Grounds for detention

Asylum applicants are placed in a detention centre if alternatives to detention cannot be used and based on the following grounds:[1]

1. In order to establish or verify their identity;
2. To gather information, with the asylum applicant’s cooperation, connected with the asylum application, which cannot be obtained without detaining the applicant and where there is a significant risk of absconding;
3. In order to make or execute the return decision, if an asylum applicant had a possibility to claim asylum previously and there is a justified assumption that they claimed asylum to delay or prevent the return;
4. When it is necessary for security reasons;
5. In accordance with Article 28 of the Dublin III Regulation, when there is a significant risk of absconding and immediate transfer to another EU country is not possible.

A “risk of absconding” of the asylum applicant exists particularly if they:[2]

• Do not have any identity documents when they apply for asylum;
• Crossed or attempted to cross the border illegally, unless they are so-called “directly arriving” (i.e. arrived from the territory where they could be subject to persecution or serious harm) and they submitted an application for granting refugee status immediately and they explain the credible reasons of illegal entry;
• Entered Poland during the period for which their data were entered into the list of undesirable foreigners in Poland or to the Schengen Information System in order to refuse entry.

Detention is possible in law and in practice in all asylum procedures. There are concerns that detention is not used as a measure of last resort and is often applied or prolonged automatically.[3]

In 2024 and 2025, 96-100% of Border Guard requests were granted by courts. The acceptance rate for requests for extension of detention in 2025 ranged from 87% to 100%.[4]

Additionally, third-country nationals are in most cases not represented by professional lawyers-attorney at law or advocates, and the courts rely on the Border Guard’s applications, which omit arguments that could indicate that detention is pointless or unjustified. Border Guards are treated by the courts as experts in migration, which is one of the reasons why their interpretation of the law is accepted by courts.[5] Research also shows that Border Guards’ applications on detention presented to the courts did not contain information about contraindications to placing the migrants in detention, for example due to the person’s state of health.[6]

In 2025, 2,911 third-country nationals were placed in detention per the Border Guards.[7]

According to relevant research, the Border Guard appears to give priority to internal regulations (instructions, circulars, recommendations issued by their superiors) above national law.[8] Submission of requests on prolonging the stay in detention by Border Guard is generally considered standard and normal practice. It is not accompanied by a deeper reflection on the need for further detention.[9]

[1] Articles 87(1) and 88a(1) Law on Protection.

[2] Articles 87(2) and 88a(1) Law on Protection.

[3] ECtHR, Nikoghosyan and others v. Poland, Application no. 14743/17, 3 March 2022, available here; ECtHR, K.G. and S.G. v. Poland, Application no. 62466/19, Judgment of 27 November 2025. ‘PLN 50,000 compensation for wrongful detention in a guarded center for an Iraqi refugee’, available in Polish here. Regional Court in Łódź, XVIII Ko 30/23, May 15, 2024, mentioned in SIP, ‘PLN 12,000 for 53 days of illegal detention in a guarded center for foreigners’, 24 June 2024, available in Polish here; HFHR, ‘Court awards PLN 40,000 compensation to Ethiopian man for wrongful placement in detention centre for 179 days’, 11 December 2024, available in Polish here.

[4] Information based on the analysis of information received by HFHR from district and regional courts in procedures of access to public information covering the period of 1 January 2024 to 31 December 2024 and January to November 2025.

[5] 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, 30-32, 87,121.

[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, 162. National Mechanism for the Prevention of Torture KMPT.572.3.2025. AG Report of the National Mechanism for the Prevention of Torture on the visit to the Detention Center and Center for Foreigners in Przemyśl, 3 September 2025, available in Polish here. The visit took place in May 2025.

[7] There is no central system to count persons deprived of liberty, so it is possible that some people may be counted multiple times, Information from Border Guards Headquarters, 6 March 2026  and  different Border Guard divisions in 2026: there were 609 third-country nationals detained in Bialystok, 448 in Biala Podlaska, 779 in Lesznowola, 556 in Kętrzyn.

[8] 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, 121.

[9] 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, 165.