Regular procedure

Poland

Country Report: Regular procedure Last updated: 30/11/20

Author

Independent

The Head of Office for Foreigners is a state authority which is responsible, among others, for taking first instance decisions on granting and withdrawing protection status, deciding on the state’s responsibility under the Dublin Regulation and on social assistance provided in the asylum procedure. He/she is also responsible for the legalisation of the stay of foreigners in Poland and issuing visas and is second-instance authority in residence permit procedures.

The time limit set in law for the Head of the Office for Foreigners to make a decision on the asylum application is 6 months.[1] This period can be prolonged to 15 months if the case is considered complicated (319 cases in 2018),[2] if there are many asylum seekers applying at the same time (11 cases in 2018) or if the asylum seeker did not fulfil the obligation of presenting all the evidence and documents or attending the interview (1 case in 2018).[3] The Office for Foreigners did not provide updated figures for the year 2019. The Office stressed that there are no formal guidelines on what is considered a complicated case and the decision in this regard is taken individually.[4]

In 2019 the average processing time for a decision on the merits was 152 days. The longest processing time took 2,023 days and the shortest 1 day.[5]

According to the law, if the decision is not issued within 6 months, the general provisions on inaction of the administrative authority apply,[6] therefore the Head of the Office for Foreigners should inform the applicant in writing about the reasons of delay and the applicant can submit a complaint to the second-instance authority. In practice, information about the reasons for delay is provided in a very general way and complaints to the second-instance authority hardly ever happen. The most significant consequence for the applicant of not receiving a decision on an asylum application within 6 months is a possibility to apply for a work permit on this basis (see Access to the Labour Market).[7] The Head of the Office for Foreigners then issues a certificate, which – together with a temporary ID – gives a right to work in Poland until the end of the procedure.

As of 31 December 2019 there were 3,364 persons whose cases were pending before the Office for Foreigners.[8]

 

Prioritised examination and fast-track processing

 

There is no legal basis for prioritising certain types of cases. The Office for Foreigners has confirmed that in practice cases of vulnerable applicants and detainees are prioritised if this is possible.[9] The average time to process Syrian cases is shorter than the general average (108 days) and in Ukrainian cases it is longer (173 days).

 

Personal interview

 

Personal interviews are conducted by the Office for Foreigners and are generally mandatory in a regular procedure, unless:

  • A decision on granting refugee status can be issued on the basis of evidence already gathered; or
  • An applicant is not fit to be interviewed (e.g. due to health or psychological problems).[10]

The Office for Foreigners does not collect data on the numbers of interviews.[11] Nevertheless the Office for Foreigners confirmed that in 2019 there were cases where the interview was not conducted because the applicant was not fit for interview.

Interpretation

Interpretation is ensured respectively by the Head of the Office for Foreigners (for the first instance proceedings) and the Refugee Board (for the appeal proceedings). The interview should be conducted in a language understandable for the applicant. In the asylum application, the asylum seeker has to declare their mother tongue as well as any fluent knowledge of other languages. Applicants can further request the interviewer and/or interpreter to be of a specific gender.[12]

The contract established between the Office for Foreigners and interpretation services regulates the quality, liability, and specifies the field (asylum). Interpretation is available in most of the languages spoken by the asylum applicants in Poland. In 2018 reported problems concerned very rare languages, like Sinhala, Tamil, Bengali (Bangla) or Sorani dialect of Kurdish. Interpreters of these languages are available, but not at any time, that is why the waiting time for interview can be prolonged.[13] In 2019, NGOs reported cases where applicants were held responsible for inconsistencies in testimonies, which appeared because of improper interpretation.[14]

Recording and report

Audio or video recording is possible under national legislation if an applicant was informed about this fact and technical means allow for it, [15] but this is not implemented in practice because there are no technical means for it (no cases in 2019).

The law provides that a copy of the report of the interview should be handed in to the applicant after a personal interview. In some cases the applicants do not take or keep them, but they can ask for a copy at any stage of the proceedings. The report is prepared in Polish and contains all the questions asked and responses received, but it is not a verbatim transcript. Although at the end of the interview the report is read to the applicant in an understandable language and before signing it, interviewees can make corrections (and are informed about such possibility), NGOs stress, that there is a recurring problem with this way of registering the interviews. Very often it happens that only after the interview the applicant goes through the copy of the interview report with a person who knows Polish and their national language and the inconsistencies in testimonies come to light. However, any comments and clarifications made in the appeal or in subsequent proceedings are generally not taken into account. Some NGOs suggest that recording the interview would allow to establish what was said during the interview and whether it was translated properly.[16]

Videoconferencing is used for interviews in the detention centres. NGOs find this practice problematic in terms of interpretation and with regard to vulnerable applicants, when presence of psychologist is required.

