HFHR report: access to asylum procedure at Poland’s external borders. Current state of affairs and future challenges

A recently published report of the Helsinki Foundation for Human Rights, entitled Access to Asylum Procedure at the external borders of Poland. Current State of Affairs and Future Challenges, discusses access to the asylum procedure at the Eastern border of Poland.

For a number of years, the HFHR has been alerting about the Border Guard’s arbitrary refusals of the right to submit an application for international protection at Polish border crossing stations, in particular at Terespol and Medyka. Several judgements of Polish courts in cases concerning the refusal of entry and the ongoing legislative works on an amendment to asylum laws provided the impetus for the drafting of this report.

The report summarises the situation on the eastern border of Poland in the years 2015-2019. It presents an analysis of national, EU and international law on access to asylum, describes the case law of national courts and the European Court of Human Rights and sums up the findings of monitoring activities undertaken by non-governmental organizations, the Commissioner for Human Rights and the Ombudsman for Children. The report also outlines planned changes to asylum law. These changes include, among other things, new border procedures, lists of safe third countries and countries of origin and significant changes in the appeal procedure, which, according to the HFHR, will, in fact, legitimise forced returns of refugees arriving at Polish borders. A review of the proposed provisions and their rationale leads to the conclusion that the amendments’ purpose is twofold: first, they aim at preventing the entry to Poland of persons declaring their intention to apply for international protection and, second, they are designed to facilitate the process of expulsion of asylum seekers while failing to provide them with any basic procedural guarantees, such as the right to an effective remedy.

“The report also points to several documented cases in which Belarusian authorities have transferred or attempted to transfer a foreign national to their country of origin as a result of them not being admitted to asylum proceedings in Poland. One of the transferred foreign nationals was immediately taken to a police station in Chechnya and has never contacted his family again”, says Marta Górczyńska, HFHR’s lawyer and an author of the report. “The fate of the majority of foreign nationals who have been refused entry remains unknown, quite possibly some of them may be in serious danger. The practice of denying asylum-seekers access to the refugee procedure and sending them back to a country where they are not safe violates one of the fundamental principles of international law, i.e. the principle of non-refoulement”, she adds.

In all cases heard by the Supreme Administrative Court, the Border Guard’s decisions to refuse entry were overturned. SAC stressed that the border proceedings were flawed. The Border Guard should draw up reports documenting the actual course of a foreign national’s conversation with a Border Guard officer – which should be signed by both parties concerned – and provide foreigners with access to an attorney if one is present at the border. “Despite the favourable court rulings, we are not aware of any foreign nationals entering Poland as a result of his case being re-examined by the Border Guard. The nature of border procedures and the interpretation applied by courts prevent foreign nationals from taking advantage of the protection granted by courts. Besides, many foreigners left Brest before court proceedings are completed, which may take months or even years”, Marta Górczyńska adds.

In the opinion of the HFHR, the policy of Polish authorities and planned legislative changes reflect the pan-European tendency to close borders to refugees. This is also evidenced by an agreement that the EU has signed with Belarus. Everything seems to suggest that solutions similar to those already in place at the southern borders are being adopted also at the EU eastern border and that the practice of pushing asylum seekers away from the borders is becoming increasingly widespread in EU member states.

The report may be accessed here.