Another intervention before the ECHR concerning the detention of migrants in Poland

In May 2023, the European Court of Human Rights (ECHR) reported the case of Z.H.R. and Others v. Poland concerning the detention of an Iraqi national and her two children in the Guarded Centre for Migrants in Lesznowola and later in Biała Podlaska. The family stayed in the centres for nine months, despite the mother’s deteriorating mental state. According to the application to the ECHR, the family claims that their rights under Art. 3 (prohibition of torture, inhuman or degrading treatment or punishment) and Art. 8 (right to respect for family life) of the European Convention on Human Rights (ECHR) have been violated.

Once again, our Association has decided to present to the ECHR its opinion on the rules and conditions of detention of migrants in Poland. 

Our intervention indicates, firstly, that the conditions of stay of migrants in guarded centres have deteriorated since 2021 and are not in line with standards under international law:

1. It is acceptable to limit the personal space of a migrant, including children, to only 2 m², while according to international standards a minimum of 4 m² is recommended and the necessary minimum is 3 m².
2. Due to their prison-like nature, guarded centres for migrants are not suitable places for children to stay. Depriving children of their freedom has a negative impact on their development and their psychological and physical state. They also do not have full access to education in these centres.
3. Foreigners detained in guarded centres have difficulties accessing medical care. Too few doctors work in these centres and access to specialist assistance outside the centre is hampered. 
4. Access to psychological assistance is particularly problematic. There are few psychologists working in the guarded centres, and external psychologists cooperating with NGOs are not admitted to migrants deprived of their liberty. The inadequacy of psychological support in guarded centres has recently been recognised by both the Ombudsman and the UN Special Rapporteur on the human rights of migrants.

Secondly, in the intervention, we highlight the practice of deprivation of liberty provisions for migrants, especially children and persons in poor mental health, in Poland:

1. In accordance with Polish law, children can be deprived of their liberty in guarded centres for migrants together with their parents. In practice, children are deprived of their liberty automatically, without considering their individual situation or needs. Contrary to the law, the best interests of the child are often not being considered and alternatives to detention are not realistically explored. Moreover, children are deprived of their liberty for several months, while it is only permissible to detain them for the shortest possible period. 
2. Under Polish law, a migrant cannot be placed in a guarded centre if this could cause a danger to their life or health. Nevertheless, migrants in a poor mental condition or suffering from mental illness are deprived of their liberty in these centres. In practice, the Border Guard ignores migrants’ declarations regarding their mental state, and the courts have no insight into what mental state a migrant is in when deciding whether to place or prolong their stay in a guarded centre for foreigners.

Our intervention can be read HERE.

Z.H.R. and Others v. Poland is another case concerning the detention of migrants in Poland that the Court will deal with. The ECHR has already ruled on this issue five times, each time finding a violation of Art. 5 or 8 ECHR (cases Bistieva and Others, No. 75157/14; Bilalova and Others, No. 23685/14, A.B. and Others, Nos. 15845/15 and 56300/15; Nikoghosyan and Others, No. 14743/17; R.M. and Others, No. 11247/18).