Detention of vulnerable applicants

If a decision to release a foreigner from the detention centre is issued and the asylum seeker is a disabled, elderly, pregnant or single parent, the SG is obliged to organise the transport to the reception centre, and – in justified cases – provide food during the transport.[1] If the asylum seekers do not belong to these categories, any assistance to reach open centres is provided, regardless of the factual situation they are in.[2] In 2023, at least 18 (6 from Lesznowola, 6 in Kętrzyn, 6 from Krosno) migrants benefited from this form of transport.[3]

Detention of persons with health conditions

According to the law, asylum seekers whose psychophysical state leads to believe that they are victims of violence or have a disability as well as unaccompanied minors cannot be placed in detention centres. This is also applicable to asylum seekers whose detention causes a serious threat to their life or health,[4] as under the law, an asylum seeker should be released if further detention constitutes a threat to their life or health.[5] This means that, for example, children, if they stay in Poland with parents or other legal guardians, can still be detained, as can pregnant women if they are healthy. In practice, persons with disabilities are sometimes detained.[6]

The provisions are absolute and do not allow for any exceptions and have to be considered separately and independently of each other, but this is not a practice followed by the Border Guards and courts, according to National Prevention Mechanism.[7]

In the opinion of NGOs and the Commissioner for Human Rights, the problem with the identification of victims of torture and violence persists and there is a systematic problem with placing foreigners whose mental and physical condition indicates a possible danger to their life or health.[8] Indeed, a poor mental condition is hardly ever accepted by courts as sufficient ground for not placing in or releasing an asylum seeker from detention.[9] Identification should be conducted before placing in detention and not in detention.

According to the Commissioner for Human Rights and NGOs, the authorities do not always release migrants who suffered the violence in their country of origin[10] or, more recently, at the Polish-Belarusian border.[11] In 2022 and 2023, an increasing number of individuals are being detained after hospitalization for serious fractures sustained from falling off the wall.

Additionally, the Border Guard continues to apply internal guidelines allowing deprivation of liberty of foreigners who have experienced violence (“Principles of Border Guard’s Procedure with Aliens Requiring Special Treatment.”). In 2019, the Border Guard updated internal guidelines called “Rules of Conduct of the Border Guard towards foreigners requiring special treatment”. Based on these rules, only people who exhibit clear symptoms indicating that they have been subjected to severe forms of violence, and as a result, whose current psychophysical condition is significantly below average, are exempt from being placed in detention. It means that the internal guideline introduces additional restrictions unknown to the Act of Foreigners and limits the prohibition of detention of violent victims to victims of serious forms of violence, who manifest the symptoms of violence and whose psychophysical state is significantly below the norm. Moreover, the updated guideline still does not solve the long-standing problem of the lack of an effective system for the identification of victims of violence.

This guideline limits the need to examine detained third-country nationals only if they:

• Were in need of first aid assistance during the arrest;
• May be in a condition that threatens their life or health;
• Have declared that they require permanent or periodic treatment, the interruption of which would endanger their health or life;
• Are suspected of being carriers of an infectious disease.

In practice, it means that the decision to conduct a medical examination is made by the Border Guard officer. However, there are serious doubts about the ability of the Border Guards officers to recognise if a migrant is a violence victim as not all of them are specialised in the identification of vulnerable asylum seekers. What is more, this guideline does not indicate the necessity of a possession of medical knowledge by the officer and there is a lack of a determination of the methods and criteria based on which the officer could assess whether a medical examination is necessary.[12] Additionally, the people who are placed in detention and stated that they had experienced violence during their detention, are not automatically and immediately subjected to a medical examination.[13] Moreover, the guidelines do not introduce a procedure to release immediately the victim of violence from a detention centre, as this could be disposed only if it is established that prolongation of detention would cause a threat to the person’s life or health. The NPM recommends not using the guidelines prepared by the Border Guards as they are against the national law and international standards, including the Istanbul Protocol. In the opinion of the NPM there should be two different documents introduced: the first one would consider the early identification of the victims of violence and the other one – the migrants’ health assessment concerning the potential risk for detained persons.[14]

In addition, there are detained foreigners who, despite the evident symptoms of PTSD, have not been identified, or the identification process takes a very long time, and their mental state deteriorates due to their detention.[15]

According to the Commissioner for Human Rights,[16] before the application to the court to place or prolong the stay of a foreigner, is submitted by the Border Guard, the physicians only issue an opinion on whether the foreigner’s physical health at the time of the examination allows for a stay in the detention centre. This means that the assessment does not include:

• danger to life and health through the risk of deterioration of the current state of health e.g., emerging or worsening of mental disorders due to re-traumatisation and stress caused by detention;
• the state of mental health, as-no psychological or psychiatric examination is carried out;
• the mental state and the physical state in terms of the presumption of being subjected to violence (as there is no psychological or psychiatric examination or medical evaluation of the injuries and their possible causes).

