Can an effective return policy go hand in hand with respecting migrants’ rights?

Guarded centre for foreigners in Biała Podlaska, Poland. Source: Tomasz Sieniow.

by: Anna Trylińska, Mateusz Krępa, Marta Pachocka, Tomasz Sieniow | University of Warsaw

The rights of foreigners have been drastically limited in Poland since 2021, along with the humanitarian crisis on the Polish-Belarusian border. Further, Poland has very effective enforcement of return decisions (77% for the period of 2022 and Q1-3 of 2023), according to data provided by Eurostat.

In the report on Poland’s return policy, developed as one of the deliverables of Working Package 2 under the Horizon Europe GAPs project covering the years 2015-2024, we analysed the legal, institutional, and infrastructure framework of the country’s return procedures, identifying multiple gaps that may lead to the exceptional performance of the Polish return policy. We observed that the 2008 EU Return Directive was improperly being implemented, and that Poland is not honouring some of the Court of Justice of the European Union (CJEU) judgements. We also reported on pushbacks as illegal practices at the Polish land borders.

As Poland effectively enforces return decisions, migrants’ rights should be protected. Moreover, the humanitarian crisis has had a significant impact on the relations between the Border Guard and civil society organisations working for foreigners, as well as on the inhabitants of border regions and Polish society. Gaps in the legal framework are also linked with improper implementation of the Return Directive. Foreigners have limited access to legal remedies, including appeals. Foreigners against whom return proceedings have been initiated are not entitled to free legal assistance. They may seek help from NGOs providing free assistance to foreigners, which depends on funding, but it is not certain whether their case can be dealt with in a comprehensive manner (i.e., full representation before the authorities) due to the large number of people in need of help.

The reform of the Act on Foreigners of 2023 has significantly changed return proceedings, accelerating the procedures and sharply limiting migrants’ rights (shortening the deadline for filing an appeal against the decision to oblige them to return, abolishing the suspensive effect of a complaint filed with the court). The most important change, however, is the transfer of the return obligation proceedings entirely to the Border Guard. For the procedures started before April 7, 2023, the appeal body continues to be the Head of the Office for Foreigners. As is evident from our legal practice (some of the co-authors are law practitioners on a daily basis), the time of examining appeals against return decisions in Poland was and still is (in cases started before April 2023) very long (even 2-3 years).

The inspectors (migration officers) applied the provisions regarding, among others, integration into Polish society or the special interest of a foreigner. There are no statistics on appeal proceedings conducted under the new rules. The Border Guard, the body that currently deals comprehensively with return proceedings, is not effectively controlled by external stakeholders or courts, which raises doubts as to the correctness of the decision control in appeal proceedings.

There is no particular support for vulnerable persons regulated by Polish law. Foreigners who are in the return procedure (with the exception of those being released from detention and directed to stay in the Fundacja Dialog facility) have neither access to medical assistance, psychologists, and interpreters nor the right to work. There are also no accommodation facilities provided, except the detention centres. Unaccompanied minor foreigners against whom return obligation proceedings have been initiated are not always properly represented. In practice, finding curators is difficult because there is a lack of qualified personnel who understand return and asylum-related procedures. Poland does not seem to promote effective monitoring of the return operations of forced removal due to the lack of funding for the institutions who carry out these duties (non-governmental organisations) and too late informing them about the planned returns.

In 2021-2022, the number of people staying in detention centres increased significantly due to the humanitarian crisis on the Polish-Belarusian border. The former government of the right-wing parties’ coalition led by the Law and Justice (pol. Prawo i Sprawiedliwość) established temporary detention centres where conditions were assessed by the Ombudsman (among others) and found to be not satisfying. Foreigners staying in overcrowded centres initiated numerous protests.

The policy of pushbacks on the border was put in effect almost 10 years ago. Since mid-2021, the number of foreigners trying to cross the Polish-Belarusian border (including irregular border crossings) has increased. The number of people trying to enter Poland (who were physically pushed by Belarusian border guards onto Polish territory) and later pushed back by the Polish border guards has increased. The Polish border guards refused to accept international protection requests from those people and pushed them back to the Belarusian side multiple times.

As a result of the 2023 parliamentary elections, a new government was formed by a coalition, which includes broad political forces from the Centre-Right to the Left, and is acting in a reserved manner when it comes to the rapid changes of the policy on the Polish-Belarusian border. The Prime Minister, Donald Tusk, repeatedly emphasised the need to ‘protect the border’. Currently, the government is working on a new national migration strategy, as well as the issue of pushbacks. Maciej Duszczyk, the vice-minister of the Interior, announced the launching of search-and-rescue teams of the Border Guard; however, he stated that he has no plans to stop pushbacks for now.

Our report also formulates policy recommendations based on our desk research and the expertise of some of us as practitioners dealing with legal support for foreigners in Poland with the goal to respect human rights. First of all, we suggest introducing legal changes such as eliminating detention of children in return procedures, restoring the 14-day period for filing an appeal against the return decision and amending the Act on Foreigners, under which it will not be possible to initiate return proceedings against a foreigner who has already submitted an application for a temporary residence permit and who has a family life in Poland. Secondly, we recommend enabling and providing funds for the Ombudsman to monitor the enforcement of the return decision as well as increasing the use of alternatives to detention in return procedures. Last but not least, our suggestions include increasing cooperation between the Border Guard and NGOs dealing with counteracting human trafficking, especially in the case of unaccompanied minors and establishing at least three open centres or allocating places in existing centres open to foreigners for people who have no place of residence and are waiting for a decision or return.

below: Guarded centre for foreigners in Biała Podlaska, Poland. Source: Tomasz Sieniow.