Regular procedure

Poland

Country Report: Regular procedure Last updated: 16/04/21

Author

Independent

General (scope, time limits)

 

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.  The Head of the Office for Foreigners is also a 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 detailed figures for the years 2019 and 2020, but reported that 2,094 decisions were issued within the 6 months-time limit in 2020. 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 2020 the average processing time for a decision on the merits was 207 days (in comparison to 152 days in 2019). The longest processing time took 2,345 days and the shortest 1 day.[5] The COVID-19 pandemic had an impact on the processing time of applications. As the Office for Foreigners informs, from 16 March to 25 May 2020 direct service was suspended and face to face interviews were not carried out. From 31 March to 23 May 2020 all the time limits in the administrative proceedings were also suspended.

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. The certificate is also valid for appeal proceedings and onward appeal court proceedings if the suspensive effect is granted.

As of 31 December 2020, there were 3,557 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. In 2020 mainly the cases of the Belarussian nationals were prioritised.[9]

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]

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); i.e. they are responsible for securing interpretation and appointing interpreters. 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] In 2020 there was a temporary problem with Tamil language and 1 person was heard in English with his consent. The Office for Foreigners also reports that in 2020 there was a problem with approaching a female interpreter for some of rare languages and with the limited number of interpreters, which in 2020 meant that if someone was in quarantine, the interview had to be postponed.[15]

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, [16] but this is not implemented in practice because there are no technical means for it (no cases in 2020).

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.[17]

In 2019 videoconferencing was used for interviews in the detention centres. NGOs found this practice problematic in terms of interpretation and with regard to vulnerable applicants, when presence of psychologist is required. In 2020 videoconferencing was applied on a larger scale because of the pandemic, but the applicants still had to come to the Office for Foreigners. Interviewee and interviewer were sitting in separates room and upon the termination of the interview, the interviewee still had to sign the protocol of the interview. According to the Office for Foreigners, protocols are mainly prepared on the computer, not handwritten.[18]

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.[19] 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.[20] The appeal has suspensive effect.[21] Neither hearings nor decisions of the Refugee Board are made public.

In 2020, the average processing time for the Refugee Board to issue a decision in appeal proceedings was 108 days for the cases which started and finished in 2020. The longest processing time in 2020 took 1,355 days (in 2019 it was 327 days) and the shortest – 1 day. In 5 cases (down from 21 in 2019) the Refugee Board decided to hear the applicant (but the Refugee Board stresses that applicants were also asked for written statements), and there were no cases of hearing a witness in 2020 (just like in 2019).[22]

In 2020, according to the Refugee Board, there were no prolonged pauses in the decision making process, although the offices were closed during lockdowns and hearings were impossible in practice.[23] According to NGOs there were cases where access to files was impossible because the office was closed.

The Refugee Board may annul the first instance decision, overturn it, or confirm it. In 2020, appeals were submitted in case of 1,943 applicants. In case of 1,737 applicants the negative decision was upheld, meaning that the chances of success of appeals are very low in practice. In 2020, refugee status was not granted at all by the appeal body and subsidiary protection was granted in case of 9 persons.[24]

When the negative decision or a decision on discontinuing the procedure for international protection is served, the person concerned has 30 days to leave Poland (unless they are in detention).[25] During these 30 days their stay in Poland is considered legal.[26] Nevertheless the Refugee Board also informs the Border Guard that the final negative decision on international protection has been served and the Border Guards is obliged to establish if there are legal grounds to launch return proceedings.[27]

In 2020, on the basis of the COVID Law, the time limit to leave Poland has been prolonged until 30 days after the epidemic state (or the state of epidemic threat) is finished.[28]

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.[29] 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 (so together with the complaint a motion to grant suspensive effect has to be submitted).[30] Also, the authority issuing the decision (in this case the Refugee Board) can grant suspensive effect on their own decision ex officio or upon request.[31]

The court procedure is adversarial; both the Refugee Board and the asylum seeker are parties before the court. However, the court cannot decide on the merits (i.e. grant protection), but only annul the administrative decision or uphold it. 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.

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 (in case of detainees – while in case of applicants who are not detained, they have 30 days to leave the territory). 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.[32] However, in a ruling of 20 December 2018, 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.[33] 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.[34]

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).[35] 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.[36]

However, in 2020 the issue has become problematic again. In 2020 the Voivodship Administrative Court granted suspensive effect in 80 cases and in 91 cases refused to grant suspensive effect to any complaint regarding international protection (that means that these statistics cover also cases of deprivation of international protection) as a response to 210 motions for granting suspensive effect.[37] However, on 28 April 2020 the Refugee Board made a resolution recommending its members to grant suspensive effect to the decisions on international protection, if there was a complaint to the court submitted against this decision in the time of COVID-19 pandemic (or pandemic threat) and some NGOs confirm that there were such cases in practice.[38] Moreover, on the basis of the COVID Law, the time limit to leave Poland has been extended by an additional 30 days after the epidemic state (or the state of epidemic threat) is finished.[39] Therefore access to appeal before a court may not have been an issue in 2020, but still there is a procedural gap in this regard.

