The right to reception at different stages of the procedure
Asylum seekers are entitled to material reception conditions during all asylum procedures in Poland. There is no difference between regular, accelerated and admissibility procedures, as well as first appeal.[1] The provision of reception conditions does not depend on the financial situation of asylum seekers.
Asylum seekers are entitled to material reception conditions after claiming asylum, from the moment they register in the first reception centre. They should register there within two days after making their application, otherwise, their procedure is discontinued (unless they declare another place of stay), as was the case in 427 cases in 2022 (up from 59 in 2021).[2] Only medical assistance can be granted from the moment of making an asylum application (i.e. before registration in a first reception centre) in special situations, i.e. in case of threat to life and health.[3] Since 24 February 2022, it has also been possible to grant a financial allowance for asylum seekers living outside reception centres without their prior registration in one of the first-reception centres.[4]
Exceptionally, the Border Guard is entitled to inform an asylum seeker that it is impossible to apply for asylum the day they present themselves at the Border Guard unit. In such a situation, the Border Guard registers a declaration of intention to submit the asylum application and determines a later date (no longer than 3 working days, in case of massive influx – 10 working days) and place to officially apply for asylum.[5] In 2022, such an opportunity was given in total with regard to 4,013 foreigners (corresponding to 3,570 declarations registered, a significant rise in comparison with recent years).[6] By law, asylum seekers waiting to officially apply for asylum are not entitled to any form of material reception conditions in Poland. The problem concerns both first-time asylum seekers and rejected asylum seekers who intend to apply for asylum again, but the latter try to avoid a gap in obtaining assistance by submitting a subsequent application before the entitlement to material reception conditions resulting from a previous asylum procedure elapses.[7]
Reception conditions are provided:[8]
- (a) until 2 months after a final positive decision on asylum;
- (b) up until 14 days after a final decision discontinuing the asylum procedure (e.g. in admissibility procedures);
- (c) up until 30 days after a final negative decision on asylum given on the merits by the Office for Foreigners or the Refugee Board.[9]
In principle, during the onward appeal procedure before the Voivodeship Administrative Court in Warsaw, asylum seekers are not entitled to material reception conditions.[10] In practice, when the court suspends enforcement of the contested decision of the Refugee Board for the duration of the court proceedings, asylum seekers are re-granted material reception conditions to the same extent as during the administrative asylum procedure, until the ruling of the court (according to the Office for Foreigners, there were 10 such cases in 2022).[11] In 2022, in 28 cases the Court decided to grant suspensive effect and in 22 cases refused to grant suspensive effect to a negative decision concerning international protection.[12] In practice, asylum seekers deal with the problem of the lack of material reception conditions during the court proceedings by submitting subsequent asylum applications.
Asylum seekers who are subject to a Dublin transfer from Poland are entitled to material reception conditions until the day they should leave the country.[13] Thus, this assistance may be granted for a longer period of time than in other cases when a decision discontinuing the proceedings is issued (it is an exception from the 14 days rule mentioned above). Moreover, Dublin returnees may request additional assistance. The request has to be made in a specific term (since 7 April 2023, 21 days from the moment when the decision on transfer became final – instead of 30 days) to the Chief Commander of the Border Guard (instead of the Head of the Office for Foreigners). After this time, the demand of the asylum seeker is left without consideration.[14] The additional assistance covers travel costs, administrative payments for travel documents or visas and permits, the cost of food before and during the travel, accommodation before the travel, and medical assistance.[15] The decision on the assistance before and during the Dublin transfer cannot be appealed to the second-instance administrative authority, but a judicial remedy should be available in front of the Voivode Administrative Court.[16]
Moreover, access to material reception conditions is to be continuously provided if a person concerned applies for assistance in a voluntary return to the Chief Commander of the Border Guard.[17]
Some applicants are not entitled to material reception conditions during the asylum procedure e.g. beneficiaries of subsidiary protection (applying for asylum again);[18] foreigners benefiting from humanitarian stay or tolerated stay; foreigners staying in Poland based on temporary stay permit, permanent stay permit or long-term residence permit; foreigners staying in youth care facilities or detention centres or a pre-trial custody or detention for criminal purposes.[19] Beneficiaries of subsidiary protection, foreigners staying in Poland based on a permanent stay permit, long-term residence permit or – in some cases – temporary stay permit are entitled to state benefits (general social assistance system) to the same extent as Polish citizens. Foreigners who were granted a humanitarian stay or tolerated stay are entitled to state benefits only in the form of shelter, food, necessary clothing and an allowance for a specified purpose.[20]
The special rules concerning the duration of material reception conditions related to the COVID-19 pandemic were repealed in April 2022. Thus, the prolongation of the provision of material reception conditions beyond the regular timeframes lasted only until 15 May 2022.[21] According to the Association for Legal Intervention (SIP), the repeal was adopted in violation of the constitutional principle of protection of rightfully acquired rights. In 2022, SIP joined cases before administrative courts concerning the protection of these rights. These proceedings are pending.[22]
Obstacles to accessing reception
There are some practical obstacles reported in accessing material reception conditions. In 2022, the problems identified in recent years continued.[23] The difficulties intertwined with transport from detention centres to reception ones, and with the humanitarian crisis at the Polish-Belarusian border, were most prominent.
