The detention of refugees does not have a “repressive function, nor is its purpose to protect the borders of the Republic of Poland or the external borders of the European Union, or indeed to combat the problem of illegal immigration. (…)Thus, guarded centres are not intended to intern migrants for the duration of the examination of an application for international protection or, in the event of a negative examination of such an application, to ensure the effective enforcement of a possible decision to deport the migrant.”

The Supreme Court, in its judgment of June 20, 2023, II KK 148/22, acknowledged the cassation appeal filed on behalf of our Association’s clients against the judgment of the Court of Appeal in Warsaw of September 27, 2021, II AKa 310/20, regarding compensation for wrongful placement in a guarded centre for migrants.

The case concerned a single mother with a young child who had been held in guarded centres for migrants for approximately 16.5 months. They were initially detained in a guarded centre in connection with an ongoing refugee procedure and then with a deportation procedure (obligation to return).

Due to the prolonged detention of the child, as well as the faulty application of the detention regulations, the migrant applied for compensation for her stay in the guarded centre. The District Court and the Court of Appeal denied her request and did not award the requested compensation. The Supreme Court did not agree with this position and upheld most of the arguments we raised. The ECRE (European Council on Refugees and Exiles) joined the case before the Supreme Court, while the opinion of a friend of the court was filed by the scientific community and the IDC (International Detention Coalition).

The Supreme Court recalled that:

  1. Persons in the refugee procedure are entitled to seek redress for wrongful placement in a guarded centre,
  2. The migrant is only required to prove that there has been wrongful, not unquestionably wrongful, deprivation (similar to another case we are handling),
  3. Poland is liable on the basis of strict liability instead of fault for the wrongful detention of migrants,
  4. The Constitution protects migrants’ fundamental right to liberty, and any deprivation or restriction of liberty “must meet the constitutional standard derived from the principle of proportionality specified in Article 31(3) of the Polish Constitution. Failure to meet it is an unjust deprivation of liberty.”

Detention of refugees

The judgment indicates how the provisions authorising the detention of refugees should be applied, considering their particular vulnerability and the principle of humanity. It was emphasised that in this respect the “ultima ratio principle applies, which excludes any automatism resulting in the fact that the submission of an application for international protection is highly likely to lead to the deprivation of liberty of the applicant by detention in a guarded centre. Such a practice undermines the humanitarian sense of granting international protection to migrants, in particular refugees.” The Supreme Court recalled that the detention of refugees does not have a “repressive function, nor is its use intended to protect the borders of the Republic of Poland or the external borders of the European Union, much less to combat the phenomenon of illegal immigration.”

The Supreme Court reminded that every condition for detention must be proven and that courts cannot rely solely “on presumptions”. In order for a detention to be lawful, it must be demonstrated that it was necessary in the particular case. In the judgment in question, the Supreme Court emphasised that “if the detention in a guarded centre was justified by the necessity to perform certain activities with the migrant’s participation, but these activities were not implemented or the actual period of detention was not necessary for them to be carried out, there are grounds for considering that the application of this measure was unjust in part or in whole. The courts should thus examine whether and what activities involving migrants were carried out and planned in the case, and what information was to be collected with their participation. If these issues are not established, this obviously excludes “the possibility of assessing the fulfilment of the other prerequisites and thus the justifiability of the detention of the applicants.”

The Supreme Court also considered the legitimacy of considering that refugees are “likely to flee”. It observed that “the very term raises fundamental doubts from the perspective of the constitutional status of an asylum seeker. […] such a migrant is lawfully residing on the territory of Poland, regardless of how he found himself on that territory, and the term ‘fleeing’ suggests that he or she is either being prosecuted by someone because of the illegal nature of staying in a particular place or is leaving the place which has been designated as his or her place of residence. None of these conditions are met for the said applicants for international protection.”

Detention of children

The Supreme Court also referred to the obligation to assess the best interests of the child in the context of detention on migratory grounds and recalled that the degree of protection of a child’s constitutional rights “cannot be differentiated according to the nationality” of the child. Although the detention courts referred to medical information and documents proving that there were no contraindications to further detention and to the provision of medical care in a detention centre (these are typical documents in cases involving the detention of children on migration grounds), the Supreme Court found this insufficient. It specified that:

  • There is no evidence to prove that this medical information and documents “related to the direct examination of the minor applicant herself prior to the subsequent decisions to extend detention”,
  • The courts failed to establish “what was the evidentiary basis for each time the courts extended detention to find that there was no risk to the minor’s well-being”, an obligation that arises from ECtHR case law (inter alia, judgment of July 22, 2021, M.D. and A.D. v. France, 57035/18),
  • “as a general rule, the deprivation of liberty of a mother with a young child constitutes a threat to the normal development of that child […].Only an individualised assessment, considering the psychophysical and developmental state of the minor, can justify a decision in the form of detention in a guarded centre.”
  • the welfare of the child cannot be reduced solely to health issues”,
  • the Court of Appeal should diligently address the standards for child detention arising from ECtHR case law, “in particular concerning the duration of detention of minors (…), the importance of protracted administrative proceedings by national authorities (…) and the primacy of the interests of the child”.

Detention in deportation proceedings (on commitment to return)

In the judgment in question, the Supreme Court also referred to the application of the detention premise related to the delay in obtaining documents from third countries that prevent the execution of a deportation decision (Art. 40.3(3a) item 2 of the Act on Foreigners). The Supreme Court indicated that when determining whether there has been a delay, this should be assessed in the context of the time limit within which the state concerned is obliged to respond to the request of the Polish authorities. This usually arises from readmission agreements. It is therefore irrelevant whether these documents were already in the possession of the Polish authorities at the time of the detention court’s ruling. The only important thing is whether or not the deadlines indicated in the international agreements had been exceeded by third countries.

The Supreme Court also indicated how the provisions indicating the maximum period of detention during deportation proceedings (Article 403(3) and (3a) of the Act on Foreigners) should be correctly applied. National and EU legislation specifies that, as a general rule, persons awaiting return should be placed in a guarded centre for a maximum of six months. Prolonged detention is only allowed in 2 enumerated cases (Article 403(3a) of the Act on Foreigners). In the present case, the national courts considered it decisive that the detention court should rule before the expiry of the 6-month maximum period. In such circumstances, it may order detention for more than 6 months on the usual grounds and not those under Article 403(3a) of the Act on Foreigners. The Supreme Court disagreed with this standpoint. It indicated that “If (…) a migrant is detained in a guarded centre on the basis of a court decision issued under the ordinary grounds of Article 407(1-2a) of the Act on Foreigners, in the event that the period exceeds 6 months (e.g. as a result of a decision to extend the detention in a guarded centre before the expiry of 6 months of the migrant’s stay in the centre, but for a period exceeding those 6 months), then, without amending the legal grounds for that detention, the period of the migrant’s detention in the guarded centre beyond those 6 months becomes unjustified.”

The case has been remitted to the Court of Appeal in Warsaw for retrial.

The migrants were represented before the common courts and the Supreme Court by Małgorzata Jaźwinska, an advocate cooperating with our Association.

The judgment can be viewed here.