Poland has changed its domestic law to make it easier to push back migrants who are unable to return safely to their country of origin or Belarus. As we told the European Commission, this procedure violates several norms of EU law.
In response to the legislative changes produced by the situation on the Polish-Belarusian border, the Association of Legal Intervention filed a formal complaint to the European Commission against Poland for violating EU law in a bill passed by the Polish Sejm on 14 October 2021, amending the Foreign Citizens Act and other laws. The act law came into force on 26 October 2021, changing the Foreign Citizens Act and the Act on International Protection within the Territory of the Republic of Poland. The new law introduced a series of legal provisions that are in glaring contradiction of Poland’s international obligations, and especially with EU law, The European Human Rights Convention, and the Convention of Refugee Status. The Association presented its negative view of the proposed amendments during the social consultation stage of the legislative process, but these criticisms were not taken into account.
The Association aimed to draw the European Council’s attention – in the context of this violation of EU law– to two newly created legal institutions: issuance of an order to leave the territory of the Republic of Poland and a decision not to review an application for international protection.
Our Association is strongly convinced that the sole purpose of these new regulations is to create an interim legal justification for illegal push-backs and the Polish Border Guards’ practice of ignoring applications for international protection submitted at the Polish-Belarusian border. In reality, the new law allows the automatic expulsion of foreigners who have entered Poland in an unregulated manner, leaving any applications for international protection or asylum unread and without a review. At the same time, the law does not provide foreigners with any procedural guarantees of the due process allowing them to actively participate in legal proceedings which concern them. In addition, it ignores a fundamental principle of refugee law – non-refoulement.
The complaint specifies violations of the following EU laws and other related international legal norms:
- Article 18 – EU Charter of Fundamental Rights – specifically, Art. 33, para. 1 of The Convention of Refugee Status (the right to seek international protection, the non-refoulement principle);
- Article 19, para. 1 of the EU Charter of Fundamental Rights, Art. 4 of the Protocol No. 4 of the European Convention of Human Rights, (prohibition of collective expulsion of aliens);
- Article 47 – EU Charter of Fundamental Rights, Directive 2013/32/EU of the European Parliament and the Council, Art. 10, paras. 1, 3(a) and Article 31, para. 1 and para. 8(h) – (the right to an effective legal recourse, the right to a fair case review by an independent court, the right to legal help and assistance, the obligation to review an application for international protection by fundamental principles and court-trial legal guarantees, an obligation to an independent and individual review of an application for international protection, regardless of the time of submission to officials and the manner of entry).
- Directive 2008/115/EC of the European Parliament and the Council, Art. 4, para.4 and Art. 5 (the principle of non-refoulement and providing for the needs of people who require special treatment).
The Association’s complaint is now being analysed by the European Commission. If the claims outlined in the complaint are found to be justified, the Commission could commence an infringement procedure against Poland for violating EU law.