According to the representatives of the National Prevention Mechanism, identification of torture victims is still based on the Border Guards’ internal guidelines which are contrary to the provisions of the law.[17] And in practice, foreigners who should never be placed in detention centres, stay there longer. In one of its recommendations, National Prevention Mechanism called for the Border Guards to abandon guidelines and create a tool that could effectively identify foreigners with experience of torture or other forms of violence.[18]

Representatives of the Commissioner for Human Rights met foreign nationals who informed them at the stage of arrest that they had been subjected to violence or who came from a country with a high likelihood of torture and violence and yet were not examined in this regard. At the same time, when applying to the court to order detention, the Border Guard stated that there were no contraindications to their stay in the detention centre. In some cases, individuals that are in good physical condition at the moment of placing in detention may risk a deterioration of their health condition in detention, in some cases connected to somatic conditions connected to their past traumatic experiences.[19]

The Commissioner for Human Rights, in his letter addressed to the Presidents of Regional Courts, expressed his concerns about the cases of foreigners placed in detention who were victims of violence and were in bad psychophysical condition. Furthermore, it was underlined that the level of medical and psychological care was far from sufficient and the contact with psychologists in detention centres was unavailable, which might lead to the deterioration of foreigners’ health through secondary victimization.[20] For example, in the detention centre in Krosno, only one psychologist was hired for 8 hours, once a week who was responsible for 79 people in Krosno Odrzańskie[21] or Czerwony Bór there was only one internal psychologist who was a Border Guard Officer.[22] In Białystok and in Biała Podlaska[23] there are two psychologist – one internal and one external (3 days in a week).[24] Despite these deficiencies, the Border Guards in Kętrzyn, Biała Podlaska and Lesznowola did not agree to grant access to detention centres to NGOs specialising in providing psychological assistance for migrants and asylum seekers.[25] In the opinion of NPM, an additional psychologist should be employed in Biala Podlaska to address existing needs.[26]

The Commissioner pointed out that the number of hired psychologists and physicians in detention centres is insufficient[27] and the psychologists do not know the languages of the migrants, which made it difficult or even impossible to establish proper contact with a foreigner. Additionally, it was stated that the serious deficiencies both in psychological and medical care provided to foreigners in detention were identified before the crisis on the Polish-Belarusian border and the overcrowding in detention centres had dramatically worsened the access to psychologists and medical care.[28] The Ombudsman expressed concerns regarding the fact that access to psychological assistance provided by the NGOs is significantly limited.[29]

An analysis of the justifications of the courts’ rulings concerning detention leads to the conclusion that in a large number of cases mental health is not considered by judges or there is no reference to the health of the foreigners at all.[30] Additionally, courts do not accept psychological opinions submitted by independent psychologists (e.g. from NGOs),[31] only in exceptional cases the Regional courts take them into account[32] and they rely on short opinions (very often it is one sentence stating there are no obstacles to prolonging the stay in a guarded centre) of the physician who works in the detention centre.[33] There are doubts as to whether the physician conducts medical checks on individuals before issuing health certificates. Physicians typically have general specializations, which means they may lack the expertise to assess the mental state of a detained person.

If medical or psychological opinions, which are in a foreigner’s files, indicate that a foreigner has experienced violence, the documentation is not always handed over to the court. This results in the illegal placement of people who have experienced violence in detention centres and arrests for foreigners, and consequently leads to their secondary traumatization.[34]

In practice, only courts of higher instance call on experts to determine applicants’ mental health state but this happens very rarely (once in 2021).[35] Practice shows that neither the Border Guard nor the courts take the initiative to assess if an asylum seeker is a victim of violence. In 2021, the court appointed the psychologist as an external consultant only in 1 case.[36] In 2020, no expert was appointed in any district or regional court in a total of 777 cases.[37] No information was available for 2023. Additionally, courts do not conduct their own evidentiary proceedings.[38]

