Overview of the main changes since the previous report update

Poland

Country Report: Overview of the main changes since the previous report update Last updated: 30/11/20

Author

Independent

This report was last updated in March 2019.

 

Asylum procedure

 

  • Access to territory: Access to the territory and to the asylum procedure at the border in Terespol remains one of the main challenges in 2019. According to statistics provided by the Border Guard, 1,610 persons applied for international protection at the border crossing point in Terespol, which constitutes 39% of all applicants in 2019. Moreover, 4,378 persons were refused entry at the border crossing point in Terespol and only 81 persons were able to lodge an appeal against the refusal of entry.[1] Civil society organisations and other actors continue to document the irregularities and incidents occurring at the border. Despite the repeated reports, interventions and litigation in 2016-2019, the Polish government denies the allegations of unlawful practices at the border.

 

  • Personal interview: Several issues were reported regarding the personal interview. This includes the fact that applicants have been held responsible for inconsistencies in their statements although these resulted from improper interpretation. Moreover, NGOs stress that there is a persisting issue with the way interviews are being recorded, as the report is prepared in Polish and is not a verbatim transcript. As a result, applicants become familiar with the content of the report only after the interview has been conducted and any clarifications made during the appeal or in a subsequent proceeding are generally not taken into account.[2]

 

  • Suspensive effect of onward appeals: The main development in 2019 concerns onward appeals to the Administrative Courts, as the latter have started to suspend the enforcement of negative decisions during appeal proceedings, thus protecting applicants against refoulement during this time. The Supreme Administrative Court also issued judgements in 2019 in which the suspensive effect was upheld.[3]

 

  • Legal assistance: Access to legal assistance has been severely restricted since 2016 because of a lack of funding for NGOs and the suspension of the Asylum, Migration and Integration Fund (AMIF). However, in 2019, a call for proposals has finally been opened to NGOs again. While this marks a positive step, its impact remains limited as only 6 projects concerning asylum seekers were accepted. Moreover, the low participation of NGOs to the call for proposals results from the fact that they had to reduce their activities and resources in recent years, while others even ceased to exist. In January 2020, several NGOs urged the European Commission to amend the system of distribution of EU-funding so that it can also be directed to NGOs providing assistance to asylum seekers and migrants.[4]

 

  • Bill on border procedure and safe countries: There is no border procedure in Poland. However, a bill presented in January 2017 was updated in 2019.[5] According to the proposal, if a negative decision is issued during the border procedure, the Office for Foreigners will also decide on return in the same decision. An appeal, which has no suspensive effect, can be lodged within 7 days in front of the Voivodeship Administrative Court. The draft law also provides for the adoption of a list of safe countries of origin and safe third countries. The Commissioner for Human Rights and NGOs, which had already raised concerns in the past, published their statements on the new draft law. [6] As of February 2020, the draft was still under discussion.

 

  • Vulnerable applicants: The lack of identification mechanisms of vulnerable applicants persisted in 2019 and vulnerability assessments by medical experts are rarely conducted. In 2019, the UN Committee against Torture highlighted the issue of a lack of appointment of experts to determine whether foreigners are victims of torture.[7] The authorities, however, continue to argue that the qualification as a victim of torture does not require an opinion from a specialist and is a part of specialised medical assistance provided during the asylum procedure. Case-law seems to follow that reasoning, thus putting vulnerable applicants at risk.

 

Reception conditions

 

  • Access to reception: Given that the Administrative Courts have started to suspend the enforcement of negative decisions during onward appeals, asylum seekers have access to reception conditions during that period. However, other practical obstacles to access reception persisted in 2019, e.g. practical problems in registering in first reception centres within two days after lodging the asylum application or being released from a detention centre, inter alia because of transportation costs. Moreover, asylum seekers are not entitled to material reception conditions when they have to wait for the day on which they can lodge their application for international protection.

 

  • Withdrawal of reception conditions: Following the CJEU’s judgement in Haqbin,[8] the Office for Foreigners (OFF) stopped applying the provision depriving the asylum seeker of material reception conditions when he/she violates house rules or is violent towards reception staff or other inhabitants. 

 

  • Access to health care: The duty hours of general practictioners (GPs) operating in reception centres were reduced. On the other hand, paediatricians have started to work in every centre, thus ensuring direct access to specialised doctors to asylum-seeking children. Overall, access to health care is problematic, as the quality of medical assistance provided by the service provider Petra Medica, contracted by the OFF since 2016, remains unsatisfactory.[9] In particular, some asylum seekers are refused access to more costly treatments or must wait several months to access such treatments, often after NGOs specifically intervened to that end. One of the biggest obstacles in accessing health care results from the lack of intercultural competence and knowledge of foreign languages amongst doctors and nurses.[10] Out of the 13 complaints that the OFF received in 2019 on conditions in receptions centres, all of them concerned medical assistance.[11]

 

  • Access to information in reception centres: The Supreme Audit Office concluded in 2019 that the Office for Foreigners had provided access to necessary information for asylum seekers at its headquarters, in the centres and through its website. The information concerned asylum procedure, material reception conditions, healthcare, rights and obligations of asylum seekers, appeal proceedings and NGOs’ assistance. In the centres, information meetings were organised on a regular basis and asylum seekers could receive leaflets published by NGOs. The Office for Foreigners published its own guides for asylum seekers as well.[12] However, it should be noted that the overall presence of NGOs in reception centres seems to have diminished in 2019 in comparison to 2018.

