We intervene on the limited access of migrants to their files in the application procedure for international protection. Foreign nationals and migrants are not provided with access to studies on the situation in the countries of origin prepared by the Country of Origin Information Unit of the Office for Foreigners, which are used as the basis for administrative decisions. Therefore, they do not have the opportunity to comment on the evidence and materials collected in their case.
In cooperation with the Halina Nieć Legal Aid Centre, the Foundation Institute for State and Law, the Ocalenie Foundation and the Nomada Association, we sent a letter of representation on this issue to the Head of the Office for Foreigners, the contents of which – together with an analysis of the problem – can be read below.
Dear Sir or Madam,
On behalf of the social organisations acting on behalf of the rights of migrants and refugees in Poland, signed below, we would like to draw attention to the practice of the Office for Foreigners, which has been concerning us for some time, in terms of conducting administrative proceedings in cases of granting international protection. That involves not including in case files studies on the situation in the parties’ countries of origin prepared by the Country of Origin Information Unit of the Office for Foreigners (hereinafter: “COIU Studies”) on which administrative decisions are based.
According to our analyses, this is the situation in the majority of cases of migrants to whom we provide unpaid legal assistance, whether it is the migrant’s next or first application for international protection. Furthermore, the COIU Studies are also not completed at the stage of proceedings before the Refugee Council.
Therefore, migrants in the refugee procedure do not have access to all relevant evidence in their case and do not have the possibility to challenge the findings based on the COIU Studies indicated in the decision. This constitutes a violation of the principle of active participation of a party in the proceedings, as expressed in Article 10(1) and Article 81 of the Act of June 14, 1960 of the Code of Administrative Procedure (hereinafter: “the Code of Administrative Procedure”). It is the administrative body that is responsible for ensuring that the parties are actively involved at every stage of the proceedings and that they are provided with an opportunity to comment on the evidence and materials gathered before a decision is issued. Due to the lack of inclusion of the COIU Studies in the case file, i.e. their confidentiality actually, the implementation of this principle is only illusory. The parties do not have the opportunity to familiarise themselves with the full body of evidence, so naturally they cannot critically comment on it. Consequently, there is a violation of a fundamental principle of administrative procedure.
Furthermore, Article 73 of the Code of Administrative Procedure ensures that the parties to administrative proceedings have full access to the case file, which is broadly understood as “(…) an orderly collection of documents collected in connection with the conducted case, that is, in particular, letters submitted by a party, minutes, annotations, proofs of service of letters. (…) In the commented provision, therefore, reference is made to any documents that the authority conducting the proceedings has collected for the purpose of deciding the case in question. The case file should contain all documents relevant to the case and to the course of the proceedings.”
This entitlement is also expressed in Article 51(3) of the Constitution of the Republic of Poland of April 2, 1997, according to which everyone has the right of access to official documents and data collections concerning him or her. Any limitation of this legal right must be defined in a statutory provision. However, there is no regulation that would allow a party to an international protection proceeding to be deprived of access to the COIU Studies that are the basis for the decision in their case. Undoubtedly, this evidence is of vital importance for the outcome of the case, as it is mainly on it that the Head of the Office for Foreigners bases their determinations as to the security situation and other individualised risks in the party’s country of origin.
The Head of the Office for Foreigners while gathering evidence in the case, including the specified COIU Studies, shall therefore be obliged to place them in the case file and make them available for reading by a party to the proceedings if they constitute the basis for issuing a decision.
Furthermore, it should be noted that 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 (recast) explicitly indicates the obligation to ensure that applicants have access to “information from a variety of sources (…) on the general situation prevailing in the applicants’ countries of origin and, where necessary, in the countries they have transited” when the determining authority considered this information in deciding on their application (Art. 12(1)(d) in conjunction with Article 10(3)(b) of the Directive).
Simultaneously, we would like to highlight that, although in theory it is possible to obtain access to individual COIU Studies through the access to public information procedure, this operation goes beyond the scope of the international protection proceedings. No grounds exist for requiring a party to initiate another independent procedure for access to public information in order to exercise its entitlement to participate actively in the proceedings. Moreover, while professional attorneys providing unpaid legal assistance may have.
Chairperson of the Management Board
The statement we sent to the Office for Foreigners can be accessed HERE.