More and more foreigners are considered a threat to security and are expelled from Poland for this reason. The European Court of Human Rights will verify whether this is in line with the European Convention on Human Rights.
Between 2016 and 2021, as many as 2,696 decisions were issued on the obligation to return pursuant to Art. 302(1)(9) and Article 329a of the Act on Foreigners. Both of these provisions allow for the expulsion of a foreigner on suspicion of being a security risk. In both cases, such a foreigner (as well as his or her attorney) does not have access to the case file and the decision issued against him or her does not contain a full statement of reasons: it is limited to stating that the person is a threat, but does not explain why the authorities have reached this conclusion. Furthermore, the lodging of an appeal against such a decision, does not suspend its implementation. In such circumstances, the exercise of the right of defence is virtually impossible.
In July 2022, the European Court of Human Rights (ECHR) communicated to the Polish government the case of A.S. v. Poland, No. 37691/20, concerning a Tajik citizen suspected of terrorist or espionage activities in Poland. Consequently, he was obliged to return under Article 329a of the Act on Foreigners. His case file has been kept secret; the foreigner has also not been informed on what grounds he is suspected of being a terrorist or spy. The foreigner claims to be at risk of torture, inhuman or degrading treatment or punishment in the country of origin (i.e. a violation of Art. 3 of the European Convention on Human Rights (ECHR)). However, this circumstance was not investigated either by the Minister of the Interior and Administration or by the Provincial Administrative Court in Warsaw. The foreigner was protected from expulsion from Poland by an interim measure ordered by the ECHR. The case is being conducted by the Helsinki Foundation for Human Rights.
In November 2022, the ECHR granted the SIP permission to present its position on the A.S. case in Poland. According to Art. 36(2) ECHR, the President of the Court may, in the interests of justice, invite any interested person to submit written observations and to attend hearings.
In our intervention, we highlight the widespread recognition of foreigners as a threat to state security in Poland and the issuing of return obligation decisions on this basis. We also indicate all the violations of the procedural rights of foreigners in these proceedings: lack of access to the file, lack of reasons for the decision, lack of effective remedy, and failure to consider during the proceedings whether the foreigner in question is at risk of torture inhuman or degrading treatment or punishment upon return to his or her country of origin. We explain what the standpoint of the Polish courts is in these cases and why we believe that they insufficiently or inadequately take into consideration the jurisprudence of the ECHR (e.g. Muhammad and Muhammad v. Romania, no. 80982/12), but also of the Court of Justice of the EU (CJEU). We would like to recall that in September 2022, the CJEU issued its judgment in Case C-159/21, in which it made it clear that it is not a sufficient guarantee that the courts have access to classified files on foreigners deemed to be a risk if the foreigner himself does not have access to the files at all. Thus, the main argument in the opinion of Polish courts that the procedural rights of expelled foreigners suspected of terrorist and espionage activities are guaranteed in Poland was recently overturned by the CJEU.
A.S. v. Poland is not the only case involving foreigners deemed a threat to security in Poland communicated to the Polish government. At least three other cases are pending before the ECHR:
1. Marakchi v. Poland, no. 32462/15,
2. Şener v. Poland, no. 53371/18,
3. Alkhawlany v. Poland, no. 63012/19.
We eagerly await the ECHR’s rulings in all these cases. We hope that they will lead to an adequate guarantee of the procedural rights of foreigners considered as a threat in Poland.
You can read the content of our intervention below: