Criteria and restrictions to access reception conditions

Poland

Country Report: Criteria and restrictions to access reception conditions Last updated: 26/05/22

Author

Independent

In the proposal of the ‘Polish migration policy – diagnosis of the initial status’ published by the Ministry of Interior and Administration in January 2021, the obligation to provide material reception conditions to asylum seekers seems to be considered as a burden. The document mentions two challenges and risks in regard to reception conditions:

  • Costs of material reception conditions remain high despite smaller number of asylum applications;
  • The possible reduction of material reception conditions may result in negative reactions of asylum seekers and be instrumentally used in campaigns against the Polish migration policy.

The problems with reception conditions that asylum seekers face in Poland – that are described in this report – were not included to the diagnosis of the Ministry of Interior (except for the lack of a sufficient training for teachers working with foreign pupils).[1]

In summer 2021, a new document ‘Polish migration policy – directions of activities 2021-2022’ was consulted with civil society. It mentioned that proceedings concerning material reception conditions and medical assistance should be optimized. The proper standard of reception should be maintained and monitored, but the costs should be under control as well. Teachers working with foreign pupils should have access to a proper training.[2] The plans for 2021-2022 as regards reception expressed in that document were considered insufficient by NGOs. The preparation of the ‘Polish migration policy’ was subsequently suspended, reportedly in connection with the humanitarian crisis at the Polish-Belarusian border.[3]

 

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.[4] 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 applying for asylum, otherwise their procedure is discontinued (unless they declare another place of stay), as was the case in 59 cases in 2021.[5] Only medical assistance can be granted from the moment of claiming asylum (i.e. before registration in a first reception centre) in special situations, i.e. in case of threat to life and health.[6]

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 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.[7] In 2021 such later date was given in total in regard to 937 foreigners.[8] 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 the assistance by submitting a subsequent application before the entitlement to material reception conditions resulting from a previous asylum procedure elapses.[9]

Reception conditions are provided:[10]

  • (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.[11]

In principle, during the onward appeal procedure before the Voivodeship Administrative Court in Warsaw, asylum seekers are not entitled to material reception conditions.[12] 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.[13] Despite the fact that this practice has been applied by the Office for Foreigners for years, recently, the Voivodeship Administrative Court in Warsaw in a number of decisions indicated that there is no connection between the provision of material reception conditions and the decision on a suspension.[14] However, the Office for Foreigners still declares that it grants material reception conditions, if the court suspends the enforcement of the Refugee Board decision. In 2021, in 50 cases the Court decided to grant suspensive effect and in 37 refused to grant suspensive effect to a negative decision concerning international protection.[15] In practice, asylum seekers deal with the problem of the lack of material reception conditions during the court proceedings by submitting subsequent asylum applications.[16]

Asylum seekers who are subject to a Dublin transfer from Poland are entitled to material reception conditions until the day they should leave Poland.[17] 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 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.[18] The additional assistance covers travel costs, administrative payments for travel documents or visas and permits, cost of food and medical assistance during the travel.[19]

Some foreigners are not entitled to material reception conditions during the asylum procedure e.g. beneficiaries of subsidiary protection (applying for asylum again);[20] 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.[21] 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 a specified purpose.[22]

During the COVID-19 pandemic, the abovementioned rules regarding the duration of material reception conditions were changed so as to guarantee that the provision of social and medical assistance do not end during the epidemic state. It was prolonged by 30 days counted from a day when the epidemic state has been revoked.[23] That rule has been repealed in April 2022. Thus, the epidemic-related prolongation of the provision of the material reception conditions lasted until 15 May 2022.[24]

 

Obstacles to accessing reception

General obstacles

There are some practical obstacles reported in accessing material reception conditions.

Asylum seekers should register in the first reception centre within two days after applying for asylum, otherwise their procedure will be discontinued (unless they declare another place of stay).[25] In practice some asylum seekers have problem to get there in time.[26] 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.[27] Other vulnerable asylum seekers cannot benefit from the organised transport, which is considered ‘a gap in asylum system’.[28] Irrespectively, the Border Guard does not keep comprehensive data on the transports to reception centres that have been carried out in practice; thus, it is unknown to what extent it is in fact provided for pregnant women, single parents, elderly and disabled people.[29]

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. Again, it should be organised by the SG in regard to released pregnant women, single parents, elderly and disabled people.[30] However, partial data that were made available show that the respective provision of the Law on Protection was not applied in 2019 and applied in case of merely 7 asylum seekers in 2020, which may suggest that in practice it is interpreted too restrictively or overlooked. In 2021, it was applied in at least 70 cases (as reported by 5 detention centres, but mostly by Kętrzyn detention centre that declared assisting with transport of 64 foreigners).[31] While no case of such a transport was reported in regard to the Krosno Odrzańskie detention centre, it was the only guarded centre that declared assisting released foreigners financially (buying tickets to the reception centre) and cooperating with Caritas to provide them with a place to stay and food.[32]

Moreover, asylum seekers who change the form of material reception conditions from being accommodated in one of the reception centres to being granted the financial allowance and living in a private accommodation, must leave the reception centre at the end of one month, but should receive their first financial allowance up until 15th day of the next month. 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.[33]

Lastly, 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. The Supreme Audit Office’s report from 2019 confirmed that some problems with the timely data input to prescribed registries still exceptionally occurred.[34]