 

Appeal

 

Appeal before the Refugee Board

Decisions of the Head of the Office for Foreigners in the regular procedure can be appealed to the Refugee Board within 14 calendar days. The decision (without a justification) as well as guidance on how to appeal is translated into the language that the applicant for asylum had previously declared as understandable; the motivation of the decision is not translated. The applicant can submit the appeal in their own language.

The Refugee Board is an administrative body, consisting of twelve members, supported in their work by six employees, not involved in the decision-making process.[17] In the regular procedure, decisions are taken by three members. The procedure includes an assessment of the facts and there is a possibility of hearing applicants. The Head of the Office for Foreigners is not a party to these proceedings. The time limit set in law for the appeal procedure is 1 month.[18] The appeal has suspensive effect.[19] Neither hearings nor decisions of the Refugee Board are made public.                             

In 2019, the average processing time for the Refugee Board to issue a decision in appeal proceedings was 131 days for the cases which started and finished in 2019. The longest processing time in 2019 took 327 days and the shortest – 1 day. In 21 cases (down from 35 in 2018) the Refugee Board decided to hear the applicant, and there were no cases of hearing a witness in 2019.[20]

The Refugee Board may annul the first instance decision, overturn it, or confirm it. In the majority of cases, the decisions of the Head of the Office for Foreigners were confirmed. This was the case for 1,610 persons who appealed the decision in 2019. In that year, the Refugee Board granted refugee status to 4 persons only and subsidiary protection to 7 persons.[21]

After the negative decision or a decision on discontinuing the asylum procedure becomes final, the respective authority informs the Border Guard and the return proceedings can be launched.[22]

Onward appeal before the Administrative Court

After the administrative appeal procedure before the Refugee Board, the decision of the latter can be further appealed to the Voivodeship Administrative Court in Warsaw within 30 days, but only points of law can be litigated at this stage.[23] The case is revised ex tunc. There is no fee for the procedure. This onward appeal does not have a suspensive effect on a final administrative decision. However, asylum seekers can ask the court to suspend a decision for the time of the court proceedings, if the decision can cause irreversible harm. The court procedure is adversarial; both the Refugee Board and the asylum seeker are parties before the court. The ruling of the Voivodeship Administrative Court in Warsaw can itself be appealed to the Supreme Administrative Court by lodging a cassation complaint, based exclusively on the legal conditions foreseen in the law, also accompanied by a request for suspension of the administrative decision.[24]

The Law on Foreigners separates asylum proceedings and return proceedings, which means that a return decision is not issued within the asylum procedure. Return proceedings are started after the final administrative decision refusing international protection is served to the person concerned. However under the current legal framework it may happen that the return proceedings lead to a return decision before the Voivodeship Administrative Court in Warsaw examines the appeal against the final administrative decision refusing protection to the applicant.

In numerous cases in 2018, the Supreme Administrative Court  decided not to grant suspensive effect to an appeal against a final negative decision on international protection, on the basis that it does not impose an obligation to leave the territory (only a return decision does so), and therefore the condition of a risk of irreparable harm is not fulfilled.[25] However, in the 20 December 2018 ruling, the Supreme Administrative Court held that, although in numerous cases the same Court was of the opinion that suspensive effect due to the threat of irreparable harm can only be granted to an appeal against a final return decision, this can be an insufficient safeguard and therefore decided to suspend the enforcement of the final negative asylum decision.[26] According to the information provided by the Voivodeship Administrative Court, in 2018 in 86 cases the Court refused to grant suspensive effect and only in one case decided to grant suspensive effect to the onward appeal against a negative asylum decision.[27]

In 2019 the trend has changed and the court started to grant a suspension in those cases (the Voivodeship Administrative Court decided to suspend the enforcement of the negative asylum decision in 34 cases and refused it in 21 cases).[28] In these cases article 46(5) of EU Asylum Procedures Directive is brought up in favour of suspension. More importantly, the Supreme Administrative Court issued judgements in 2019 in which the suspensive effect was upheld.[29]

According to the statistics of the Refugee Board, in 2019 there were 293 complaints submitted to the Voivodeship Administrative Court against the decisions of the Refugee Board. The Voivodship Administrative Court in Warsaw annulled the Refugee Board’s decision in 18 cases, in 216 cases it dismissed the complaint. In 65 cases cassation complaints were lodged. The Supreme Administrative Court annulled the judgment of the Voivodship Administrative Court as well as the decision of the Refugee Board in 12 cases. In 61 cases the cassation complaint was dismissed.[30]

 