 

Detention of asylum seekers

 

  • Length of detention: NGOs raised concerns as regards the length of detention. It seems that, when ordered, detention is not treated as a measure of last resort and is often being automatically ordered for the maximum 6 months period permissible under law.[13]

 

  • Detention of vulnerable applicants: Vulnerable applicants such as families with children as well as victims of violence are still being detained in Poland. As confirmed by the UN Committee against Torture,[14] there is no effective identification and referral mechanism in place to protect vulnerable applicants from detention and the best interest of the child is rarely examined, despite a legal obligation to do so. This often leads to a considerable deterioration of their psychological well-being. The situation of vulnerable applicants in detention centres is further being litigated both at national and European level.[15] The Polish Government recognised itself a violation of Article 8 of the European Convention on Human Rights (ECHR) in the case of Bilalova against Poland which concerned a lack of assessment of the child’s best interest and the fact that alternatives to detention were not considered.[16]

 

  • Procedural safeguards for the review of detention: The right of defence is not fully observed as foreigners are not heard in person during court proceedings relating to the prolongation of detention. They do not receive a Border Guard’s motion on the decision to prolong detention and are infrequently informed about the date of the court hearing. Therefore, they are unable to fill a motion to the court to appoint a legal representative in their case (in the first instance proceedings). Moreover, legal assistance in detention centres is generally not effective because of a lack of a centralised and well-managed system which would ensure access.

 

Content of international protection

 

  • Access to housing: Beneficiaries of international protection in Poland face serious obstacles in securing accommodation, thus resulting in homelessness and destitution. This is due to the general lack of social housing in Poland, which also affects nationals. Moreover, general conditions to access housing under the law are difficult to fulfill for beneficiairs of protection, which is exarceberated by high prices and discrimination.[17]

 

  • Long-term residence permits: A report published by the Institute of Public Affairs in 2019 emphasised that Poland represents the country with the least favorable conditions, applying high fees and costs which constitute burdensome obstacles for beneficiaries of international protection given the very low level of social assistance benefits.[18]

 


[1] Letter from the Border Guard Headquarter to HFHR from 17 January 2020. No information on the outcomes was available.

[2] 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.

[3] 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.

[4] Letter of 11 Polish NGOs to the European Commission from 21 January 2020, available at: https://bit.ly/2RI51ii.

[5]Draft law available at: http://bit.ly/2IqboVu.

[6] The Commissioner for Human Rights, Letter commenting on the draft law from 1 April 2019, available in Polish at: https://bit.ly/31pTAQf; Legal Intervention Association, Letter commenting on the draft law from 15 February 2019, available in Polish at: https://bit.ly/2v6aiaV.

[7] Poland, UN Web TV, Consideration of Poland (Cont'd) – 1762nd Meeting, 67th Session of Committee Against Torture, 24 July 2019, available at: https://bit.ly/2RXiHqd, and reply of Poland, UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/2twn02w.

[8]CJEU (Grand Chamber), case C-233/18 Haqbin, Judgment of 12 November 2019.

[9] Information from the Office for Foreigners website: http://bit.ly/1XqYMIQ; Office for Foreigners, Guidebook Department of Social Assistance (2019), available at: https://bit.ly/39ljreM, 6.

[10] M. Koss-Goryszewska, ‘Służba zdrowia’ in A Górska, M Koss-Goryszewska, J Kucharczyk (eds), W stronę krajowego machanizmu ewaluacji integracji: Diagnoza sytuacji beneficjentów ochrony międzynarodowej w Polsce (Instutut Spraw Publicznych 2019), 43; Centrum Pomocy Prawnej im. H. Nieć, Situation of Dublin Returnees in Poland. HNLAC Information Note – July 2016, available at: http://bit.ly/2lkV08v, 8; HFHR, Letter to the Head of the Office for Foreigners, 1765/2016/BD, 13 September 2016. Information confirmed by SIP, 8 January 2020.

[11]Information provided by the Office for Foreigners, 22 January 2020.

[12] Supreme Audit Office, Przygotowanie administracji publicznej do obsługi cudzoziemców. Informacja o wynikach kontroli (2019), available (in Polish) at: https://bit.ly/2Sej7IT, 43.

[13]Article 89(5) Law on Protection.

[14] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36qh3BL.

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

[16] ECtHR, Dagmara BILALOVA against Poland, Application No 23685/14, lodged on 25 March 2014, available at: https://bit.ly/37kQJu3.

[17] Information available at: https://bit.ly/3d9U426.

[18] A. Wolffhardt, C. Conte, T. Huddleston, The European Benchmark for Refugee Integration: A Comparative Analysis of the National Integration Evaluation Mechanism in 14 EU Countries (Institute of Public Affairs, Warsaw, 2019), available at: https://bit.ly/39rQCNS, 62.

 

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