Transport from detention centres
Detained asylum seekers face great difficulties when they are released from detention centres. By law, they are not entitled to any support immediately after release. They are granted material reception conditions only from the moment of registration in a reception centre, which is very often located far away from the detention centre. As a result, asylum seekers have difficulties covering the cost of transport to the reception centre and reaching it within the set deadline of 2 days.[24] It should be organised by the Border Guard regarding released pregnant women, single parents, elderly and disabled people.[25] The partial data that were made available show that the respective provision of the Law on Protection has been applied in practice concerning 105 third-country nationals in 2022, including 101 detained in Kętrzyn and one family of 4 detained in Białystok.[26]
Besides that, Border Guard declares that it buys train or bus tickets for released foreigners (Krosno Odrzańskie and Kętrzyn – an unknown number of persons, Białystok – 8 persons, Lesznowola – 62 persons) or transports them to the closest train or bus station (Krosno Odrzańskie – unknown number, Lesznowola – 27 persons) or to a reception centre (Białystok – unknown number, Kętrzyn – 35 persons). Tickets for trains or other means of communication were bought also by NGOs (SIP, Dekalog Foundation), NGOs offered also accommodation and food to released asylum seekers from the Krosno Odrzańskie detention centre.[27]
On the other hand, in December 2022, Stowarzyszenie EGALA and Grupa Granica reported that an Ivory Coast national was released from the detention centre in the middle of the night, in inappropriate clothing for the minus 12°C weather and without any guidance as to where he should go. He was supposed to be assisted with transportation to the reception centre by an NGO later that day, following the previous information from the Border Guard that he would be released in the afternoon. Despite this, he was released a night before. NGOs have been repeatedly calling for the Border Guard to release foreigners during the day when they can access public transportation and travel more safely, albeit to no avail.[28]
In January 2023, the difficulties with the transport of persons released from detention were noticed by the Polish Human Rights Commissioner. He explained that third-country nationals do not know the Polish language, often do not have Polish currency, and are released from detention in the evenings or at night, which makes their travel very difficult. They sometimes receive some financial support to cover travel expenses from the Border Guard (also from EU funds) or NGOs. However, this is not regulated in law and depends on the willingness and capabilities of those entities. According to the Commissioner, some support mechanisms addressing this problem should be introduced into the Polish legislation. In February 2023, the Border Guard responded that they can act only within their powers arising from the law in force, so they can only provide transport to vulnerable third-country nationals released from the detention centre. The Border Guard tries to release foreigners during the day, but it is sometimes difficult due to the late delivery of the court’s decision ordering the release.[29]
At the Polish-Belarusian border
The humanitarian crisis at the Polish-Belarusian border, that started in 2021 and continued in 2022 (see Access to the territory and pushbacks), left many prospective asylum seekers without access to material reception conditions.[30] Foreigners that were stuck on that border or pushed back to Belarus were often not allowed to apply for international protection in Poland – against Polish, EU and international law – thus, they could not obtain material reception conditions, including medical assistance, that is available to asylum seekers whose applications have been registered. In those circumstances, humanitarian aid (i.e. food, clothes, blankets) and medical assistance[31] had to be provided by several local and state authorities (including the Commissioner for Human Rights)[32], NGOs and private persons. However, its scope and effectiveness were greatly limited after the introduction of the emergency state and – afterwards – similar measures.
[1] Article 70 Law on Protection.
