Criteria and restrictions to access reception conditions

Poland

Country Report: Criteria and restrictions to access reception conditions Last updated: 30/11/20

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Independent

The provision of reception conditions does not depend on the financial situation of asylum seekers.[1]

 

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.[2]

Asylum seekers are entitled to material reception conditions after claiming asylum, from the moment they register in one of the first reception centres. They should register there within two days after applying for asylum, otherwise their procedure will be discontinued, as was the case in 51 cases in 2019.[3] Only medical assistance can be granted from the moment of claiming asylum (i.e. before registration in a first reception centre) in special situations, in case of threat to life and health.[4] Proof of an asylum application is confirmed by the temporary ID issued by the SG after submitting the claim.[5] However, according to the Office for Foreigners, the lack of such a document is not a problem for registering at the reception centre.[6] Asylum seekers are also entitled to the temporary ID when they are returned to Poland on the basis of the Dublin Regulation, if they claimed for asylum before departing from Poland and they state that they want to continue the asylum procedure in Poland.[7]

Exceptionally, the SG is entitled to inform an asylum seeker that it is impossible to apply for asylum the day he/she presents him/herself at the SG unit. In such a situation, the SG must determine a later date and place to submit the asylum application.[8] The asylum seeker should not wait for submitting asylum application longer than 3 working days (in case of massive influx – 10 working days). Between January and June 2018, such later date was given in 112 cases, in 2019 it was given in total in regard to 165 foreigners.[9] In such a situation only the intention to apply for international protection is registered and it does not entitle the person to any form of material reception conditions in Poland. The lack of material reception conditions during ‘the waiting period’ may constitute a grave problem in regard to first-time asylum seekers. Regarding rejected asylum seekers, if they intend to apply again for asylum, to avoid a gap in obtaining the assistance, they try to submit a subsequent application before the entitlement to material reception conditions resulting from a previous asylum procedure elapses.[10]

As a general rule, reception conditions (material assistance, accommodation, medical care) are provided up until 2 months after the decision on the asylum application becomes final (either positive or negative, see Housing).[11] However, when the procedure is terminated through a decision discontinuing the procedure (e.g. in admissibility procedures), reception conditions are provided until 14 days after the decision becomes final.[12] Moreover, reception conditions are not provided, as soon as the period within which an asylum seeker was obliged to leave Poland voluntarily has passed.[13] Asylum seekers as a rule are obliged to leave Poland in 30 days from the day when the final decision of the Refugee Board was delivered or in 30 days from the moment when decision of the Office for Foreigners becomes final (if they do not appeal).[14] In practice it means that most often reception conditions are provided only for 30 days, not 2 months, in case of a negative decision.

In principle, during the onward appeal procedure before the Voivodeship Administrative Court in Warsaw, asylum seekers are not entitled to material reception conditions.[15] In practice, when the court suspends enforcement of the contested decision of the Refugee Board for the time 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.[16] However, since 2016 the Court had mostly refused to suspend enforcement of negative decisions on international protection (see Regular Procedure: Appeal) for the time of the court proceedings,[17] which left asylum seekers without any material reception conditions for this period. In 2019, the trend has changed and the court started to grant a suspension in those cases (the court decided to suspend the enforcement of the negative asylum decision in 34 cases and refused it in 21 cases[18]). In practice, asylum seekers deal with the problem of the lack of material reception conditions during the court proceedings by submitting subsequent asylum applications.[19]

Asylum seekers who are subject to a Dublin transfer from Poland are entitled to material reception conditions until the day they should leave Poland.[20] 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 transferees may request an additional assistance. The request has to be made in a specific term (30 days from the moment when the decision on transfer became final). After this time, the demand of the asylum seeker is left without consideration.[21] The assistance in case of the Dublin transfer covers travel costs, administrative payments for travel documents or visas and permits, cost of food and medical assistance during the travel.[22]

Some foreigners are not entitled to material reception conditions during the asylum procedure e.g. beneficiaries of subsidiary protection (applying for asylum again),[23] foreigners benefiting from humanitarian stay or “tolerated stay”, foreigners staying in Poland on the basis of 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.[24] Beneficiaries of subsidiary protection, foreigners staying in Poland on the basis of 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 humanitarian stay or tolerated stay are entitled to state benefits only in the form of shelter, food, necessary clothing and an allowance for specified purpose.[25]