In 2018 and in 2022 [39] the Commissioner for Human Rights reminded that the internal guidelines, based on which the identification is performed, do not clearly state that vulnerable persons, once identified, should be immediately released from detention. The Commissioner observes that the lack of accessible treatment and therapy in the detention centres deepens the trauma.[40] Torture survivors stay in detention centres and even if they are identified at a later stage, they are not released from detention.[41]

In its 2019 concluding observations, the UN Committee against Torture stated that in Poland there is insufficient capacity to identify asylum seekers who are victims of torture and lack of adequate protection and care for survivors of sexual and gender-based violence. In the opinion of CAT,[42] Poland should introduce a principle to law that detention of asylum-seekers, and in particular children and vulnerable persons, should be a measure of last resort, for as short a period as possible and in facilities appropriate for their status. Furthermore, CAT recommended that Polish authorities refrain from placing asylum seekers and in particular children in guarded centres and ensure the fast and appropriate identification of vulnerable persons including survivors of torture and ill-treatment, as well as sexual and gender-based violence, and provide them with adequate access to health care and psychological services.[43]

Moreover, the Committee was concerned that training on the provisions of the Convention and the Istanbul Protocol is not part of the training of border guards, judges, forensic doctors and medical personnel engaged in the treatment of foreigners in detention. Therefore, in the opinion of CAT, Poland should remedy it.

The CPT reported on various shortcomings in detention centres. In particular, that few  regular visits were conducted by psychiatrists, the lack of clinical psychologists, delays in accessing specialised medical care, including dental and gynaecological care; lack of screening for possible traumatic mental disorders and signs of victimisation; the need to introduce a register of injuries found during admission and stay in a Border Guard facility; the need for specialised training for medical staff in documenting and interpreting injuries, including techniques for interviewing people who may have been mistreated; cases of breaches of medical confidentiality in situations where other foreign nationals were asked to participate in examinations for translation purposes.[44]

On 18 January 2020, the European Court of Human Rights communicated the case of A.A. against Poland.[45] The case concerned an asylum seeker from Burundi, who came to Poland in January 2019 with a fake Swiss ID. The applicant was detained and placed in a detention centre in Kętrzyn despite the fact that she was a victim of rape, suffered from that traumatic experience and had permanent scars. During her stay in the guarded centre, she was examined by two psychologists. The first expert, the employee of the detention centre, issued an opinion according to which she did not suffer from PTSD, but she needed psychological treatment. The second psychologist found out that she was a victim of violence and that her emotional state had worsened. In addition, expert-recommended psychiatric consultation and treatment. However, the courts prolonged her detention and stated that she represented a risk of absconding and was not diagnosed with PTSD syndrome and that the guarded centre provide her with adequate living conditions and medical care. Additionally, she was not allowed to participate in court hearings concerning her appeals against the placement and prolongation of her detention. Moreover, her appeal against the extension of detention was examined only after 50 days. On 29 September 2020, the Court decided to strike the application out of the list of cases due to the unilateral declaration that the applicant was deprived of her liberty in breach of Article 5 § 1 (f) of the Convention and that she did not have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article 5 § 4 of the Convention. Poland undertook to pay the applicant the amount of EUR 9,000.

Detention of children

According to the law, unaccompanied asylum-seeking children should not be detained.[46] In practice, some unaccompanied children are placed the detention centres if they are accompanied by unrelated adults[47] or when there are doubts as to their age or if they were placed in detention as irregular migrants (which is possible under the law)[48] and only then applied for international protection. Asylum-seeking and migrant children who are with members of their families can be placed in detention centres together with accompanying adults.[49]

Detaining children is a regular practice.[50] Families with children were placed in detention centres in Lesznowola (since September 2023), Biała Podlaska (until 8 September 2023) and Kętrzyn. In 2023 unaccompanied children were placed in a detention centre in Kętrzyn, Biała Podlaska and finally in Lesznowola. In total (Detention centre in Biała Podlaska reported 6) 29 unaccompanied and 115 children were reported in detention centres.[51]

According to NGOs, in some cases minors are placed in detention centres as a result of medical examinations of their age.[52]

The National Prevention Mechanism assessed critically the age assessment procedure set up in Polish law, which is solely conducted in a medical way and in most of the cases only an X-ray of a wrist was performed. In its opinion, this procedure should be comprehensive, also taking into account psychological, developmental or environmental factors. NPM recommends that all evidence, such as photos of identity documents, have to be taken into account in each case of the final age assessment and any doubts have to be resolved in favour a minor. Additionally, the age assessment certificate should include a description of the examination along with the error limit.[53]

According to NGOs, the conditions in detention centres are not adequate for children: in some detention centres there was no children friendly space as playgrounds or social rooms in 2022.[54] The CPT underlined that there were no daily activities for pre-school children and no purposeful structured activities for adults, except for some weekly Polish language courses organised shortly before the CPT visit in 2022.[55]

Source: Letter of the Border Guard Office in Biała Podlaska, 8 March 2023, in Kętrzyn 8 February 2024, Krosno Odrzańskie 3 March 2023, in Przemyśl 10 March 2023, Border Guard Headquarters 18 March 2024.