[2] Article 40(1)(2) in conjunction with Article 40 (2)(1) Law on Protection. Information provided by the Office for Foreigners, 3 February 2023 and 26 January 2022. This number includes all situations where asylum seekers did not register in the reception centre in 2 days, so both when they did not manage to get there in time and when they did it intentionally (e.g. they left Poland to seek asylum elsewhere).
[3] Article 74(1)(1) Law on Protection.
[4] Article 74(1a) Law on Protection.
[5] Article 28(1) Law on Protection.
[6] Information provided by the Border Guard’s Headquarters, 17 January 2023. In 2019, a later date was given in 165 cases, in 2020 – in 298 cases and in 2021 – in 937.
[7] Information provided by SIP, 8 January 2020.
[8] Article 74(1) Law on Protection; Article 299(6)(1)(b) Law on Foreigners.
[9] It is connected with the obligation to depart from Poland in 30days after receiving final negative decision on asylum.
[10] After the administrative appeal procedure before the Refugee Board, there is a possibility of an onward appeal before the Voivodeship Administrative Court in Warsaw, but only points of law can be litigated at this stage.
[11] This is the long-standing interpretation by the Legal Department of the Office for Foreigners. Information provided by the Office for Foreigners, 3 February 2023.
[12] Information provided by the Voivodship Administrative Court on 17 January 2023. However, with regard to some applications for granting suspending effect the outcome of the proceedings was not given.
[13] Article 74(3)(2) Law on Protection, since 7 April 2023.
[14] Article 75a(6-7) Law on Protection.
[15] Article 75a(3) Law on Protection, since 7 April 2023.
[16] Article 75a(9) Law on Protection, in force since 7 April 2023. Given the novelty of the measure, practice regarding its application cannot be described at the time of writing.
[17] Article 74(3)(1) Law on Protection, since 7 April 2023.
[18] In practice, some foreigners after the end of the asylum procedure, in which they were granted subsidiary protection, apply for asylum again in order to be granted refugee status.
[19] Article 70(2) Law on Protection.
[20] Article 5(2) Law of 12 March 2004 on social assistance.
[21] Office for Foreigners, ‘Zakończenie przedłużonego okresu udzielania pomocy socjalnej’, 22.04.2022, available in Polish: https://bit.ly/3KsCKov. For more about the COVID-related special rules, see 2020 and 2021 AIDA report on Poland, available at: http://bit.ly/3ZAFxDz.
[22] SIP, ‘Protection of acquired rights – we join court proceedings’, 5 December 2022, available at: https://bit.ly/3TVAoF7.
[23] For further information, see previous updates of AIDA, Country Report Poland, available at: http://bit.ly/3ZAFxDz.
[24] Article 40(2)(2) of the Act on Protection.
[25] Article 89cb Law on Protection. Other vulnerable asylum seekers cannot benefit from the organised transport, which has been described as ‘a gap in asylum system’: Pachocka, M. and Sobczak-Szelc K., ‘Refugee Protection Poland – Country Report’, Multilevel Governance of Mass Migration in Europe and Beyond Project (Horizon2020), January 2020, available at: https://bit.ly/2WpN0sh, 73.
[26] Information from different branches of the SG from March 2023.
[27] Ibid.
[28] Stowarzyszenie EGALA, ‘Z SOC-u o trzeciej nad ranem’, 30.12.2022, available in Polish here: http://bit.ly/3M682pH.
[29] Human Rights Commissioner, ‘RPO pyta o pomoc dla cudzoziemców zwalnianych z ośrodków strzeżonych. Straż Graniczna odpowiada’, 3 January and 7 February 2023, available in Polish here: http://bit.ly/42SHQVz.
[30] See e.g. K. Czarnota and M. Górczyńska, The Lawless Zone: Polish-Belarusian Border Monitoring, HFHR, June 2022, available in English here: http://bit.ly/3K206Dp; Fundacja Ocalenie, ‘Przemoc państwa i działania oddolne’, May 2022, available in Polish here: https://bit.ly/3JZCdwj.
[31] For more, see Health care section below.
[32] Commissioner for Human Rights, ‘Pomoc materialna RPO dla cudzoziemców i organizacji pomocowych działających przy granicy polsko-białoruskiej’, 23 September 2021, available in Polish at: https://bit.ly/3tnTGG8.