Dublin

Poland

Country Report: Dublin Last updated: 24/05/22

Author

Independent

General

 

Dublin statistics: 2021

 

Outgoing procedure Incoming procedure
Requests Transfers Requests Transfers
Total 416 143 Total 3,525 265
Take charge 57 13 Take charge 2,138 150
Take back 359 130 Take back 1,387 115
Romania 147 76 Germany 927 54
Germany 62 18 France 253 6
Bulgaria 41 5 Belgium 81 0

Source: Office for Foreigners, Transfers – the Border Guards.

 

Outgoing Dublin requests by criterion: 2021
Dublin III Regulation criterion Requests sent Requests accepted
Take charge”: Articles 8-15: 57 25
 Article 8 (minors) 0 0
 Article 9 (family members granted protection) 9 3
 Article 10 (family members pending determination) 4 0
 Article 11 (family procedure) 2 0
 Article 12 (visas and residence permits) 17 17
 Article 13 (entry and/or remain) 5 1
 Article 14 (visa free entry) 0 0
“Take charge”: Article 16 2 0
“Take charge” humanitarian clause: Article 17(2) 18 4
“Take back”: Article 18 359 173
 Article 18 (1) (b) 289 61
 Article 18 (1) (c) 4 43
 Article 18 (1) (d) 66 69
 Article 20(5) 0 0

Source: Office for Foreigners.

Incoming Dublin requests by criterion: 2021
Dublin III Regulation criterion Requests received Requests accepted
“Take charge”: Articles 8-15 2138 669
 Article 8 (minors) 0 0
 Article 9 (family members granted protection) 8 3
 Article 10 (family members pending determination) 12 0
 Article 11 (family procedure) 18 0
 Article 12 (visas and residence permits) 703 587
 Article 13 (entry and/or remain) 1366 78
 Article 14 (visa free entry) 24 0
“Take charge”: Article 16 0 0
“Take charge” humanitarian clause: Article 17(2) 7 1
Take back”: Articles 18 and 20(5) 1387 864
 Article 18 (1) (b) 1330 391
 Article 18 (1) (c) 17 325
 Article 18 (1) (d) 33 148
 Article 20(5) 7 0

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 once in 2021, 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.[3] 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.[4] The ruling of the CJEU in Mengesteab,[5] 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 Office for Foreigners responded, that in 2021 only Greece was on the list of countries to be asked for individualised guarantees, but since there was no positive decision, no transfers to Greece took place anyway.

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]

However, in 2020 and 2021, 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. In addition, some Member States required additional documents regarding health of the person (e.g. Spain).[7] The Office for Foreigners also highlighted problems with regard to transfers to Bulgaria and Romania in 2021 (postponed transfers, the obligation to send information about Covid-19 vaccination).[8]

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 2021, 3 persons was transferred from Poland under escort.[9]

There is also a legal basis for detention in Dublin outgoing procedures, based on the risk of absconding (see section on Grounds for Detention).[10] The Border Guard reported that in 2020, 33 (down from 63 in 2019) persons were transferred under Dublin from detention centres.[11] No information about the legal grounds of the detention in practice was provided.[12]

 

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.[13]

 

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.

The average time for the appeal procedure in Dublin cases in 2021 was 33 days (down from 59 days in 2020). In 2021 the Refugee Board issued 65 decisions (up from 16 in 2020) in Dublin proceedings, with only one decision overturning the decision of the first instance authority.[14]

 

Legal assistance

Free legal assistance is offered as described in the section on Regular Procedure. State legal aid covers preparing an appeal and representation in the second instance.[15]

 

Suspension of transfers

In 2021 requests were submitted to any country. Only Greece was to be asked for individual guarantees but in practice it did not take place, because there was no positive decision and no transfer was carried out.

 

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 to 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.[17]

In 2021 the number of decisions on discontinuation of the proceedings for international protection was 1,073.[18] The vast majority of these decisions were issued because the applicant withdrew the application, but not in the 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 go to the interview, or left Poland.[19] In 2021, the Office registered 62 requests to reopen the procedure, lodged within 9 months-time limit.

A development identified by SIP in the report for 2020 may be relevant: there were cases of Russian, Ukrainian and Tajik applicants, where the authorities gave importance to the fact that the family member of the applicant had been granted protection in another EU Member State. The Refugee Board for instance ruled that the fact of granting international protection in Germany to the closest family members of the applicant should be considered a new relevant circumstance, increasing the probability of granting protection to the applicant. Therefore even if this was their subsequent application it should not be considered inadmissible.[20]

In March 2021 the Commissioner for Human Rights published a report[21] within the National Mechanism for the Prevention of Torture, in which cases of improper detention of Dublin returnees with PTSD in the previous years were described. 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. These cases were reported in 2016, but After visits in detention centres in 2018 and 2019, the Commissioner for Human Rights confirmed that the problem persisted.[22] Although the Border Guard implemented guidelines (algorithm) 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).[23]

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.[24] In the report for 2020 published by SIP in 2021, the NGO confirms that problems with proper identification of victims of violence still remains problematic.[25]

This problem does not concern solely 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, 9 March 2022.

[2] Information provided by the Border Guard Headquarter, 4 March 2022.

[3] Article 36(2) Law on Protection.

[4] Article 36(1) Law on Protection.

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

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

[7] Ibidem.

[8] Information provided by the Office for Foreigners, 26 January 2022.

[9] Information provided by the Border Guard, 4 March 2022.

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

[11] No information provided for 2021.

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

[13] Ordinance 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.

[14] Information provided by the Refugee Board, 21 January 2022.

[15] Article 69e Law on Protection.

[16] Information provided by the Office for Foreigners, 26 January 2022.

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

[18] Article 40 Law on Protection.

[19] Article 40 Law on Protection.

[20] 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, 22.

[21] 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 Mechanism for the Prevention of Torture in the detention centres in Poland, available (PL) at: https://bit.ly/3LnF3ef.

[22] 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.

[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, Report from Biala Podlaska, 7 January 2019, available (in Polish) at: http://bit.ly/2BU7ej5, 7.

[24] 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.

[25] 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.

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