In 2021, the number of detained children has increased to 567 in total. In the period between January and 31 July 2022, 575 children were placed in detention centres in Poland, out of a total of 2,771 detainees.[56] In 2023, according to the Border Guard Headquaters, 115 children and 29 unaccompanied children were in detention centres.[57]

The policy of protection of children in detention was put in place from 2018, when new guidelines were introduced – “Intervention procedures in case of hurting children in guarded centres for aliens”. Within the framework of that policy, the employees of guarded centres were trained in the new rules and identification of behaviour which should be considered abuse.[58] In 2021, there were 2 cases of abuse against children, including one in Kętrzyn and one in Biała Podlaska.[59] In 2023, no similar cases were reported.

In August 2019, the UN Committee against Torture (CAT) expressed its concern regarding the detention of families with children and unaccompanied minors over 15 years old, which are still valid as no measures to limit the use of detention for these applications were adopted up to the present.[60]

In January 2022, the Commissioner for Human Rights in his letter to the Presidents of the Regional Courts (Prezesów Sądów Okręgowych) expressed, among others, his concerns regarding the detention of families with children. He underlined that none of the detention centres was an appropriate place for children. According to him, detention may have a negative and irreversible impact on development and psychophysical condition of a child, especially with a traumatic migration experience, as these facilities are not suitable places for children. According to the Commissioner Border Guard rarely release children whose mental health deteriorated sharply after being placed in a detention centre and justified the hospitalization.

In the opinion of the Commissioner for Human Rights, the Commissioner for Children’s Rights,[61] HFHR[62] and other NGOs in Poland, child detention should be forbidden by law in all cases because detention, regardless of children’s migration status and their parents’ decisions, can never be in the best interest of a child, violates the children’ rights and may have a negative effect on children and their further development.[63] The CPT recommended Poland should avoid detaining families with children in guarded centres for foreigners and to ensure that if children are exceptionally placed in a guarded centre, it should be for the shortest possible period.[64]

As of 2023, in general detention decisions still did not consider the best interest of the child and the individual situation of the child.[65]

When placing a child in a guarded centre together with parents, the courts do not mention children and their personal situation in a justification of the detention decision.[66] In addition, the courts place families in guarded centres for a maximum period of time, rather than for the shortest period.[67] Children’s detention is ordered automatically, without an individual assessment of their situation and needs. Detention is not considered as a measure of a last resort, and no assessment is conducted as to whether alternatives to detention could be applied.[68] Furthermore, justifications for the courts’ decisions were adapted from the BG application for placing or prolonging the detention. Moreover, courts and the Border Guard treat detention as a form of punishment for crossing the border illegally.[69]

National caselaw

The Supreme Court, recognising cassation in the case of compensation for detention, has delivered one of the most important judgments in detention cases in recent years. The case concerned a single mother who was detained for 16.5 months with her young child. The Supreme Court clarifies that should be obvious but are often ignored by Polish courts: any rationale for detention must be proven and courts cannot rely solely ‘on presumptions’, for detention to be lawful it must be necessary in the particular case, detention of refugees does not have a repressive function, nor is the purpose of  its use to protect the borders of the Republic of Poland or the external borders of the European Union, let alone to combat the phenomenon of illegal immigration,  the welfare of the child often overlooked in refugee and detention procedures, and should be the overriding value.[70]

On 1 March 2023, the Court of Appeals of Warsaw upheld the judgment of the District Court of Warsaw, awarding a compensation in the amount of 72,500 PLN to a family detained in guarded centre for 2.5 months. The court underlined that, according to ECtHR’s jurisprudence, a family should be placed in detention only after having conducted an assessment regarding the possibility of applying less severe measure. The Court rule that the initial decision of issuing the detention order ignored the best interest of a child principle, and evaluated that it had caused a deterioration in the family’s mental state, as well as   to attend school. Additionally, the it was noted that the detainees were stripped naked while being admitted to the detention centre, had limited access to the computer room, their phones were taken from them and they could not move freely in the detention centre.[71]