 

Obstacles to accessing reception

 

There are some practical obstacles reported in accessing material reception conditions. Asylum seekers can apply to change assistance granted in the centre to assistance granted outside of the centre. If the Office for Foreigners agrees, in practice asylum seekers are entitled to stay in the centre until the end of the month and from the following month they are entitled to the financial allowance. Currently the payments of this allowance are made through the post services. It is a positive development, as asylum seekers are no longer obliged to personally receive payments every month in the centre or in the Office for Foreigners, which led to many practical problems. However, now the date for receiving money is unpredictable,[26] as it depends on how swift the Office for Foreigners sends the allowance and on the efficiency of the postal services. It means that foreigners have to leave the centre at the end of the month, but it is possible that they do not get any financial resources to rent an apartment or even buy food for some days or even weeks. Moreover, they are not entitled to any payments in advance, despite the fact that owners often require paying a first rent or a deposit before they rent an apartment. No support is offered in finding a suitable and affordable private accommodation, even though the asylum seekers most often do not know Polish enough to communicate with owners.[27] Furthermore, when a foreigner does not pick up the financial allowance from the post office (where it is held for 14 days), it is sent back to the Office for Foreigners. In that case, in the subsequent month he/she will receive double payment. As there is no possibility to receive omitted payment earlier, the asylum seeker may be left without financial resources for one month.[28]

Asylum seekers should register in the first reception centre within two days after applying for asylum, otherwise their procedure will be discontinued.[29] In practice some asylum seekers have problem to get there in time.[30] They are given only the address of the centre and should get there by themselves. A transport is organised by the SG, pursuant to law, only for pregnant women, single parents, elderly and disabled people. In justified cases, food for them should be also provided.[31] The Border Guard does not keep comprehensive data on the application of this provision in practice.[32] Other vulnerable asylum seekers cannot benefit from the organised transport, which is considered ‘a gap in asylum system’.[33]

This problem concerns also formerly detained asylum seekers. Those who have been detained are not entitled to support immediately after being released from the detention centre. 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 to cover the cost of transport to the reception centre.[34] Again, it should be organized by the SG in regard to released pregnant women, single parents, elderly and disabled people.[35] However, partial data that were made available show that the respective provision of the Law on Protection was not applied in 2019,[36] which may suggest that in practice it is interpreted too restrictively or overlooked. On the other hand, in the detention centre in Krosno Odrzańskie, according to the information provided by the SG, 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.   

Moreover, it was reported that asylum seekers in the process of appealing a decision were sometimes not granted social assistance, for the simple reason that the Office for Foreigners’ system had no record of their appeal.[37] The Supreme Audit Office’s report from 2019 confirms that some problems with the timely data input to prescribed registries still exceptionally occur.[38]

 


[1] Articles 70-74 Law on Protection.

[2] Article 70 Law on Protection.

[3] Article 40(1)(2) in conjunction with Article 40 (2)(1) Law on Protection. Information from the Office for Foreigners, 22 January 2020.

[4] Article 74(1)(1) Law on Protection.

[5] Article 80(1) Law on Protection.

[6]  Information obtained from the Office for Foreigners, 25 March 2014 and confirmed on 1 February 2017.

[7] Article 55(2) and (3) Law on Protection.

[8] Article 28(1) Law on Protection.

[9] Letter from the SG to the HFHR of 13 August 2018 and information from the Office for Foreigners, 22 January 2020.

[10] Information provided by SIP, 8 January 2020.

[11] Article 74(1)(2) Law on Protection.

[12] Ibid.

[13] Article 74(2)(2) Law on Protection.

[14] Article 299(6)(1)(b) Law on Foreigners.

[15] 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.

[16] This is the interpretation by the Legal Department of the Office for Foreigners. Information confirmed by the Office for Foreigners, 22 January 2020.

