A draft Act on amending the Act on migrants and the Act on granting protection to migrants within the territory of the Republic of Poland appeared on the website of the Sejm. The draft Act blatantly violates Polish international obligations, including the Geneva Convention and the EU migration law. We have submitted, to the Chairman of the Parliamentary Committee considering the project, our comments to the project. You can read them (in Polish) here>>
- The issuing of a “Border Crossing Order Against the Law” to persons detained immediately after crossing the external Schenegen border not in accordance to the law. An element of the ‘ORDER’ is the migrant’s obligation to return from the territory of the Republic of Poland and the ban on re-entry to Poland and other Schengen States,
In the Association’s opinion the ‘ORDER’, which shapes the rights and obligations of an individual, is – irrespective of its name – an administrative decision. The decision, as an act obliging a migrant to leave the territory of Poland, is in fact an obligation to return within the meaning of Directive 2008/115/EC, and therefore it should at least conform to the EU standards. The adoption of the regulation in the form proposed by the government violates in particular:
- the principle of non-refoulement (Article 5 of the Directive),
- the right to voluntary return (Article 7 of the Directive),
- the possibility to suspend expulsion (Article 9 of the Directive),
- procedural guarantees, such as: written form of the decision stating the reasons in fact and in law, obligation to translate or interpret the main elements of the decision (Article 12 of the Directive)
- the right to an effective appeal (Article 13 of the Directive),
- procedural rules and guarantees specified in the Code of Administrative Procedure,
- the possibility for the Head of the Office of Foreigners’ Affairs to leave unprocessed an application for granting international protection submitted by a foreigner detained immediately after crossing an external border in violation of the law.
The regulation in the proposed form violates the obligations that Poland assumed by acceding to the Geneva Convention Relating to the Status of Refugees and contradicts EU legislation, in particular the provisions of Directive 2013/32/EU. The international law that binds us does not provide for the possibility of leaving an application for international protection unprocessed on the grounds of an irregular border crossing. Member States are obliged to ensure that decisions on international protection are taken after an appropriate examination of the case (Article 10.3 of Directive 2013/32/EU), and as a result of leaving an application unprocessed, a substantive examination of the case will not take place, which – in the case of persons who have crossed borders illegally in search of protection – makes the right to apply for refugee status a purely illusory right. The proposed regulation also unjustifiably differentiates the situation of persons in a similar legal situation, i.e. seeking protection from persecution, by granting the right to substantive examination only to those who have not violated the provisions governing entry to Poland.