Foreigners cannot be pushed into Belarus if they would be in danger of torture, inhuman or otherwise unacceptable treatment there. Neither a migration crisis nor illegal border crossings exclude the application of this principle. It is common knowledge that, after being pushed out of Poland, foreigners are often unlawfully detained by Belarusian officers, and have to live in extreme conditions that violate human dignity and constitute a threat to life and health. Pushing them back to Belarus may violate the principle of non-refoulement.
By judgments of April 27, 2022, ref. no. IV SA/Wa 471/22, and April 26, 2022, ref. no. IV SA/Wa 420/22, the Provincial Administrative Court in Warsaw annulled the decisions of the Border Guard ordering two foreigners detained in the Polish-Belarusian border area to leave the territory of the Republic of Poland.
The men were detained by the Border Guard in November 2021 in connection with crossing the Polish-Belarusian border in an unauthorised place. The Commander in Chief of the Border Guard post ordered them to leave Poland (Article 303b(1) of the Act on Foreigners), and subsequently the foreigners were pushed out of the territory of Poland into Belarus.
The Provincial Administrative Court in Warsaw recalled that Poland is obliged to respect the principle of non-refoulement for all foreigners. Foreign nationals may thus not be returned to a country where their life or freedom would be threatened, in particular if in that country they could be exposed to torture or other inhuman or degrading treatment.
The principle of non-refoulement takes precedence over other norms of international law, EU law and national law concerning foreigners. In the case of a collision (conflict), it is the relationship between a higher norm and a subordinate norm. Correct application of this principle presupposes immediate, even temporary, protection of the foreigner at the border.
The Court also noted that international and EU legislation require that the filing of an appeal should suspend the actual expulsion. Deficiencies in this respect in the Polish system may violate fundamental rights of foreigners.
In the opinion of the Voivodship Administrative Court in Warsaw
the migratory crisis on the border between the Republic of Poland and Belarus cannot exclude the application of the principle of non-refoulement even to foreigners who illegally cross the borders of the Republic of Poland.
The Provincial Administrative Court in Warsaw noted that the foreigner had not been questioned nor had any notes been made of the conversation with the foreigner. In the court’s view, the findings related to the border crossing cannot be made solely on the basis of a short border crossing protocol drawn up by the Border Guard. It is not clear from the protocol why the foreigner crossed the Polish border illegally and whether he has no intention of applying for international protection in Poland.
The Province Administrative Court in Warsaw emphasised that in such cases the factual situation in the Polish-Belarusian borderland should also be thoroughly examined. In the court’s opinion
considering publicly available information on the impossibility of foreigners’ movement into the territory of Belarus and their detention by officers of the military forces of Belarus, it was necessary to conduct a thorough investigation in order to exclude the possibility that ordering them to leave the territory of the Republic of Poland and the immediate enforcement of the contested order violate the right to life and freedom from torture and other inhuman or degrading treatment of foreigners.
The court recalled that in such a case it does not matter whether the foreigner entered Belarus legally, as even those who entered Belarus legally may have limited opportunities to return inside Belarus, and thus may be forced to stay “in extreme conditions, violating human dignity, posing a threat to life and health.”
The court verdict is not final. The foreigners were represented by attorney Małgorzata Jaźwińska, who cooperates with the Border Guard. Humanitarian assistance at the border was provided to the foreigners by Aleksandra Chrzanowska, an integration counsellor of the Border Guard, together with volunteers acting within the framework of the Granica Group.