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]

In 2019, only 17 persons that were transferred under Dublin were reported to benefit from this transport.[2] However, in the detention centre in Krosno Odrzańskie, according to the information provided by the SG, those asylum seekers who could not afford bearing the costs of travel to the reception centre were given a financial support from AMIF and – if needed – offered the accommodation and food from Caritas. Other detention centres did not report such good practices.  

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,[3] as under the law, an asylum seeker should be released if further detention constitutes a threat to their life or health.[4] 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.

Notwithstanding legal provisions, in practice it happens that vulnerable asylum seekers are detained, even when they were diagnosed with mental health problems as a result of past events.[5] 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. According to the Commissioner for Human Rights sometimes foreigners are placed in a detention centre without having been examined by a physician. Courts do not accept psychological opinions submitted by independent psychologists (e.g. from NGOs),[6] and they rely on short opinions (very often it is one sentence stating there are no obstacles to prolonging the stay in guarded centre) of the physician who works in detention centre (in detention center in Krosno, physician is an orthopaedist). In practice, only courts of higher instance call on experts to determine applicants’ mental health state[7] but this happens very rarely. Additionally, courts do not conduct their own evidentiary proceedings.

In 2019, only 11 foreigners were released on the basis of health considerations.[8] As the experience of lawyers of NGOs such as the Association for Legal Intervention shows, a person’s psychological condition is rarely taken into account by the courts. 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.[9]

In March 2018 the Commissioner for Child Rights sent a letter to the presidents of courts of appeal in which he shared his observations regarding the provisions on the prohibition to hold victims of violence in detention centers. In his opinion, placing a foreigner in detention when it is known that he or she is a victim of violence is against the law. The conclusion that a foreigner is a victim of violence can be drawn from medical or psychological opinions or foreigners’ credible statements submitted in the asylum application. Furthermore, foreigners should be present during a hearing at the court regarding their appeal against the decision prolonging their stay in a guarded centre (on the different types of detention centres, see Place of detention) in order to enable the judge to assess the foreigner’s behavior and conduct its own evidentiary proceedings in order to verify if a foreigner is a victim of violence by appointing a court expert.[10]

In his September 2017 report within the National Mechanism for the Prevention of Torture, the Commissioner for Human Rights addressed cases of inadequate detention of Dublin Returnees with PTSD. According to the report, the problems occurred due to numerous procedural shortcomings during the transfer of the family to Poland by the German police as well as due to the lack of appropriate operational algorithms that should have been implemented in order to promptly identify victims of torture and violence as well as persons whose mental and physical condition rule out their placement in detention. After visits in detention centers in 2018 and 2019, the Commissioner for Human Rights found that the problem persisted. Although the Border Guard implemented guidelines on how to deal with persons requiring special treatment, they do not clearly state that the person identified as a victim of violence should be released from detention (as required by the law).[11] NGOs add that the system in place is not effective because a person who is a victim of violence should not be in detention at all. Identification should be conducted before placing in detention and not in detention.[12]

Additionally, the Commissioner found that there was an ongoing problem with the system of the identification of vulnerable groups in Poland. Psychologists employed in detention centres are charged with many tasks including the recruitment, psychological support and training of border guard officers and care provided to migrants is merely one of them.[13] Moreover, pursuant to the Border Guard’s internal document cited in the report, psychologists can offer psychological aid in the case of traumatic events only at the written request of the doctor examining the applicant. Thus, applicant themselves may not initiate a psychological evaluation which could result in an official psychological opinion. According to the report, this restriction impedes identification of potential victims of torture.

Furthermore, during 2016 inspections, the Commissioner for Human Rights’ representatives discovered individual cases of persons whose detention reflected ineffective functioning of the identification system for victims of torture and violence, which should protect these persons from detention.[14] Details of the cases, identified in three out of four visited detention centres, were further elaborated in the letter to the Chief Commander of the Border Guard dated 30 June 2017.[15] In this letter the Commissioner for Human Rights noted that persons seeking international protection can be left in a less favorable situation that the returnees, whose situation is regulated under the Border Guard’s internal guidelines concerning vulnerable persons.

In 2018 the Commissioner for Human Rights visited another 3 detention centres and in the reports the Commissioner reminds that the internal algorithm, on the basis of which the identification is performed, does not clearly state that vulnerable persons, once identified, should be immediately released from detention. The Commissioner observes that lack of accessible treatment and therapy in the detention centres deepens the trauma.[16] Torture survivors stay in detention centres and even if they are identified at a later stage, they are not released from detention. Medical staff and psychologists in the detention centers lack expertise and proper knowledge of Istanbul Protocol.[17]

After the visit in the detention centre in Biala Podlaska in 2018, the Commissioner for Human Rights again confirmed that the Border Guard’s guidelines on how to deal with persons requiring special treatment should clearly state that the person identified as a victim of violence should be released from detention (as required by the law) and not only offered treatment in detention.[18]

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, 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.[19]

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.

