Asylum seekers are placed in a detention centre if alternatives to detention cannot be used and for the following reasons:[1]
- In order to establish or verify their identity;
- To gather information, with the asylum seeker’s cooperation, connected with the asylum application, which cannot be obtained without detaining the applicant and where there is a significant risk of absconding;
- In order to make or execute the return decision, if an asylum seeker had a possibility to claim asylum previously and there is a justified assumption that he or she claimed asylum to delay or prevent the return;
- When it is necessary for security reasons;
- 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 seekers 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, especially in the case of the unlawful crossing of the border and transfer under the Dublin Regulation. It was so in the case of migrants who were stopped at the Polish-Belarusian border in 2021 and 2022. Their requests for asylum were ignored and they were placed in detention centres based on the Act on foreigners.[3] Their asylum applications were registered only in detention centres.
There are concerns that detention is not used as a measure of last resort and is often applied or prolonged automatically.[4]
[1] Articles 87(1) and 88a(1) Law on Protection.
[2] Articles 87(2) and 88a(1) Law on Protection.
[3] [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.
[4] ECtHR, CASE OF NIKOGHOSYAN AND OTHERS v. POLAND, Application no. 14743/17, available at: https://bit.ly/36062N3.