Submission by the Office of the United Nations High Commissioner for Refugees in the case of R.A. and Others v. Poland (Application No. 42120/21) before the Grand Chamber of the European Court of Human Rights

4.1. UNHCR has repeatedly condemned the so-called ‘instrumentalization’ of refugees by States to achieve political ends. Forcing, encouraging or facilitating movements of refugees to other countries creates grave risks and compounds the suffering and trauma of persons on the move, as well as creating security and public order challenges for States receiving such movements. Nevertheless, ‘instrumentalization’ does not provide a basis for a general derogation from asylum, refugee protection and human rights norms.92 UNHCR submits that the systematic practice of denial of asylum-seekers’ access to the territory and to asylum procedures at the Polish-Belarusian border authorized by Polish law is at variance with both international and European law. First, the summary removal to Belarus of individuals potentially in need of international protection and the wholly inadequate material conditions near the border that have resulted in the deaths of dozens of people are at variance with Articles 2 and 3 ECHR, regardless of the declaration of a situation of emergency or ‘instrumentalization’. Given the absolute nature of the principle of non-refoulement, no action taken by third States affects Poland’s obligations under Article 2 and 3 ECHR. Second, restricting access to the territory and asylum procedures for all individuals crossing the border irregularly, in the absence of genuine and effective access to legal means of entry, is at variance with the prohibition of collective expulsion. In addition, due to their inextricable nexus to the principle of non-refoulement, States’ obligations under Article 4 Protocol No. 4 ECHR also remain unaltered in situations of so-called ‘instrumentalization’. Third, the lack of suspensive effect for those who receive written removal decisions, the absence of any decision for those immediately returned under the MoI Regulation, and significant restrictions on access to legal aid, contravene Article 13 ECHR in conjunction with Articles 3 ECHR and 4 of Protocol No. 4 ECHR. In UNHCR’s view, these conclusions remain valid also in situations of so-called ‘instrumentalization’.