The draft amendment of the Act on Foreigners and the Act on Granting Them Protection violate EU asylum law principles – legal opinion of the HFHR

♦ The draft amendment to the Act on Foreigners and the Act on Granting them Protection in the Territory of Poland violate EU asylum law principles. The statutes may also be used to illegally expel from Polish territory foreigners who qualify for international protection – according to the HFHR legal analysis.

♦ The explanatory memorandum to the amendment claims that it is a response to the current migration situation on the Polish-Belarusian border and the solutions contained therein are to allow for more efficient conduct of proceedings regarding illegal border crossings and contribute to ensuring safety and protection of the public order.

What will change?

The decision regarding a border crossing as outlined in the draft amendment, in contravention of the law, is to be issued in the event of detention of a foreigner immediately after the unlawful crossing of the EU external border and is enforceable immediately. These provisions provide grounds for the expulsion of a foreigner from Poland, even if he or she applies for international protection. Meanwhile, according to EU asylum law, a foreigner seeking international protection may not be expelled from the territory of a Member State while his or her application is being examined. “The draft does not require review of whether the foreigner’s expulsion would lead to a human rights violation. For this reason, the provisions are inconsistent with EU and international law,” said Jacek Białas, HFHR lawyer.

Application without examination

The draft also introduces the possibility of leaving the application for international protection unexamined when it was submitted by a detained foreigner immediately after crossing the external border of the EU against the provisions of the law. This rule does not apply when the person crossing the border meets several requirements:

• comes from a territory where she/he was in danger,
• he/she presents reasons for the illegal border crossing and
• submits the application immediately after crossing.

This solution is also inconsistent with EU law, as such circumstances may at best constitute the basis for accelerated examination of the application, not an exception to the principle of leaving such unexamined. Additionally, determining whether a given third country was safe for a foreigner requires meeting specific conditions outlined by EU law.

An excuse to break the law

It seems that the solutions proposed in the draft may be used for illegal expulsion from the territory of Poland of foreigners who qualify for international protection. While the recent situation is certainly an element of the so-called “hybrid war” conducted by Belarussian authorities, it cannot be ignored that it primarily stems from the poor human rights situation in the foreigners’ countries of origin (including Afghanistan and Iraq).

Moreover, the Polish authorities’ claim that people fleeing war and persecution pose a threat to national security is illegal and groundless on its face.

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• HFHR’s comment on the bill