Legal assistance

 

A State legal aid system was introduced in 2015 and it covers:

  • Legal information, provided by the employees of the Office for Foreigners in cases concerning revocation of protection in the first instance; and
  • Legal aid provided by advocates, legal counsellors and NGOs in the second instance. The latter will involve preparing appeal and providing legal representation in cases concerning refusal of protection, discontinuance of the procedure, and refusal of reopening the procedure, Dublin, inadmissibility of the application and revocation of protection.[31]

The system is managed by the Head of the Office for Foreigners who contracts lawyers, legal counsellors and NGO lawyers. Legal aid is provided by approximately 140 legal counsellors, 200 advocates and 3 NGOs: the Association for Legal Intervention (SIP), The Rule of Law Institute and Halina Niec Legal Aid Centre.[32]

In 2019, 304 asylum seekers benefited from the system of free legal aid. Taking into account the overall number of appeals (1,571) in 2019,[33] the capacity for providing legal aid is definitely not sufficient. There is no information on the number of cases in which legal aid was granted by NGOs or by other legal aid providers.

Before the system of legal aid was created, legal assistance had been provided by NGOs under European Refugee Fund (ERF)-funded projects. This funding, now provided under AMIF, practically has been suspended since mid-2015. One call for projects was made invalid, others were cancelled, after the announcement of the results had been postponed three times.[34] In September 2017 two NGOs (the HFHR and the Association for Legal Intervention) prepared a report where the history of (lack of) funding and its consequences for NGOs have been presented.[35]

The situation did not change in 2018. NGOs were forced to limit their personnel and fields of assistance provided so far (legal, psychological or integration assistance). Some NGOs reported that in 2018 in Warsaw the waiting time to see a lawyer was one month.[36] They organised fundraising events to be able to continue their activities[37] or rely on voluntary work. However, as NGOs noted themselves, some fields of assistance (such as psychological assistance) cannot be provided on a voluntary basis of voluntary by the staff.[38] Available funding under AMIF has so far been distributed among the Voivodes (local governors), which can implement projects in partnership with NGOs (as of mid-2018 there were only 5 such projects). However, these projects concern migrants, not asylum seekers. As NGOs stress, they had to limit their activities and legal assistance in detention centres in 2019 because of the lack of funding (see Judicial review of the detention order).

In 2019 for the first time since 2016 calls for proposals have been opened for NGOs. NGOs submitted 62 applications, compared to 142 in 2016 (the calls that eventually were cancelled). This is probably the result of the lack of funding for over 3 years – some NGOs reduced their staff and activities and some ceased to exist. Eventually 27 applications for projects were accepted but only 6 concern asylum seekers. In January 2020 the NGOs called on the European Commission to amend the system of distribution of funding so that the funding can actually reach NGOs providing assistance to asylum seekers and migrants.[39] Moreover these projects started in September 2019 so their impact on 2019 is inconsiderable.

In January 2020 UNHCR signed an agreement with the Bar Association of Attorney-at-Law in Warsaw based on which the Bar Association will provide legal aid to persons seeking international protection.[40]

Generally NGOs providing legal assistance in Poland differ between one another: there are some specialised organisations with extensive experience in the field, also engaged in strategic litigation and advocacy. For some others, providing legal assistance to asylum seekers is another component of their general assistance activities. In most cases, NGOs assist asylum seekers not only in the asylum process, but also in other legal proceedings and in solving every-day problems. Assistance related to the asylum procedure includes providing information and preparing relevant documents (appeals, applications, complaints) covering every stage of the procedure.

Legal representation is provided only in some cases, as the organisations providing legal assistance generally lack resources. For instance, legal presence during the personal interview cannot be ensured and the assistance can cover only the administrative procedure (first and second instance) and submitting an onward appeal to the Voivodeship Administrative Court in Warsaw. Representation before this court and proceedings before the Supreme Administrative Court can be provided only by professional legal representatives (lawyers, legal counsellors). There is a general possibility to apply for a cost-free professional legal representation before these courts on the same rules that apply to polish citizens (i.e. insufficient financial resources). There is a form, in Polish, available in the court or on the court’s website (not in the offices of administrative authorities examining the claim). In 2019, there were 103 applications for cost-free professional legal representation submitted by applicants for international protection or beneficiaries of international protection (in cases concerning deprivation of protection) to the court. In 59 cases the assistance was granted and in 21 it was denied.[41] So although in practice legal representation is granted by the court, it is very doubtful that asylum seekers would be able to benefit from it without the assistance from NGOs. In the absence of legal representation, applicants will receive the correspondence themselves. Since the appearance at the hearing is mostly not obligatory, the applicant may be served with the ruling after it is made.