Specific obstacles (2020-2021)

In 2020, due to the COVID-19 pandemic, asylum seekers had problems with accessing asylum proceedings, thus also with obtaining material reception conditions.[35] The ‘declarations of intention to submit the asylum application’ were mostly accepted and registered by the Border Guards at that time. By law, the persons who ‘declared the intention to submit the asylum application’ are not covered by the medical and social assistance.[36] However, NGOs informed that, in practice, due to the pandemic, some asylum seekers who declared the intention to apply for asylum, but have not yet officially submitted the asylum application, were allowed to access material reception conditions.[37] In 2021, the continuing pandemic still impacted the Border Guard’s practice. When many foreigners wished to apply for international protection on a particular day, Border Guard preferred accepting declarations of intention to submit the asylum application in order to enable social distancing. In those circumstances, as the Border Guard stipulated, a declaration was taken only when an asylum seeker had a place of stay (e.g. in case of subsequent applications).[38] However, one must notice that much more declarations were registered in 2021 in comparison to 2020 (937 in 2021 and 298 in 2020).

The humanitarian crisis at the Polish-Belarusian border in 2021 left many prospective asylum seekers without access to material reception conditions. Foreigners that were stuck on that border or pushed back to Belarus were 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[39] was provided for months by several local and state authorities (including the Commissioner for Human Rights[40]), NGOs and private persons. However, its scope and effectiveness were greatly limited after the introduction of the emergency state.

 

 

 

[1] Ministry of Interior and Administration, ‘Polityka migracyjna Polski – diagnoza stanu wyjsciowego’, available (in Polish) at: http://bit.ly/377T5Ov, 37. See also EMN, ‘Polish migration policy – diagnosis of the initial status’, 20 January 2021, available at: http://bit.ly/3piyaOY.

[2] ‘Polityka migracyjna Polski – kierunki działań 2021-2022’, available in Polish at: https://bit.ly/34gKqeG.

[3] I. Kacprzak, G.Zawadka, ‘Prace nad strategią polityki migracyjnej Polski znów odłożone’, 26 October 2021, Rzeczpospolita, available in Polish at: https://bit.ly/3vGf7Fu.

[4] Article 70 Law on Protection.

[5] Article 40(1)(2) in conjunction with Article 40 (2)(1) Law on Protection. Information provided by the Office for Foreigners, 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).

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

[7] Article 28(1) Law on Protection.

[8] Information provided by the Office for Foreigners, 13 April 2022. In 2019, a later date was given in 165 cases (information from the Office for Foreigners, 22 January 2020) and in 2020 – in 298 cases (information provided by the Office for Foreigners, 26 January 2021).

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

[10] Article 74(1) Law on Protection; Article 299(6)(1)(b) Law on Foreigners.

[11] It is connected with the obligation to depart from Poland in 30-days after receiving final negative decision on asylum. During the COVID-19 pandemic, the 30-day time-limit was prolonged by law, thus also the provision of material reception conditions for a longer period than 30 days was possible. See also Article 15z8 COVID Law. 

[12] 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.

[13] This is the interpretation by the Legal Department of the Office for Foreigners. Information confirmed by the Office for Foreigners, 26 January 2022.

[14] M. Sadowska, ‘Wstrzymanie wykonania decyzji na czas postępowania sądowo-administracyjnego’ in SIP, Prawa cudzoziemców w Polsce w 2020 roku. Raport, 2021, available in Polish at: https://bit.ly/3sGmlXS, 27-28.

[15] Information provided by the Voivodship Administrative Court on 24 January 2022. However, with regard to some applications for granting suspending effect the outcome of the proceedings was not given.

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

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

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

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

[20] 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.

[21] Article 70(2) Law on Protection.

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

[23] Article 15z8 COVID Law.

[24] Office for Foreigners, ‘Zakończenie przedłużonego okresu udzielania pomocy socjalnej’, 22.04.2022, available in Polish: https://bit.ly/3KsCKov.

[25] Article 40(1)(2) in conjunction with Article 40 (2)(1) Law on Protection.

[26] 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.

[27] Article 30(1)(8) Law on Protection. See also Article 40a of this act, where such transport is guaranteed for Dublin transferees.

[28] 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.

[29] Information provided by the Border Guard every year since 2018.

[30] Article 89cb Law on Protection.

[31] Information from different branches of the SG.

[32] Information from Chief of the Nadodrzański Branch of Border Guard, 4 February 2022.

[33] Lukasiewicz, K., ‘Exile to Poverty: Policies and Poverty Among Refugees in Poland’, International Migration Vol. 55 (6) 2017, 64, 66. However, in October 2021, the Office for Foreigners announced a call for volunteers in reception centres that will assist asylum seekers with seeking private accommodation, see Office for Foreigners, ‘Wolontariat w ośrodkach dla cudzoziemców’, 25 October 2021, available in Polish at: https://bit.ly/3CfJjZd.

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

[35] M.K. Nowak, ‘Poprosila o postojowe, zerwano umowe. Uchodzcy dzis nie maja na chleg, jutro straca mieszkanie,” 30 May 2020, available (in Polish) at:http://bit.ly/3b1D79R.

[36] Article 70 (1) Law on Protection.

[37] Information provided by SIP, 12 April 2021.

[38] Information provided by the Border Guard, 4 March 2022.

[39] For more, see Health care section below.

[40] 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.

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