On 3 March 2022, the European Court of Human Rights issued a judgment in the case of Nikoghosyan and others v. Poland. The case concerned a family of six from Armenia and their automatic detention for six-months without an individualised assessment of their particular situation and needs. The applicants complained also that the authorities had automatically relied on the information provided by the border guards. In its judgment, the Court reiterated its finding that the domestic courts which extended the applicants’ detention, did not give sufficiently thorough and individualized consideration to the applicants’ situation. The decision concerning the second applicant, issued on 5 January 2017 by the Biała Podlaska District Court contained a number of errors, such as the fact that the second applicant was referred to using a masculine form or as “the son of … In the opinion of the Court, the decision can be seen as not based on a throughout assessment of the applicants’ individual situation. Additionally, the Court highlighted that the domestic courts ignored the fact that the first applicant was accompanied by his three minor children and did not give any consideration when placing them in detention. Furthermore, the domestic courts did not refer to the fact that, while in detention, the second applicant had given birth to her fourth child. The Court reiterated that the child’s best interests cannot be confined to keeping the family together and that the authorities must take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. Finally, the Court concluded that in this case, the detention of both the adult and the child applicants, for a period of almost six months, was not a measure of last resort for which no alternative was available, and the national authorities had to act with greater speed and diligence. In this case, the Court ruled there was a violation of Article 5 § 1(f) of the Convention.[72]

International caselaw

On 8 January 2018, the European Court of Human Rights communicated the case of M.Z. and Others against Poland.[73] The application was lodged on 25 April 2017 and concerned a family with two children from Tajikistan, placed in the detention centre in Przemyśl for more than 8 months. During their detention, the mental state of the applicant was worsening, and she suffered from depression and showed symptoms of adjustment disorder. She tried to commit suicide and she was in a psychiatric hospital a few times. The applicants complained that their detention resulted in inhuman and degrading treatment; was arbitrary and contrary to the domestic law. Moreover, the situation of children was not considered, and the length of detention had an impact on their family life. An application for compensation for the unlawful detention of the family was submitted and will be considered by the Regional Court in Warsaw. The motion was based, among others, on the fact that the family was deprived of liberty, even though the applicant’s psychophysical condition indicated that she was a victim of violence and that her health deteriorated because of detention. The application also emphasised that the impact on minor children was not investigated properly when deciding on detention.[74] On 22 July 2021, the case was struck out of the list due to the Government’s declaration concerning the complaints under Article 5 § 1 and 4 and Article 8 of the Convention, as regards the arrangements for ensuring compliance with the undertakings under these provisions. The Court also declared the remainder of the application inadmissible.

On 23 February 2021, the European Court of Human Rights communicated the case of Z.E. and Others against Poland.[75] The application was lodged on 17 January 2017 and concerned a single mother with four children from Chechnya, victims of domestic violence, placed in the detention centre in Kętrzyn for more than 10 months.[76] The applicants complained that their right to private and family life, freedom from torture, unlawful detention had been violated. The prolonged deprivation of liberty had in fact a negative impact on the psychological state of the children. Moreover, according to Polish law, the woman should not have been placed in a guarded centre at all due to her experience of domestic violence. Other measures could have been applied to the family to ensure the proper course of the proceedings involving them, which did not involve deprivation of liberty. However, this had not been adequately taken into account. The family also claimed that their procedural rights had been violated. They had not received a request to extend their detention and had not been provided with ex officio legal aid, and their case had been considered by the court with considerable delay. The case was struck out of the list on 1 July 2022, as a friendly settlement was reached.

On 10 January 2023, the ECtHR communicated the case V.M. and Others against Poland. The case concerns the ongoing detention in Biała Podlaska of an Armenian mother and her two children pending their asylum and deportation proceedings. The mother’s mental health deteriorated heavily after she had a miscarriage while in detention.[77]

On 9 February 2023, the ECtHR[78] issued a judgment in R.M. and Others against Poland.

