat, there were only 58 transfers in 2019 as a whole.

[13]  Information provided by the Border Guard, 5 February 2021.

[14] Information provided by the Office for Foreigners, 26 January 2021.

[15] Regulation of the Ministry of the Interior of 4 November 2015 on the asylum application form (Rozporządzenie Ministra Spraw Wewnętrznych z dnia 4 listopada 2015 r. w sprawie wzoru formularza wniosku o udzielenie ochrony międzynarodowej), available (in Polish) at: http://bit.ly/1l97b7F.

[16] Information provided by the Refugee Board, 16 January 2020.

[17] Article 69e Law on Protection.

[18] Information provided by the Office for Foreigners, 26 January 2021.

[19] Article 40(6) Law on Protection.

[20]  Article 40 Law on Protection.

[21]  Information provided by the Office for Foreigners, 26 January 2021.

[22] Commissioner for Human Rights, Report on the activities of the National Mechanism for the Prevention of Torture in 2016, 2017, available at: http://bit.ly/2sBpmvy, 76.

[23] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Lesznowoli (wyciąg), 18 December 2018, availble (in Polish) at: http://bit.ly/2SO3DgP.

[24] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Lesznowoli (wyciąg), 18 December 2018, availble (in Polish) at: http://bit.ly/2SO3DgP, Report from Biala Podlaska, 7 January 2019, available (in Polish) at: http://bit.ly/2BU7ej5, 7.

[25] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Lesznowoli (wyciąg), 29 December 2020, availble (in Polish) at: https://bit.ly/3posiE4 .

[26] 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/2UncJR7.

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