There are people who fled from Ukraine to Poland and then decided to return to Ukraine and then want to re-enter Poland. We are receiving more and more information that such people face difficulties in relation to re-entering Poland after their visit to Ukraine and we would like to present the opinion of SIP (Association for Legal Intervention) on this to you.
OPINION OF THE ASSOCIATION FOR LEGAL INTERVENTION (SIP)
ON DIFFICULTIES FACED BY UKRAINIAN PEOPLE UNDER TEMPORARY PROTECTION IN POLAND WHILE TRYING TO RE-ENTER POLAND AFTER VISITING UKRAINE
We are deeply concerned by information we have received on obstacles Ukrainian people face when trying to cross the Polish border. Such obstacles affect people who are under temporary protection in Poland in line with the special law on assistance to citizens of Ukraine in connection with armed conflict on the territory of that country of 12th March 2022 (Journal of Laws of 2022, item 583, as amended, hereinafter referred to as the Special Law). According to information we have received, the Polish Border Guard refuses to allow Ukrainian citizens who entered Poland after 24th February 2022, benefited from temporary protection, and then left Poland for less than 30 days to re-enter Poland. We would like to remind everyone of the regulations governing the legal and residence-related situation of Ukrainian citizens in Poland, including regulations governing the right to cross the Polish-Ukrainian border.
As per Article 2(1) of the Special Law, the stay of Ukrainian citizens who arrived in Poland after 24th February 2022 in connection with military activities in Ukraine is to be considered legal for 18 months starting from 24th February 2022, i.e. until 24th August 2023. During that time, such Ukrainian people have the right to leave Poland for periods of no more than 30 days – this directly follows from the provisions of Article 11(2) of the Special Law. It should be pointed out here that the Special Law enumerates legal bases under which Ukrainian people are not entitled to cross the border and that list does not include the right of legal stay following from Article 2(1) of the law in question. This is because, as per Article 42(3) and 42(10), residence cards and national visas which were extended by the Special Law do not give their holders the right to cross the border. The fact that the Special Law provides for restrictions for Ukrainian citizens related to crossing the Polish border coupled with an assumption that Polish legislative bodies act reasonably confirms, in SIP’s opinion, that Polish legislative bodies wished people under temporary protection following from the Special Law to be able to leave Poland and then re-enter it.
While analysing the issue of re-entering Poland in the context of conditions third-party citizens have to meet to enter the Schengen area, as defined in the Regulation (EU) 2016/399 of the European Parliament and of the Council of 9th March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code, consolidated text: Official Journal of the European Union L no. 77, p. 1), it should be pointed out that even if a person wishing to enter Poland does not have a valid travel document, a visa, or a residence document, it does not have to make it impossible for them to do so. As per Article 6(5)(c) of the Schengen Borders Code, third-party citizens who fail to meet one or more conditions for being allowed to enter the Schengen area may be allowed to enter the territory of a Member State for, among other considerations, humanitarian reasons. Consequently, if there are any doubts as to whether a given person should be allowed to enter Poland or stay in Poland, the Border Guard always can – and even should – allow them to enter Poland for humanitarian reasons. The continuing conflict in Ukraine doubtlessly meets the requirements for humanitarian circumstances discussed in the above-indicated legal document.
In this light, SIP firmly believes that Ukrainian people to whom temporary protection was extended on the basis of the Special Law have the right to leave and then re-enter Poland. If there is any doubt as to this, it should be resolved in a manner beneficial to the individual in question in line with principles of humanitarianism.
At the same time, we would like to point out that issues related to crossing the Polish border would be resolved if Polish authorities met their obligation to issue residence documents for the entire duration of temporary protection following from Article 8(1) of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (Official Journal of the European Union L no. 212, p. 12).