The Court found that the 7-month detention of the family with children violated the European Convention on Human Rights, specifically the prohibition of unlawful detention and the right to family life. For the first time, the Court noted that failure to inform foreigners about the planned extension of their detention violated their right to a fair procedure. The ECtHR also admitted that the foreigners concerned by the case should know what information about their life, the legal and psychophysical situation is provided to the court – so that they have a chance to supplement it.[79]

In April 2023, the ECtHR communicated the case M.S.T. and Others against Poland. The applicants complained that their prolonged detention violated Article 3 of the Convention owing to the nature of detention as such, as well as to the prison-like conditions of the Guarded Centre in Kętrzyn, including room sizes of less than 4 m2 per person, lack of protection from the summer heat, restriction of outdoor activities, personal inspection upon admission to the centre violating the dignity of the applicants or failure to provide any privacy to conduct their private and family life. the lack of proper psychological and medical care for their mental and physical conditions. They also complain that detention was not a measure of last resort and that neither possibility to apply alternative measures nor the best interest of the child were not taken into account. The applicant also alleged  not to have had access to legal representation during the proceedings. They also underlined that court documents were translated into a language they did not understand, the failure to consider requests for evidence relevant to the case and, moreover, the failure to thoroughly examine the possibility of alternative measures to detention and the failure to take into account the best interests of the minor child when making judgments.[80]

O 16 May 2023, the European Court of Human Rights (ECtHR) communicated the case of Z.H.R. and Others v. Poland concerning detention of an Iraqi national and her two children in the Guarded Centre for Migrants in Lesznowola and later in Biała Podlaska. The family stayed in the centres for ten months in 2021-2022, despite the mother’s deteriorating mental state.[81]

On 10 July 2023, the ECtHR communicated the case M.H.D. and Others against Poland filed by the Iraqi nationals, a married couple with two minor children, who were detained in two detention centres: Lesznowola and, subsequently, in Kętrzyn for at least six months. They complain about the conditions of their detention in both detention centres, insufficient space in the room, limited time that they could spend outside. Additionally, the applicants who were victims of violence, complained that they were not provided with adequate psychological and medical care, they were twice subjected to personal checks and that they had to strip naked which was particularly humiliating and infringed their dignity. The applicants further complained that the centre was not adjusted to the needs of minor applicants – they indicate that a prolonged stay in the centre was unnecessary and harmful for the psychological development of the children who did not receive adequate medical treatment. Lastly, they complain, that the decisions ordering their detention lacked legal and factual grounds, the review of their appeals against their detention orders was limited in scope and the respective procedure lacked the necessary guaranties.[82]

In November 2019, a complaint to the UN Human Rights Committee was submitted to challenge another case of child detention. It addressed the detention of an asylum-seeking family (a single father with two children) in the detention centre in Biała Podlaska for 10 months, following their Dublin-transfer to Poland in November 2018. In this case, the courts did not properly assess the children’s situation and their best interests. The District Court, prolonging the detention of the family, considered only the opinion of the Border Guard stating that there were no contradictions for the further children’s stay in the detention centre. Likewise, Border Guard refused to release the family even though the mental condition of the children was deteriorating. On 10 February 2021, the case was communicated to the Polish government.[83] The case is still pending as of April 2024.

[1] Article 89cb Law on Protection. Border Guard Unit in Biała Podlaska, Przemyśl, Bialystok do not have statistics in this regard. BG Unit in Kętrzyn and Lesznowola, 2024.

[2] Commissioner for Human Rights asks about assistance for foreigners released from guarded centres. Border Guard respons, February 2023, available (PL) at https://bit.ly/3Bvjq8d.

[3] Letter from BG unit Krosno, 23 February 2024.

[4] Article 88a(3) Law on Protection.In Kętrzyn 2 person were released on the basis of this provision in 2023, Border Guard Unit in Kętrzyn.

[5] Article 406(1)(2) Law on Foreigners.

[6] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, p. 80, describes of a detention case of a person who was disable (lack of one limb).

[7] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek: Judgement Court of Appeals in Białystok (Sąd Apelacyjny w Białymstoku) Sygn. akt II AKa 136/23, 28 November 2023.

[8] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish here: https://bit.ly/3URYZek. Commissioner for Human Rights , BIURO RZECZNIKA PRAW OBYWATELSKICH Krajowy Mechanizm Prewencji KMP.572.6.2023.MD Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka i Aresztu dla Cudzoziemców w Przemyślu available in Polish: Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH Krajowy Mechanizm Prewencji KMP.572.6.2023.MD Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka i Aresztu dla Cudzoziemców w Przemyślu available in Polish at: https://bit.ly/3UMMId2.

[9] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek.

[10] Migration: Key fundamental rights concerns – January 2021- June 2021, FRA Bulletin 2, available in English at https://bit.ly/3OoWmgA, 23. Judgement Court of Appeals in Białystok (Sąd Apelacyjny w Białymstoku) Sygn. akt II AKa 136/23, 28 November 23.

