Last Updated: Thursday, 24 April 2014, 11:39 GMT

Background Information on the Situation in the Republic of Poland in the Context of the Return of Asylum Seekers

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 1 December 1999
Cite as UN High Commissioner for Refugees (UNHCR), Background Information on the Situation in the Republic of Poland in the Context of the Return of Asylum Seekers, 1 December 1999, available at: http://www.refworld.org/docid/3ae6b33b18.html [accessed 25 April 2014]

General considerations

1. In the interest of avoiding refoulement and orbit situations and promoting international cooperation for the protection of refugees, the return of applicants who have found or could have found protection in another country should take place in accordance with arrangements agreed among the States concerned, to determine which State is responsible for considering an application for asylum and for granting the protection required. Agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner (readmission agreements) should not be used for this purpose unless they explicitly provide for the protection of refugees. If nevertheless applied to asylum seekers, the application of such agreements should have due regard for their special situation.

2. UNHCR further considers that, in the absence of any formal agreement to this effect, the return of an asylum seeker or a refugee to a country where he/she found or could have sought protection should not take place unless certain conditions relating to the person's safety and treatment in that country are met. The Office has identified some factors that should be considered when determining whether the return of an asylum seeker or a refugee to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are: ratification of and, more importantly, compliance with international human rights and refugee instruments; observance of basic recognized human rights standards for the treatment of asylum seekers and refugees, in particular of the principle of non-refoulement; readiness to readmit returned asylum seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection.

International legal framework

3. Poland acceded to the 1951 Geneva Convention and the 1967 New York Protocol relating to the Status of Refugees on 27 September 1991. Poland is also a signatory to the International Covenant on Civil and Political Rights (3 March 1977), the International Covenant on Economic, Social and Cultural Rights (3 March 1977), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (19 January 1993). Under the Polish Constitution, international treaties concerning human rights and fundamental freedoms, once ratified, are directly applicable and take precedence over national legislation in case of conflict.

4. The Polish Government has signed readmission agreements with the following countries: Belgium, Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Hungary, Italy, Luxembourg, Moldova, The Netherlands, Romania, Slovakia, Slovenia, Sweden and Ukraine. These agreements generally apply to the return of nationals of the contracting State or third country nationals who enter a contracting State illegally. The agreements do not specifically take into account the special situation of asylum seekers, since they do not ensure their access to the refugee status determination procedure. In respect to Article 3 of the readmission agreement that was signed between Poland and Lithuania on 13 July 1998, however, it specifically stipulates that persons "who are subject to refugee status application procedures on the territory of the State of the Requesting Party" will fall within the scope of persons to be returned under the readmission agreement. UNHCR is seriously concerned that the clause will facilitate the automatic return of asylum seekers to Lithuania without due consideration for the safety of the asylum seeker from refoulement, or the possibility of his/her entering the status determination procedures in Lithuania.

Refugee-related national legislation

5. National legislation relating to refugees is primarily contained in the Aliens Law of 25 June 1997, which came into effect on 27 December 1997. The new law introduces a series of regulations and ordinances which aims to regulate the refugee status determination procedure in Poland. The social rights of refugees are also provided in a number of legal instruments both on an executive and statutory level. The Aliens Law states that an alien can be granted refugee status as defined in the 1951 Geneva Convention and the 1967 New York Protocol unless he/she has acquired refugee status in another State which secures factual protection to him/her. Decisions granting refugee status are issued by the Minister of Interior and Administration. In the absence of specific legal provisions, the refugee status determination procedure is regulated by the Polish Administrative Procedure Code. During the drafting stage of the Aliens Law, UNHCR submitted extensive comments and on several occasions was invited to present its opinions to the Parliamentary bodies responsible for its review. The Aliens Law incorporates many of the comments raised by UNHCR.

Access to asylum procedure

6. There is a time limit for the submission of an application for refugee status. Applications at the border must be lodged "while crossing the border". Those asylum seekers who fail to do so due to a justified fear of life or health should lodge their applications within fourteen days after crossing the national border. Sur place refugees should lodge their applications within fourteen days from the time he/she receives information on the existence in his/her country of origin of circumstances justifying granting him/her refugee status. Asylum seekers who entered the country illegally are obliged to lodge their applicationsimmediately after illegal entry. Since the enactment of the Aliens Law, UNHCR has observed that the Ministry of Interior has occasionally applied a literal interpretation of the terms "immediately" and "justified fear of life or health", thereby excluding some asylum seekers from entering the refugee status determination procedures or having entered the procedure their cases are rejected on procedural grounds and are not examined on its merits.

7. Asylum seekers are able to appeal the decision of the Minister of Interior. The reexamination of the case, however, is currently conducted by the same body that made the initial decision. As of January 1999, an independent appellate agency, the Council for Refugees, will preside over decisions rendered by the Minister of Interior. An appeal to the Supreme Administrative Court, whose jurisdiction is limited to examination of the conformity with the law of an administrative act, may be lodged after a second negative decision.

