In a judgment of March 9, 2023, ref. no. VIII SAB/Wa 6/23, the Provincial Administrative Court in Warsaw examined a case from a complaint by a client of our association against the inaction of the Commander-in-Chief of the Border Guard Post in Lesznowola, concerning the failure to accept and register a migrant’s application for international protection within the statutory deadline. Previously, the migrant had submitted a written declaration of intent to apply for such protection. After numerous attempts to contact the staff of the guarded centre, the application was accepted from the migrant after more than 3 weeks.

The Association joined the proceedings before the PAC in Warsaw.

The foreigner, and we as an association in our position in the case presented to the court, argued that Article 28(5) of the Act on Foreigners of June 13, 2003 on granting protection to foreigners within the territory of the Republic of Poland unequivocally indicates that the acceptance of an application for international protection and its registration is to be done immediately, but no later than within 3 working days from the date of acceptance of the declaration of the intention to file such an application. This deadline shall not be affected by possible organisational problems on the part of the commanding officer of the relevant Border Guard post and their consequences cannot be imposed on the migrant, for whom the consequences of the delay in accepting the application are highly acute.

Furthermore, we indicated the necessity to apply in the present case an interpretation based on the provisions of Directive 2013/32/EU of the European Parliament and of the Council of June 26, 2013 on common procedures for granting and withdrawing international protection, the primary objective of which is to ensure effective access to the procedure for examining migrant applications.

We also referred to the position of the Commander-in-Chief of the Border Guard Post in Lesznowola. According to it, the statutory maximum time limits for acceptance and registration of an application for protection do not apply to migrants in detention, as migrants do not appear in person at the office of the authority competent to accept an application for protection, as required pursuant Article 28(1) of the Act on Foreigners. In our opinion, the interpretation presented by the Commander-in-Chief would result in a legal loophole leading to the acknowledgement that migrants placed in guarded centres do not have any possibility to declare their willingness to submit an application for international protection, since they are not able to voluntarily leave the centre and appear in person at the otherwise understood premises of the Border Guard authority.

The Provincial Administrative Court upheld this argument and found that the Commander-in-Chief of the Border Guard Post in Lesznowola had been inactive in accepting the migrant’s application for international protection.

It indicated that “Under both national law and an interpretation based on Directive 2013/32/EU, in a situation where a migrant declares his or her willingness to submit an application for international protection, both the registration of that declaration, as well as the acceptance from the migrant on the application form for international protection and its registration, must be accomplished within 3 working days of the date on which the migrant submits that declaration. Undoubtedly, when analysing the provisions of the Act on Granting Protection to Foreigners on the Territory of the Republic of Poland and the Directive indicated, one must conclude that the deadline for registering the applicant’s application for international protection was exceeded”.

Why is this judgment important?

The relevance of this judgment for the current system of receiving applications for international protection from migrants placed in guarded centres should be underlined. It is common practice to postpone the formal acceptance of a form application from migrants for several days or even weeks, despite prior written or verbal declarations from migrants in this regard. The Border Guard, mistakenly considering that it is not bound by any statutory deadlines, leads to situations in which migrants have to spend additional days or weeks in detention unjustifiably due to the initiated deportation procedure, despite having previously declared their willingness to apply for international protection. Moreover, Polish courts recognise that the maximum 6-month detention period for migrants applying for international protection counts only from the moment they formally submit their application on the form (Article 89(5) of the Act on Granting Protection to Foreigners).

Additionally, when deciding on the placement or prolongation of a migrant’s stay in a guarded centre, courts very often refer to the fact of not submitting an application for international protection within the first possible deadline, but doing so after some time, already in a guarded centre. This, according to the court, justifies the claim that migrants are instrumentally using the refugee procedure to prevent the execution of their deportation. However, in several cases, the reason for the delayed application for protection is negligence by the Border Guard.

With the judgment in question, the PAC in Warsaw expressed its criticism of the current practice of the Border Guard in accepting applications for international protection from migrants in detention.

In the above case, the Association for Legal Intervention was represented by attorney apprentice Kornelia Trubilowicz.