[11] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish here: https://bit.ly/3URYZek. Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH Krajowy Mechanizm Prewencji KMP.572.7.2023.KK Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, available in Polish at: https://bit.ly/44tKu5y.

[12] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek.

[13] 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/3pmM6dS. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 81.

[14] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek.

[15] Foreigners in administrative detention. Results of the KMPT monitoring in guarded centres for foreigners in Poland. March 2021. p. 43 available in Polish at https://bit.ly/3L0F5YZ. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, p.81.

[16] Foreigners in administrative detention. Results of the KMPT monitoring in guarded centres for foreigners in Poland. March 2021. available in Polish at https://bit.ly/3L0F5YZ, 43.

[17] Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, available in Polish at: https://bit.ly/44tKu5y.

[18] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish here: https://bit.ly/3URYZek.

[19] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.

[20] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.

[21] BG in Krosno Odrzańskie, 23 February 2024.

[22] Preparation of state bodies in case of a mass influx of foreigners to Poland, Supreme Audit Office, NIK, Przygotowanie organów państwa na wypadek masowego napływu cudzoziemców do Polski, available in Polish: https://bit.ly/3mWDvQY,

[23] Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej available in Polish at: https://bit.ly/44tKu5y.

[24] Letter from the Border Guards Unit in Białystok, 12 February 2024.

[25] Information provided by Polish Migration Forum, February 2023.

[26] Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, available in Polish at: https://bit.ly/44tKu5y.

[27] Commissioner for Human Rights, visit in detention centre in Wędrzyn in January 2022, available at https://bit.ly/3M7oXpx

[28] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL; Commissioner for Human Rights, visit in detention centre in Wędrzyn in January 2022, available at: https://bit.ly/3M7oXpx.

[29] Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH, Psychological assistance in guarded centres for foreigners – also from NGOs, 25 April 2023, available in Polish at: https://bit.ly/3WpQ5I3.

[30] Information provided by Legal Intervention Association, January-February 2023.

[31] Information provided by Legal Intervention Association, HFHR, January 2023.

[32] Foreigner released by court from guarded centre after experiencing violence, 24 November 2023, Stowarzyszenie Intwerwencji Prawnej, available in Polish at: https://bit.ly/3Wr9xnQ and https://bit.ly/4bEQyKT.

[33] 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/3pmM6dS.

[34] 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/3pmM6dS. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024.

[35] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36kr8Qv

[36] Information provided by Regional Court in Olsztyn to SIP, 21 January 2022.

[37] 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/3pmM6dS.

[38] SIP, interview, January 2021: Information provided by HFHR, March 2024.

[39] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish here: https://bit.ly/3URYZek.

[40] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Bialej Podlaskiej, 7 January 2019, available (in Polish) at: http://bit.ly/2BU7ej5.

[41] Information provided by the HFHR, January 2023.

[42] CAT (2019) Concluding Observations: Poland CAT/C/POL/CO/7, available at: https://bit.ly/3nx6BXs.

[43] Commissioner for Human Rights, ‘Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/36jgfhN.

[44] Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 March to 1 April 2022, February 2024, available at: https://bit.ly/3wi1Fdy.

[45] ECtHR, “A.A. against Poland” Application, no. 47888/19, lodged on 29 August 2019, available at: https://bit.ly/2TPp6Fp.

[46] Article 88a(3) Law on Protection.

[47] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish here: https://bit.ly/3URYZek, 21.

[48] BG in Krosno Odrzańskie, 3 March 2023.

[49] Although it happens in practice that some members of the family are placed in the reception centre and some in the detention centre. See for instance, T. Sieniow, ‘Wnioski z monitoringu wraz z rekomendacjami’, 59.

[50] Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, pp. 207-208.

[51] Letter from Border Guards in Biala Podlaska, 13 February 2024.

[52] Information provided by HFHR, FIPP, February 2024. Stowarzyszenie Interwencji Prawnej, Unaccompanied Somali minor released from guarded centre available in Polish and English, 15 December 2023, available at: https://bit.ly/4bpaam3; HFHR, Somali girl released from immigration detention – a court finds that the authorities misjudged her age, 1 August 2023, available in English at: https://bit.ly/3UJPVKk.

[53] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek; Commissioner for Human Rights, BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, available in Polish at: https://bit.ly/44tKu5y.

[54] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek.

[55] Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 March to 1 April 2022, February 2024, available at: https://bit.ly/3wi1Fdy.

[56] Information from the Border Guards Headquarters, 7 September 2022.