[17] For instance, in 2018 the court decided to suspend the enforcement of the negative asylum decision only once (see also Supreme Administrative Court, Decision No II OZ 1239/18, 20 December 2018) and refused such suspension in 86 cases (information provided by the Voivodeship Administrative Court in Warsaw, 11 January 2019). See also Magdalena Sadowska, ‘Odmowa wstrzymania wykonania decyzji w przedmiocie udzielenia ochrony międzynarodowej na czas rozpatrzenia skargi cudzoziemca przez sąd administracyjny’ in Stowarzyszenie Interwencji Prawnej (SIP), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r. (2019), available (in Polish) at: https://bit.ly/2vRN88S, 23-24. For more information on the previous courts’ practice in this area, see Maja Łysienia, ‘Prawo cudzoziemca ubiegającego się o udzielenie ochrony międzynarodowej do pobytu na terytorium Polski’ in D Pudzianowska (ed), Status cudzoziemca w Polsce wobec współczesnych wyzwań międzynarodowych (Wolters Kluwer SA, 2016).

[18] Information provided by the Voivodeship Administrative Court in Warsaw, 15 January 2020.

[19] Information provided by SIP, 8 January 2020.

[20] Article 74(3)(3) Law on Protection.

[21] Article 75a(2) in conjunction with Article 75(3) and (3a) Law on Protection.

[22] Article 75a(2) in conjunction with Article 75(2) Law on Protection.

[23] 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.

[24] Article 70(2) Law on Protection.

[25] Article 5(2) Law of 12 March 2004 on social assistance.

[26] Office for Foreigners, Harmonogram wypłat, available (in Polish) at: http://bit.ly/2ttgDt5.

[27] Lukasiewicz, K., ‘Exile to Poverty: Policies and Poverty Among Refugees in Poland’, International Migration Vol. 55 (6) 2017, 64, 66.

[28] Information from SIP, 8 January 2020.

[29] Article 40(1)(2) in conjunction with Article 40 (2)(1) Law on Protection. Information from the Office for Foreigners, 22 January 2020.

[30] See also 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, 57.

[31] Article 30(1)(8) Law on Protection. See also Article 40a of this act, where such transport is guaranteed for Dublin transferees. However, partial data from the detention centres show that it was applied in 2019 only in regard to 17 asylum seekers [information from the different branches of the SG (February-March 2020)].

[32] Information provided by the Border Guard, 11 January 2018 and 14 January 2019.

[33] 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.

[34] Jacek Białas, ‘Niezgodność zasad pomocy socjalnej zapewnianej osobom ubiegającym się o nadanie statusu uchodźcy z wyrokiem Trybunału Sprawiedliwości UE’, in HFHR, W poszukiwaniu ochrony. Wybrane problemy dotyczące realizacji praw cudzoziemców ubiegających się o nadanie statusu uchodźcy i objętych ochroną międzynarodową w latach 2012-2014. Obserwacje Programu Pomocy Prawnej dla Uchodźców i Migrantów Helsińskiej Fundacji Praw Człowieka, 2014, available (in Polish) at: http://bit.ly/1eiVxDF, 53.

[35] Article 89cb Law on Protection.

[36] Information from different branches of the SG (February-March 2020). However, it must be noted that the detention centre in Biała Podlaska is located next to the reception centre, so there is no need to organize transport for released asylum seekers.

[37] M. Łysienia, ‘Prawidłowe funkcjonowanie systemu POBYT jako gwarancja przestrzegania praw cudzoziemców’ in in HFHR, W poszukiwaniu ochrony. Wybrane problemy dotyczące realizacji praw cudzoziemców ubiegających się o nadanie statusu uchodźcy i objętych ochroną międzynarodową w latach 2012-2014. Obserwacje Programu Pomocy Prawnej dla Uchodźców i Migrantów Helsińskiej Fundacji Praw Człowieka, 2014, available (in Polish) at: http://bit.ly/1eiVxDF, 49.

[38]  Supreme Audit Office, Przygotowanie administracji publicznej do obsługi cudzoziemców. Informacja o wynikach kontroli (2019), available (in Polish) at: https://bit.ly/2OrVTwA, 64.

 

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