Overall, the administrative court proceedings in Poland raises questions of compliance with the EU law, in particular in light of the judgment of the CJEU of 29 July 2019, C-556/17, Alekszij Torubarov v. Bevándorlási és Menekültügyi Hivatal, which foresees that the administrative court should be given powers enabling enforcement of final court judgments. These powers must include the possibility of issuing a judgment on the merits if a final judgment is not complied with in subsequent administrative proceedings. Yet, in Poland the law does not provide such a possibility – i.e. the administrative courts do not decide on the merits and can not grant international protection.[40]

According to the statistics of the Refugee Board, in 2020 there were 336 (up from 293 in 2019) complaints submitted to the Voivodeship Administrative Court against the decisions of the Refugee Board. The Voivodship Administrative Court in Warsaw annulled the decision of the administrative authorities (either of the Refugee Board or both decision of the first and second instance) in 31 cases, and in 212 cases it dismissed the complaint. In 34 cases cassation complaints to the Supreme Administrative Court were lodged. The Supreme Administrative Court annulled the judgment of the Voivodship Administrative Court as well as the decision of the Refugee Board in 1 case. In 24 cases the cassation complaint was dismissed.[41]

 

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 in the second instance provided by advocates, legal counsellors and NGOs. It involves preparing appeal and providing legal representation in second instance in cases concerning:

1) refusal of refugee status or subsidiary protection

 2) discontinuance of the procedure

3)refusal of reopening the procedure,

4) Dublin procedure,

5)inadmissibility of the application

6)revocation of protection status.[42]

In any type of decision mentioned above, issued by the first instance authority, the instruction on the right to free legal aid is included and is translated into the language understood by the applicant.[43]

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.[44]

In 2020, 311 applicants appealing the decision of the Head of the Office for Foreigners benefited from the free legal aid system. Taking into account the overall number of appeals (1,943) in 2020,[45] the capacity for providing legal aid within the system funded by the State is definitely not sufficient.

The Association for Legal Intervention (SIP) as one of the few NGOs providing legal aid within the system is also of the opinion that providing assistance only in the second instance is not enough. Main evidence is gathered in the first instance proceedings – that is when the applicants are interviewed, country of origin information is collected and witnesses can be heard. And this is the phase of the proceedings, where cost- free legal assistance is not provided (i.e. private lawyer can be arranged, but it means the applicant bears the costs). SIP gives examples of cases, where some evidence from the country of origin were presented in the appeal were not taken into account by the second instance authority, because the applicants should have presented them in the first instance. The argument, that the applicant had not been advised by the lawyer on what evidence can be relevant for the procedure was not considered.[46]

There is also a separate free legal aid system for the administrative court proceedings (onward appeal). Representation before administrative courts 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 2020 the Voivodship Administrative Court in Warsaw (examining all the complaints against decisions regarding international protection) granted free legal assistance in 87 cases and refused to grant it in 30 cases.[47]

For the legal assistance provided in detention see Judicial review of the detention order.

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.[48] Many NGOs, with qualified lawyers, continued to provide free legal assistance in the proceedings (including first instance), but this assistance is not provided on a large scale nor is it stable, since it often depends on short-term funding within projects. Due to the lack of funding NGOs generally lack resources and cannot provide assistance to applicants on a wider scale covering e.g. the presence of a lawyer during any interview.

 

 

[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.074.3.2021/RW received on 26 January 2021.

[5] Letter from the Office for Foreigners to HFHR no BSZ.074.3.2021/RW received on 26 January 2021.

[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.074.3.2021/RW received on 26 January 2021.

[9]  Letter from the Office for Foreigners to HFHR no BSZ.074.3.2021/RW received on 26 January 2021.

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

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

[17] 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.

[18] Letter from the Office for Foreigners to HFHR no BSZ.074.3.2021/RW received on 26 January 2021.

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

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

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

[22]  Information provided by the Refugee Board, 24 February 2021.

[23]  Ibidem.

[24] Information provided by the Office for Foreigners, 26 January 2021. However, according to the Refugee Board the number of persons granted subsidiary protection in 2021 was 12.

[25]  Article 299(6)1b Law on Foreigners.

[26]  Article 299(7) Law on Foreigners.

[27] Article 299(10) and (11) Law on Foreigners

[28] Article 15zzza COVID Law.

[29] 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).

[30] Article 61(3) of the Law on proceedings before administrative courts.

[31] Article 61(2)1 of the Law on the proceedings before administrative courts.

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

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

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

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

[36]  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.

[37]  Information provided by the Voivodship Administrative Court on 21 January 2021.

[38] Information from SIP, obtained on 12 April 2021.

[39] Article 15zzza COVID Law.

[40] P. Iżycki, O merytorycznym orzekaniu sądów administracyjnych w świetle standardu europejskiego – refleksje na gruncie wyroku Trybunału Sprawiedliwości z 29.07.2019 r., C-556/17, Alekszij Torubarov przeciwko Bevándorlási és Menekültügyi Hivatal [On Administrative Courts’ Adjudication on the Merits of Cases in the Light of the European Standard: Reflections Concerning the Judgment of the Court of Justice of 29 July 2019, C-556/17, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal], Europejski Przegląd Sądowy 4/2020, abstract available at: http://bit.ly/2ZmUqwQ

[41] Information provided by the Refugee Board, 24 February 2021. This data may be not fully coherent because of delays in transferring information on judgements.

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

[43]  Article 53(1) and 54e(1) Law on Protection.

[44]  The list of legal counsellors, advocates and NGOs is available on the OFF website at: https://bit.ly/2TYEAUW.

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

[46] SIP, Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2019 r., [Report SIP in action. The Rights of the foreigners in 2019.], available (in Polish) at: https://bit.ly/2NhMJ8K.

[47]  Information provided by the Voivodship Administrative Court on 21 January 2021.

[48] See the details of problems with funding of the Polish NGOs in the letter of 11 Polish NGOs to the European Commission from 21 January 2020, available at: https://bit.ly/2RI51ii.

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