We have no doubt that the people who have been camping for several days on the Belarusian-Polish border should have the right to apply for refugee status in Poland. Below we explain why.
States have sovereign powers to regulate the entry of aliens. However, international law (which applies in Poland) also stipulates that measures taken for this purpose must not prevent them from applying for international protection:
- Article 33 of the Geneva Convention of 28 July 1951: “No Contracting State shall expel or return in any manner a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
- Article 14 of the Universal Declaration of Human Rights: “In the event of persecution, every person is entitled to seek and enjoy asylum in other countries”.
- Article 18 of the Charter of Fundamental Rights of the European Union: “The right to asylum shall be guaranteed with due respect for the principles of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).”
Central to the right to seek international protection is the principle of non-refoulement (Article 33 of the Geneva Convention of 28 July 1951), which prohibits States from any conduct leading to the return of a foreign national to a dangerous foreign territory, including refusal to admit persons declaring persecution at the border or not to admit them to their territory.
- case law of the European Court of Human Rights
e.g. judgment of 23 July 2020 in M.K. and Others v. Poland. The Court found that contrary to the claims of the Polish authorities, foreigners submitted applications for international protection at the Polish border and these applications were ignored by the Border Guard, as part of a common practice taking place at the Terespol border crossing point.
The right to apply for refugee status in Poland is a constitutional right, guaranteed by Article 56(2) of the Constitution of the Republic of Poland: “A foreigner who seeks protection from persecution in the Republic of Poland may be granted refugee status in accordance with international agreements binding the Republic of Poland.”
Any person presenting himself or herself at the border, declaring his or her intention to submit an application for international protection (declaration of intention to submit an application for international protection is provided for in Article 28 of the Act on granting protection to migrants), should be admitted to the territory of the Republic of Poland even if he or she does not possess documents entitling him or her to enter the territory of the Republic of Poland. The officers should then receive an appropriate application from such a person (it is the border guard who fills in the form for granting international protection, a migrant cannot submit an application filled in by him/her). The declaration of intention to submit an application may be e.g. indicating to the guards “I would like to apply for asylum in Poland”, “I cannot return to my country because I fear persecution”.
The problem with lack of visa/travel document
The conditions of entry into the territory of the Republic of Poland are defined by the Act on Foreigners. According to Article 23 of the same Act, an alien who crosses the border is required to have a valid travel document, a valid visa or other valid document entitling him to enter the territory of the Republic of Poland and to stay within that territory, if required, a permit to enter another country or a residence permit in another country, if such permits are required in the case of transit. Article 28(2)(2b) of the Act on Aliens states that the provision on refusal of entry shall not apply to a foreigner who has applied for international protection. Thus, a foreigner expressing his/her will to apply for international protection in Poland is exempt from the obligation to possess the entry-related documents.
Why is the Border Guard obliged to accept an application for refugee status?
It is the Border Guard’s obligation to accept an application for international protection even in the case of an attempted illegal crossing of the border by a migrant. This follows from the “non-refoulement” principle described above, which is a “hard” international law and the case law of the European Court of Human Rights. One should also take into account the context of the current situation at the border, i.e. the several years’ practice of the Polish Border Guard not accepting applications for international protection at official border crossings or even at Border Guard posts located outside the crossings on the territory of Poland (an example from August this year at the Border Guard post in Szudziałów) and the actions of the Belarusian services, which forces migrants to make repeated attempts to cross the state border in prohibited places.
 e.g. M.K. and Others v. Poland, application nos. 40503/17, 42902/17 and 43643/17; Hirsi and Others v. Italy (Application no. 27765/09)