Asylum seekers are informed about legal assistance provided by NGOs by the posters and leaflets in the Office for Foreigners, reception centres and detention centres as well as by the officers.

 


[1] Article 34(1) Law on Protection.

[2] Information provided by the Office for Foreigners, 15 January 2019. No data for 2019 was made available.

[3] Article 34 Law on Protection.

[4] Letter from the Office for Foreigners to HFHR no BSZ.074.2.2020/RW received on 22 January 2020.

[5] Letter from the Office for Foreigners to HFHR no BSZ.074.2.2020/RW received on 22 January 2020.

[6] Articles 36-38 Code of Administrative Proceedings.

[7] Article 35 Law on Protection.

[8] Letter from the Office for Foreigners to HFHR no BSZ.074.2.2020/RW received on 22 January 2020.

[9]Letter from the Office for Foreigners to HFHR no BSZ.074.2.2020/RW received on 22 January 2020.

[10] Article 44(1) and (2) Law on Protection.

[11]Information provided by the Office for Foreigners, 15 January 2019.

[12] Article 44(4)2 of the Law on Protection.

[13]Information provided by the Office for Foreigners, 15 January 2019.

[14 M. Sadowska, K. Słubik Osoby LGBT [in] Stowarzyszenie Interwencji Prawnej (SIP), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r. (2019), available (in Polish) at: http://bit.ly/2S507LV,`14.

[15] Article 44(5) of the Law on Protection.

[16 M.Jaźwińska, Postepowanie w przedmiocie udzielenia ochrony międzynarodowej, [in] Stowarzyszenie Interwencji Prawnej (SIP), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r. (2019), available (in Polish) at: http://bit.ly/2S507LV, 19.

[17] Information provided by the Refugee Board, 27 August 2015.

[18] Article 35(3) Code of Administrative Proceedings.

[19 Article 130(1) and (2) Code of Administrative Proceedings.

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

[21]Information provided by the Office for Foreigners, 22 January 2020.

[22] Article 48a Law on Foreigners.

[23] Regulated in the Law of 30 August 2002 on the proceedings before administrative courts, Journal of Laws 2012 pos. 270 (ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami administracyjnymi, Dz.U. 2012, poz. 270).

[24] Ibid.

[25] See e.g. Supreme Administrative Court, II OZ 872/18, 14 September 2018, available at: http://bit.ly/2Haucpl.

[26] Supreme Administrative Court, II 1239/18, 20 December 2018, available at: http://bit.ly/2T6Zq8d.

[27 Information provided by the Voivodeship Administrative Court, 11 January 2019.

[28]Information provided by the Voivodeship Administrative Court, 15 January 2020.

[29] Supreme Administrative Court judgement from 6 February 2019 II OZ 46/19 and from 16 May 2019, II OSK 1257/19. See comments (in Polish) made by Legal Intervention Association at: http://bit.ly/2Ofs0ja.

[30] Information provided by the Refugee Board, 16 January 2020. This data may be not fully coherent because of delays in transferring information on judgements.

[31] Article 69c-69m Law on Protection.

[32] The list of legal counsellors, advocates and NGOs is available at: https://bit.ly/2TYEAUW.

[33]Information provided by the Office for Foreigners, 22 January 2020. .

[34] See more at Wyborcza, ‘MSWiA ma miliony na integrację cudzoziemców, ale w 2016 r. nie wydało na to ani złotówki’, 9 January 2017, available (in Polish) at: http://bit.ly/2lguY9N.

[35] Witold Klaus, Ewa Ostaszewska-Zuk and Marta Szczepanik, The role of European funds in supporting the integration of migrants in Poland, November 2017, available at: http://bit.ly/2EVdzxq.

[36] Foundation Ocalenie cited “Assitance to refugees blocked: NGOs without access to European Funds”, 14 August 2018, available at: https://bit.ly/2T5Y6S3.

[37]Refugee.pl cited in „Refugee.pl has helped foreigners for years. The Government blocks funding, will you help?” 14 December 2018, available at: https://bit.ly/2ScoFkb.

[38] Legal Intervention Association cited in “Assistance to refugees blocked: NGOs without access to European Funds”, 14 August 2018, available at: https://bit.ly/2T5Y6S3.

[39]Letter of 11 Polish NGOs to the European Commission from 21 January 2020, available at: https://bit.ly/2RI51ii

[40]Warsaw Bar Association, “Stołeczni radcowie prawni we współpracy z UNHCR w Polsce,” 28 January 2020, available (in Polish) at: https://bit.ly/2OrkJN9.

[41]Information provided by the Voivodship Administrative Court on 20 January 2020.

 

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