[57] Information from the Border Guards Headquarters, 18 March 2024.

[58] Communication from Poland concerning the case Bistieva and others v. Poland (application No. 75157/14), 14 June 2019, available at: https://bit.ly/2RzjAVU.

[59] Information provided by different Border Guard Units in Białystok, Kętrzyn, Przemyśl, Lesznowola and FIPP, 2022.

[60] Commissioner for Human Rights, “Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/2GmKzNP. The CPT visited 3 detention centres in Poland in 2022 – in Wędrzyn, Biała Podlaska and Białystok, available (EN) at: https://bit.ly/42q5Des.

[61] Commissioner for Child’s Rights, “Wystąpienie do Prezesa Rady Ministrów, 3 December 2018, available in Polish at: https://bit.ly/2TCZ45d.

[62] HFHR, 21 June 2023, Migrant children should not be detained in guarded centres. HFHR intervenes in ECtHR proceedings in connection with the detention of children, available in English at: https://bit.ly/3wuMr4O.

[63] HFHR, “Rights of persons deprived of liberty-fundamental legal and practical issues. HFHR perspective”, July 2018, available at: https://bit.ly/2SktNaF.

[64] Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 March to 1 April 2022, published 22 February 2024, available in English at: https://rm.coe.int/1680ae9529.

[65] Information provided by HFHR and SIP, February 2024, available at: https://bit.ly/4dnGMOM, Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 208.

[66] HFHR, Poland submissions on ending immigration detention of children to the UN Special Rapporteur on the Human Rights of Migrants, May 2020, available at: https://bit.ly/3VzUmpC; SIP, Information on the observance of human rights under the UN procedure of the Universal Periodic Review, March 2022, available (EN) at: https://bit.ly/3nx9pDY. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, 109.

[67] HFHR, „Prawa osób pozbawionych wolności”, 2018, available (PL) at: https://bit.ly/3NDBTqo.

[68] Stowarzyszenie Interwencji Prawnej, 20 October 2023, Another intervention before the ECHR concerning the detention of migrants in Poland, available in English at: https://bit.ly/3UrBlFP and https://bit.ly/4dnGMOM.

[69] HFHR, “Research on the applicability of the best interests of the child principle as the primary consideration in detention decisions as well as the alternatives to detention, Marta Górczyńska, Daniel Witko, 2017. “Information on the observance of human rights under the UN procedure of the Universal Periodic Review,” SIP, March 2022, available (EN) at: https://bit.ly/3nx9pDY. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, p.121.

[70] JUDGMENT ON BEHALF OF THE REPUBLIC OF POLAND of the Supreme Court in a case filed by R. Z. and S. Z. regarding compensation for unjust placement in a guarded centre for foreigners, 20 June 2023, available in Polish at: https://bit.ly/3yby069.

[71] SIP, Compensation for unjustified detention of family of three, victims of violence, 25 April 2023, available at:

[72] ECtHR, CASE OF NIKOGHOSYAN AND OTHERS v. POLAND, Application no. 14743/17, available at: https://bit.ly/36062N3.

[73] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAVOAj.

[74] HFHR, Warsaw court to rule on moral damages for family’s wrongful immigration detention, 6 February 2019, available at: https://bit.ly/3aEq50Y.

[75] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAVOAj.

[76]  Z.E. and Others against Poland, Application no. 4457/18 available in English at https://bit.ly/39bqig4.

[77] ECtHR, Application no. 40002/22 V.M. and Others against Poland, lodged on 10 August 2022 communicated on 10 January 2023, available (EN) at: https://bit.ly/42a6lg3.

[78] ECtHR, M.R and others against Poland, Application No 11247/18, lodged on 26 February 2018, available at: https://bit.ly/30TcvCz.

[79] ECtHR, Judgment, 9 February 2023, M.R and others against Poland, available (FR) at: https://bit.ly/3M0Us6s.

[80] ECtHR, Application 404464/22, M.S.T. and Others against Poland, available in English at: https://bit.ly/4dmkLQp.

[81] ECtHR, Application, Z.H.R. and others v Poland, available in English: https://bit.ly/4dq4iKR.

[82] ECtHR, Application no. 22399/22, M.H.D. and Others against Poland, lodged on 28 April 2022
communicated on 10 July 2023, available in English: https://bit.ly/4b18nDU.

[83] HFHR, Pierwsza sprawa z Polski dotycząca detencji cudzoziemców przed Komitetem Praw Człowieka ONZ, available (PL) at: http://bit.ly/2MOh8v3.