Proposed amendments to the asylum law in Poland: SIP comments on the controversial proposal

The Ministry of Internal Affairs and Administration returned to proceeding on draft changes to the act on granting protection to foreigners in Poland. There is, however, doubt as to whether or not some of those changes are consistent with the EU law  and/or human rights. Below we present to you those points proposed by the Ministry to which our reservations pertain. You can find our commentary in its entirety here. The legislative process itself can be followed here: RCL.

  1. The government would like to introduce border procedures. According to the Ministry, those would accelerate the processing of asylum applications filed at the Polish border. In practice, however, they could lead to serious infringements of migrants` fundamental rights.
    Our reservations regarding the proposal:

    • Foreigners are to be placed in detention centres within the territory of Poland. In a situation where there is no considerable inflow of foreigners, EU regulations stipulate that border procedures are to take place only at the border or in the transit zone. The proposal is inconsistent with EU laws and may result in excessive and unreasonable application of the border procedure.
    • No effective remedy against a joint asylum and return decision. It would not be possible for asylum seekers to appeal against a negative decision to a higher-level authority. They would only have 7 days for filing an appeal with a court in Polish. An important point is that such an appeal would not prevent them from being forcibly returned to their country of origin in the meantime. This is against constitutional rights to an appeal and against EU laws.
    • Extension of stay in a detention centre.After the border procedure, a failed asylum seeker may be held in detention for a further period of 90 days. This violates EU regulations which do not list such circumstances as grounds for depriving a foreigner of their liberty.
  2. The government proposes that the period for making an appeal against both an asylum decision and a return decision be shortened to 7 days.
    Our reservations regarding the proposal:

    • In practice, a change like that may virtually deprive foreigners of their right to make an effective appeal. Even fourteen days is often not enough time to find a lawyer, examine the documentation of a given case, discuss its details – often with the participation of a translator, and then draw up an appeal in Polish. Foreigners already are at a disadvantage compared to Poles as far as preparing an appeal in Polish is concerned and this amendment would reduce the time they had at their disposal by half.
  3. The government proposes that a legal provision under which migrants are allowed to stay in Poland until their appeal against a return decision has been reviewed by a court be repealed.
    Our reservations regarding the proposal:

    • Foreigners would lose their right to have their case reviewed by a court, said right having been confirmed with decisions of the Court of Justice of the European Union. The change would make it possible to forcibly return them to their country (or a safe country) before the relevant court has decided whether or not their expulsion would infringe their human rights.