8. The Aliens Law includes a provision for accelerated procedures to deal with applications made by asylum seekers that are manifestly unfounded. Under the law, a manifestly unfounded applications filed by aliens arriving from a safe third country or a safe country of origin must be rejected. As of August 1998, the list of safe third countries and safe countries of origin has not been issued. Thus, accelerated procedures are not applied at present.

9. Data protection guarantees vis-à-vis an asylum seeker and his/her country of origin is stipulated in the Aliens Law, the Personal Data Protection Act of 29 August 1997, and two ordinances of the Ministry of Interior. Nevertheless, UNHCR is aware of incidents where the asylum seekers' embassies were notified after the individuals applied for refugee status in Poland. In two cases known to UNHCR, embassy personnel were given access to asylum seekers in contradiction with their wishes. UNHCR is similarly concerned about a provision in the Code of Criminal Procedure which requires the courts to contact the embassy of aliens placed under temporary arrest.

10. UNHCR is allowed on a case-by-case basis to monitor the refugee status determination procedure. UNHCR representatives can participate in interviews as observers only upon making an advance request referring to a particular case. UNHCR does not have direct access to information contained in the files of asylum seekers maintained by the Refugee Department of the Ministry of Interior. Upon request and with the prior consent of a refugee or asylum seeker, the Refugee Department provides UNHCR with information relating to individual cases, in particular decisions and rulings issued during the procedure. As of July 1998, the Refugee Department has requested UNHCR to provide position papers concerning individual cases of particular concern.

Entry into procedure through readmission agreements

11. Persons who apply for refugee status in Poland after their return from a third country on the basis of a readmission agreement,have the right to enter the status determination procedure, provided they apply for refugee status at the border. However, these agreements do not require a formal notification to the Polish authorities that a returned person has sought protection in another country and that the asylum application was not examined on its merits. Returned asylum seekers from Germany are informed of the possibility of applying for asylum in Poland, as stipulated in a special agreement between the Ministries of Interior of both countries. In addition, an individual expressing an interest in applying for refugee status shall receive from the Polish authorities a leaflet with basic information on the procedure, produced in many languages by the Refugee Department.

12. Returned persons, including asylum seekers, may be arrested for illegal border crossing or lack of valid travel documents and notified of an expulsion order. A detention of 90 days may be ordered by a Court, pending the execution of an expulsion order. An application for refugee status before or after detention has a suspensive effect on the execution of an expulsion order. UNHCR was recently made aware of some asylum seekers who have been issued decisions on deportation while still awaiting first or second instance decisions on their refugee applications. While such asylum seekers cannot be deported while their refugee applications are still pending, they are nonetheless forced to live under detention for a 90 day period.

13. Many asylum seekers returned from western countries, and particularly from Germany through the application of readmission agreements, do not necessarily wish to apply for asylum in Poland. Often they attempt to lodge an application for refugee status only when they are confronted with the possibility of deportation.

Assistance during and after asylum procedure

14. Asylum seekers are usually granted in accordance with executive ordinances, the possibility to stay in reception centers for asylum seekers, where they receive accommodation, food and basic medical care. As of August 1998 some 328 asylum seekers were receiving assistance in 5 reception centers. The assistance granted by the Government ceases after the first negative decision. At the discretion of the authorities in very exceptional circumstances, individuals who receive a first negative decision may be allowed to remain in a reception center. Applicants whose cases are pending a second review or a decision of the Supreme Administrative Court, which may take one or two years, often rely on UNHCR's financial support for food, accommodation and legal assistance.

15. From March 1996 to December 1997, the Ministry of Interior funded and implemented an assistance program, which granted financial assistance to newly recognized refugees. Limited complementary assistance toward integration of refugees was provided by Polish NGOs with UNHCR funding. Responsibility for the care and maintenance of recognized refugees was recently transferred to the Ministry of Labour and Social Policy. The Ministry of Labour, however, has not yet started providing assistance to recognized refugees through local Government offices. Through most of 1998, newly recognized refugees relied solely on material assistance provided by UNHCR for their livelihood. Recently, the social assistance system has begun to provide moderate social benefits to newly recognized refugees. UNHCR is working closely with the Ministry of Labour to help initiate integration-related programs and strategies.

Conclusion

16. In view of the above considerations, UNHCR would recommend the following in respect to the return of asylum seekers to Poland on the basis of their transit/stay there: those Governments implementing returns whether under a readmission agreement or other bilateral arrangements, should seek and receive assurances that asylum seekers whose claims have not yet been examined will have access to the refugee status determination procedure in Poland, and if they came to Poland from Lithuania, they are not returned to Lithuania without the assurance that they are granted access to the asylum procedure there. UNHCR would also recommend that Governments implementing returns should seek and receive formal assurances that returned asylum seekers will not be detained unjustifiably. In addition to informing the Polish authorities that the concerned persons are asylum seekers whose claim has not been heard, returning countries should inform the claimants of their right to apply for refugee status in Poland, and of their obligation to express their intention at the time of entry into Poland.

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