Circuit Court: the Armenian woman placement at a foreigner detention centre ‘groundless’

The Circuit Court in Przemyśl ordered the authorities to release an Armenian national from a foreigner detention centre. The woman, who has been staying in Poland for 18 years, was detained pending expulsion. The appeal against the detention order issued by the District Court in Przemyśl was submitted by lawyers of the Programme of Legal Assistance for Refugees and Migrants.

Out of the 18 years of her stay in Poland, for 16 years the Armenian has been living in the country legally. For personal reasons she was unable to timely extend her legal stay permit. She hoped to legalise her status within the framework of ‘the regularisation scheme’, or abolition. Three adult children of the foreigner stay in Poland, along with her other relatives. Before her detention, the Armenian had been living, together with her family, at a permanent residence.

The Circuit Court admitted the appeal, holding that in that particular case detention had not been necessary to conduct expulsion proceedings since the subject of such proceedings enjoyed adequate material and housing conditions. The Court also argued that there was no basis for assuming that the foreigner would be avoiding to abide by the expulsion order.

In the opinion of the Helsinki Foundation for Human Rights, detention of foreigners should be treated as a measure of last resort, and applied proportionately. It should not be used automatically, even if a foreigner stays in the country illegally. In each case, the decision to place a foreigner in a detention centre must be preceded by showing that this measure is necessary and there is no other way to ensure that the expulsion proceedings are effectively conducted.

According to the HFHR, there are no grounds for placing a foreigner in a detention centre if the facts of the case suggest that no pre-requisites for the expulsion decision have been met and where the circumstances of the case show that the foreigner satisfies the conditions for the grant of a tolerated stay permit and has the place of a permanent residence in Poland where he or she lives with his or her family.

In addition to arguing that the foreigner has a permanent address and represents no flight risk, the HFHR points out that courts ruling in foreigner detention cases should also consider whether or not the purpose of the detention (in this case, execution of the expulsion decision) is attainable.

For foreigners who have been staying in Poland for years, it is likely that their expulsion will infringe their right to private and family life. In such circumstances, the province governor is legally obliged to issue a decision refusing the expulsion and grant the foreigner a tolerated stay permit.