Katarzyna Przybyslawska of the Halina Niec Legal Aid Center, answers criticisms to asylum procedures in Poland made by the Belgian Refugee Council (see its report here). Her candid responses shows once again the urgency of independent legal aid providers and their need for more capacity to carry out their work efficiently and effectively.
The Halina Niec Legal Aid Center (HNLAC) is a non-profit non-governmental organisation established in 2002 in Kraków. HNLAC’s main objective is to protect human rights by providing free legal aid to persons at risk of social exclusion and discrimination, including the poor, victims of domestic violence, foreigners, asylum seekers and refugees. The HNLAC also monitors the adherence to standards of human rights, undertakes legal interventions and advocacy activities, and pursues research and educational projects. The centre also undertakes activities aimed at preventing and tackling human and child trafficking by organising social campaigns and offering legal aid to the victims. The HNLAC is UNHCR’s implementing partner in Poland.
The Belgian Refugee Council (BRC) report provides an assessment of the situation of asylum seekers in Poland, in particular those who were sent back to Poland as a country responsible for examining asylum application on the grounds of the Dublin II regulation. The report recognised both positive and negative aspects of Polish asylum system.
The first technical comment in response to the report is the erroneous use of the phrase: ‘closed reception centre/prison for asylum seekers’. There are no closed reception centres for asylum seekers in Poland and the establishment in Biala Podlaska is in fact a guarded center for foreigners … for the purpose of expulsion.
The Belgian Refugee Council praised the existence of non-EU based national protection status (tolerated stay permit) in the Polish legal system. The HNLAC wishes to stress the importance of this status with regard to safeguarding foreigners’ right to family life (art. 8 of the European Convention on Human Rights and Fundamental Freedoms). It should be noted however that given the ongoing preparation of a new act on aliens and act on granting protection to aliens, this protection instrument will soon undergo a change and foreigners seeking legalisation of stay in Poland solely due to their family ties will be eligible for a regular residence permit. The tolerated stay permit will be still applied in cases of risks to other basic human rights.
The BRC report indicates that the Belarusian Movement of Medical Workers provided information about returning … some asylum seekers of Chechen origin to Belarus. The HNLAC regularly monitors the border crossing with Belarus, where the majority of asylum applications are submitted as part of its Access Management and Support (AMAS) project and UNHCR implementing partner agreement. The monitoring includes examining individual complaints sent from the border crossing and regular missions to the border.
From the monitoring conducted, involving interviews with border guard officers, interviews with asylum seekers and participation in the preliminary interviews with foreigners trying to enter Poland via Terespol, it follows that many foreigners who were notified of a breach of the non-refoulement principle, resigned from submitting an application for asylum after being informed that given their status (former illegal stay in Poland, foreigner’s data found in the list of persons whose stay in Poland is undesirable or Schengen Information System etc.), they would have to await a decision on the granting of international protection in a detention center.
During the monitoring the HNLAC also found that at the Terespol border crossing, all foreigners of Russian and Georgian origin were subjected to the so-called preliminary interview, during which foreigners were questioned about their reasons for coming to Poland and leaving their country of origin. If during the interview it is established that the foreigner wishes to apply for refugee status, the application is subsequently submitted officially. The mere use of the word ‘asylum’ is not considered by the Border Guards at Terespol as proof enough of expressing intention of seeking international protection. According to the results of the monitoring, the decisive element is stating the reasons for fleeing the country and whether they are consistent with the refugee definition; on the other hand if a foreigner declares a fear of persecution or threat to his safety in his country of origin without using the words ‘asylum’ or ‘refugee’ the application for asylum is considered to be submitted.
The HNLAC also monitored border crossing with Ukraine in Medyka, where there were no preliminary interviews and all persons expressing the will of seeking asylum (including those who merely used the world ‘asylum’ or ‘refugee’) were accepted. Subsequently after submitting the application for asylum Border Guards established on the grounds of the content of the application whether there was a threat of abusing asylum procedures. If so, Border Guards applied to the court to place the foreigner in a detention center. The HNLAC, in its monitoring report submitted to UNHCR, indicated that extending practice implemented in Medyka to other border crossings would contribute to limiting situations where foreigners feel they are being deprived of the right to seek asylum.
With regard to the situation of foreigners who were sent back to Poland on the grounds of the Dublin II regulation, the Belgian Refugee Council indicated that there were no clear regulations as to when Dublin II returnees can be detained. According to the Polish Act on granting protection to aliens within the territory of the Republic of Poland, Border Guards can apply to the court to detain a foreigner on a general basis. The act on granting protection to aliens within the territory of the Republic of Poland stipulates that asylum seekers can be detained if it is necessary to establish their identity, to prevent from abuse of asylum procedures or if they are a threat to other people’s safety, health, life or property, to protect state’s security or public security and order.