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 March 2017, the Supreme Court ruled in a case of compensation for moral damage suffered by a mother with two minor children unlawfully placed in the detention centre in Przemyśl. The Court reversed the judgment of the Court of Appeal in Warsaw and remanded the case. The applicants were victims of violence in the country of origin and were not identified as victims of torture and other forms of serious violence despite the fact that Border Guard was informed about their history. The Supreme Court stressed that the court is obliged to summon an expert witness when assessing the impact of detention on the mental state of a foreigner.[20]

In July 2017, the Regional Court of Przemyśl released a family from the detention centre in Przemyśl who had been detained for 10 months. The family was placed in the detention centre in October 2016, after multiple attempts to apply for asylum at the border crossing point in Medyka on the Ukrainian border. During their stay, the mother was diagnosed with adaptation and depressive disorders related to violence and torture at a police station in her country of origin and detention in Poland which had a negative impact on her and her children. In June 2017 she tried to commit suicide. Although her and her children’s poor mental state was confirmed in successive psychological and psychiatric assessment reports, Border Guards refused to release her and her family. HFHR filed a complaint to the ECtHR on her behalf.[21] On 8 January 2018 the European Court of Human Rights communicated the case of M.Z and Others against Poland.[22] As of February 2020, the case was pending.

In another case a family from Tajikistan was placed in the detention centre in Przemyśl for 200 days despite the fact that in his asylum application, the father informed the Border Guard that he had been a victim of torture in the country of origin. His bad mental condition, diagnosed PTSD, was later confirmed by expert opinion written by the psychologist employed by the Border Guard. Furthermore, the mental condition of his wife worsened and the son was also diagnosed with PTSD. The family was released in May 2017, after the psychologist informed the administration of the detention centre that prolonged stay in a guarded centre would be a threat to their life.[23]

Another case concerns a single mother with four children aged 17, 14, 11 and 10. They were placed in the detention centre in Kętrzyn in July 2017. Despite the fact that children were victims of domestic violence and their abilities to cope with stress in the detention centre were impeded and two private expert opinions on their poor mental state, the family was not released from the guarded centre.[24]

On 25 June 2019 District Court in Przemyśl released from the detention centre a rejected asylum seeker who was a victim of torture. The court appointed an independent an expert- a psychologist who examined the applicant. The opinion confirmed that he was a victim of violence and suffered from PTSD. The court stated that the Border Guards should properly assess state of health of the foreigner if he claimed that experienced torture in his country of origin. In addition, court noted that the opinion of the Border Guards’ physicians may be questioned as it cannot be treated as independent expert opinion.[25]

In two other cases the national courts granted compensation for unlawful detention of foreigners; in one of the cases the Regional Court in Olsztyn stated that a person who experienced violence cannot be detained regardless of a form of violence and identity of the perpetrator.[26]

On 18 January 2020, the European Court of Human Rights communicated the case of A.A. against Poland.[27]. Case concern asylum seeker from Burundi, who came to Poland in January 2019 with the fake Swiss ID. The applicant was detained and placed in a detention centre in Kętrzyn despite of 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 center 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.

Detention of children

According to the law, unaccompanied asylum-seeking children should not be detained,[28] but in practice it happens when there are doubts as to their age or if they were placed in detention as irregular migrants (which is possible under the law) and only then applied for international protection. Unaccompanied children are placed only in a detention centre in Ketrzyn, where adequate rooms (with 15 beds) are separated from the remaining part of the centre.

Asylum-seeking children who are with members of their family can be placed in detention centres together with accompanying adults.[29] At the end of 2019, 8 children were held in detention centres in Kętrzyn, Biała Podlaska and Przemyśl, and 132 in total were detained in 2019 (unaccompanied children and children in families, in asylum and return procedure).[30] In 2019, children stayed in detention centres in average for 83 days (in the guarded centre of Biała Podlaska in average for even 115 days and for 134 days in Ketrzyn).[31]

In 2018, the policy of protection of children in detention was put in place. The new algorithm was 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 a behaviour which should be considered an abuse.[32]

In March 2018 the Commissioner for Child Rights sent a list of recent international recommendations concerning decisions on placing children in detention centers for foreigners to the presidents of courts of appeal (prezesi sądow apelacyjnych). Moreover the Commissioner underlined that placing children in detention is never in the best interest of a child,[33] always against their fundamental rights and could have a negative impact on their psycho-physical development. In addition, in the Commissioner’s assessment, courts check the possibility of using alternatives to detention in a superficial way. Courts held very often that it is not possible to impose an alternative to detention on the basis that asylum seekers have no place to stay ignoring the fact that asylum seekers have a right to live in open centers for foreigners managed by the Head of the Office for Foreigners.[34]

In December 2018, the Commissioner for Child Rights in his letter to the Prime Minister indicated that all internal SG documents on the detention of children should be lawful and they should not render rules on releasing victims of violence ineffective.