It is also possible to detain a foreigner if they crossed the border illegally. The last premise concerns the majority of Dublin II returnees who often left the country after submitting applications for asylum in Poland. Given the optional character of the last detention premise, the number of Dublin II returnees detained differed substantially among particular Border Guards divisions. For example, in 2010: Nadwislanski Border Guards Division (BGD) – 15.2 % of returnees were detained; Sudecki BGD – 26%; Slaski BGD – 31.79 %; Karpacki BGD – 33.2 %; Nadodrzanski BDG – 64%; Morski BGD – 77%. The HNLAC examined the implementation of the Dublin II regulation in Poland in 2008, 2009 and 2010.
The HNLAC report (accessible on the HNLAC website, PDF), indicated major problems with Dublin transfers to and from Poland. Among them it is essential to mention the problems with providing adequate rooms for families with little children, lack of legal regulations allowing for providing returnees with meals during transfer procedure, the need to provide more interpreters in order to streamline the procedure, and foreigners providing inconsistent information on their state of health.
Another significant problem arising during the implementation of the Dublin II regulation is transferring foreigners to Poland without documents confirming their identity, or documents that are not certified by a notary. The problem concerns mostly children who were born on the territory of the transferring state and entails difficulties in establishing their identity and issuing travel documents by their country of origin consulates. Another problem is the lack of applicable EU regulations concerning a situation where due to the neglect of the obligation of the accepting country, the foreigner cannot be transferred. Under such circumstances the Dublin II regulation stipulates that the foreigner should be returned to the transferring state. However there is a problem of purchasing him/her a return ticket since the carrier is not obliged to take such a foreigner on board.
Another difficulty is connected with late hours of transfers. If the transfer takes place after 2 p.m. (later than set), the whole procedure finishes late in the evening. If adults are accompanied by children they often get tired and hungry. If foreigners are referred to the reception center in Debak, they may use special rooms where they can be accommodated 24/7 and receive food (food packages), even late at night. In case the Border Guard files the court to detain the foreigner and the court sitting cannot take place on the day of arrival families are separated: parents are placed in detention facilities, whereas children are referred to an orphanage or police child chamber.
The Belgian Refugee Council expressed concern over strict interpretation of the constitutive elements of the refugee definition which leads to protection gaps. From the HNLAC’s experience it follows that indeed possession of a passport by an asylum seeker is considered by asylum authority as a proof of the absence of a well-founded fear of persecution (page 18 of the report), internal flight alternative (page 21), and demand for requesting protection from the country of origin even if it is illusory and highly unlikely (page 29) are common arguments justifying issuing negative decisions in granting international protection.
The BRC report also indicates that the weight given to the subjective element sometimes leads to a refusal of protection even if the objective situation is as such that the person might actually be persecuted in case of return to their country of origin. The authors of the report state that a refugee status may be denied if the foreigner ‘is not frightened enough’, e.g. does not show enough fear during their interview. The HNLAC does not confirm such practice based on the decisions received. The assessment of the subjective element is used rather to verify the credibility of the asylum seeker and the negative decisions in Chechen cases are usually based on the finding that the fear of persecution is not well-founded and that there is not enough evidence to support the presumption of future persecution.
As far as difficulties with access to legal assistance are concerned (indicated on page 10 of the report), the HNLAC agrees that the burden of providing legal assistance in individual cases lies solely on NGOs, and the frequency of visits in refugee centers depends on funds available. The HNLAC currently implements the project that involves visits to refugee centres situated far from big cities enabling asylum seekers from such areas to be provided with legal assistance.
Given the fact that the majority of problems with the refugee status determination process indicated in the Belgian Refugee Council report arises from misinterpretation of substantive or procedural law by asylum authorities, the HNLAC believes that the key to improvement of the quality of asylum system in Poland lies in increasing the number of asylum decisions subjected to judicial control.
Every final decision in the subject of international protection can be challenged in administrative court within 30 days from receiving it. Polish law, however lacks clear regulations on the subject of the legal situation of foreigners awaiting courts’ rulings in asylum cases. Thus the HNLAC intends to undertake actions aimed at drawing public authorities’ and decision makers’ attention to the problem of this group of foreigners since it would improve the quality of both refugee status determination and decisions issued in individual cases.