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. According to CAT conditions in detention centres require improvements and Poland should refrain from placing asylum seekers and in particular children in guarded centres for foreigners.[35] In addition, Poland should introduce a principle to the 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.[36]

In the opinion of Commissioner for Human Rights, Commissioner for Children Rights,[37] HFHR 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.[38]

As of 2018 and 2019 detention decisions still did not consider the best interest of the child.[39] When placing a child in a guarded center together with parents, the courts either do not mention children in a justification of the detention decision or justify detention relying on the best interest of the child principle, or limit their assessment to statement that children will be with their parents or detention centres ensure medical and psychological support to foreigners. In addition, the courts place families in guarded centres for a maximum period of time, rather than for the shortest period.[40]

Detention is not treated as a measure of the last resort. The courts ignored assessment of the best interest of the child principle, or did not consider the individual situation of the child. In addition, courts did not order any further medical or psychological examination and did not interview children but instead relied on the documents presented by the Border Guards. Furthermore, justifications of the courts' decisions were adapted from the BG application for prolonging the detention. Moreover, some courts treated detention as a form of punishment for crossing the border illegally.[41]

On 8 January 2018 the European Court of Human Rights communicated the case of M.Z and Others against Poland.[42] The application was lodged on 25 April 25 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 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 taken into account and the length of detention had an impact on their family life. An application for a compensation for unlawful detention of the family was submitted and will be considered by the District Court in Warsaw. The motion was based, among others, on the fact that the family was deprived of liberty, despite of the fact that the applicant's psychophysical condition indicated that she was a victim of violence and that her health deteriorated because of detention. The application also emphasized that impact on minor children was not investigated properly when deciding on detention.[43] As of March 2020, the case was pending.

On 10 April 2018, the European Court of Human Rights issued a judgment in the case of Bistieva and others against Poland. The case concerned a family of five, placed in the detention centre in Kętrzyn for almost 6 months. The court ruled that their right to family life was violated and Polish authorities did not assess the impact of the detention on the family, did not consider alternatives to detention and did not view detention as a measure of a last resort. Furthermore, the court held that no sufficient reason was provided to justify the detention and the best interest of the child was not taken into account. The court held that the family was in the detention centre for too long and the preceding asylum procedure concerning a family with children should be conducted faster and with greater diligence. Proceedings of execution of that judgment take place before the CoE Committee of Ministers. In June 2019 the government presented an Action Report on the implementation of the judgment in this case. According to the government, alternatives to detention are taken into account in cases of families with children, detention procedures are standardized, identification system of vulnerable groups is developed and implemented, and asylum cases persons in detention are treated with priority by the asylum authorities. Moreover, the guarded centres are adjusted to the needs of minors, children have access to education and medical care. Additionally, the Bistieva judgment has been translated into Polish, published on the Ministry of Justice website and disseminated among asylum authorities and Border Guard. Hence, Polish government stated that general measures adopted are sufficient and Poland fulfilled its obligations. In the opinion of Border Guard, that judgment does not impact prolongation of a foreigners’ stay in detention centres.[44] On the other hand, according to HFHR, the general measures taken by Poland are not sufficient because the amendments in Polish law are not always applied in practice and Polish courts, placing children in detention centre, do not refer to the child’s best interest and do not treat children as a part of the proceedings, ignoring their presence. Furthermore, the courts rely on the information provided by the Border Guard and disregard independent psychological opinion on the negative impact of detention on children. Detention is not applied as a measure of last resort but rather it is maintained for the maximum period.[45]

On 29 January 2019 the European Court of Human Rights communicated the case R.M. and Others against Poland. The application was lodged on 26 February 2018 and concerned family with three minor children, placed in the detention centre in Kętrzyn for almost eight months. Family was transferred to Poland under Dublin III regulation. Detention was prolonged despite the psychological problems of one of the children. The applicants presented an expert opinions but the courts extended their detention. The applicant complains that the detention of her children, then aged eleven and three years, constituted treatment contrary to Article 3 of the ECHR and her detention was also arbitrary, unjustified and unnecessary. The applicant also stated that placing and continuation of their detention had violated Article 5(4) of the ECHR as she had not received Border Guard motions on prolongation of their detention. Additionally, she complained that detention was a disproportionate interference with their right to respect for their family life.[46]

On 6 September 2019, the Polish government submitted a unilateral declaration in the case of Bilalova against Poland and acknowledged a violation of Article 8 of the ECHR. The case was communicated in 2014 and concerned administrative detention of a mother with five minor children aged between 4 and 10 for three months. The applicant complained that Polish authorities never assesses the child’s best interest and the alternatives to detention were not considered.[47]

In November 2019, a complaint to the UN Human Rights Committee was submitted to challenge another case of child detention. It addressed detention of asylum seeking family (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, courts did not properly asses children’s situation and their best interests. The District Court, prolonging the detention of the family, considered only the opinion of Border Guard stating that there were no contradictions for the further children’s’ stay in detention centre. Likewise, Border Guard refused to release the family despite the fact that mental condition of children was deteriorating.