European Union Asylum Procedure Law Implementation - evaluation of P olish experience

1. European Union Asylum Procedure Law Implementation - evaluation of Polish experience The major problems of the migration law implementation process in Polish legal system

2. Harmonisation through implementation – aims of EU asylum policy • Harmonization of the asylum systems shall be based on positive understanding of individual human rights • Shall be constructed within broad discussion of many stakeholders about the meaning of human rights and standards of protection • Directives are binding according to their principles, not just particular regulations and for that reason their implementation doesn’t need to be straightforward • European directive is more of a notion of common ideas than just a legal act, so implementation shall serve to all principles that gave impulse to issue such regulation. • The common asylum policy shall serve the idea of establishment and systematical expansion of the area of freedom, safety and justice Unfortunately these principles and rules are not widely shared by the government of Poland The only principle followed by Polish authorities is legal obligation (not need) of implementation

3. Major regulations regarding the principles of the procedure of determination of the asylum seekers status It is in the very nature of minimum standards thatMember States have the power to introduce or maintainmore favourable provisions for third-country nationalsand stateless persons who ask for internationalprotectionfroma Member State. Commentary: acquiescence defines need and obligation • Problems with minimum standards: • Introduction of the minimum standards, contrary to its initial aim, caused a decrease of standards in all dimensions of asylum system: procedural, in qualification, and in reception. • higher than minimum standards in one of the Member States cause the feeling of automatic discrimination in those who are bellow. Though, each time the higher standard is introduced somewhere it shall become minimum for the others • The standards of the procedure are really minimal: causing the double standards problem (one for EU citizens, one for the other aliens)

4. The progress of implementation • There is no asylum nor migration policy in Poland • There is nolarge and strong migration population nor organised community in Poland • There is no public discussion about migration issues in Poland (the problem of migration, asylum, protection is not a headline problem) • The migration law institutions and regulations are inconsistent, incoherent and do not create a firm, flexible system (all regulations are introduced ad hoc) • For that reason qualification and procedure directive are not yet implemented.

5. Major problems with implementation • Lack of asylum policy, unimportance of the migration issues, imperceptibility of the migrants and their problems • The hostile statements of politicians slow down the harmonization progress • Problems with translations of directives and definitions of the asylum institutions • Lack of competences and knowledge of the governmental authorities dealing with asylum cases (no common trainings on legal issues, international standards and obligations, cultural differences, etc.) • No adequate financial resources cause delays in procedure, lack of interpreters, as well as other facilitations for asylum seekers in procedure

6. Polish asylum and migration regulations • Act on aliens of 13 June 2003 (Journal of Laws of 2003, No 128, it. 1175) • Act ongranting protection to aliens within the territory of the Republic of Poland (Journal of Laws of 2003, No 128, item 1176) • Act of 14 July 2006 on the terms and conditions of the entry into and the stay in the territory of the Republic of Poland of the citizens of the EU Member States and the members of their families (Journal of Laws No. 144, item 1043)

7. Basic principles of the fair procedure In the scope of the implementation process in Poland

8. Polish Law: Guidelines given by authority to whom application is submitted (a gap between theory and practice) A liberty of contact is not the same as obligation to inform Should procedure be conducted in Polish language? „Administrative procedure in which alien is present, should be conducted in language, that foreigner is familiar with on the level enabling him/her to present facts and circumstances, relevant to determine his legal status” -1999.08.17, Supreme Administrative Court verdict (V SA 89/99, LEX nr 49870) Right to information about the legal status • Directive: • Benefits and obligations within the refugee status determination process (obligatory) • The nature and results of decision, guidelines for effective remedy in understandable language(obligatory) • Information about organizations and groups (legal aid, social and medical help, UNHCR) (obligatory) • Information must be in writing (exceptionally provided orally) • Information provided in language understandable to alien

9. Polish Law: Personal freedom of aliens • Directive: • The general principle of freedom of movement for the asylum seekers (art. 17) • The principle of subsidiarity of freedom restriction • Gradation of intervention full liberty → order to stay in certain area → order to stay in certain place/address → detention • Procedure, concerning freedom of movement restriction must not be discriminatory, and have to be fair and justifiable(referring to reception directive) + immediate judicial review Art. 40. An alien applying for granting the refugee status shall not be detained unless: 1) he / she submits an application for granting the refugee status: a) during the border control, not having the right of entry on the territory of theRepublic of Poland, b) staying on the territory of the Republic of Poland illegally; 2) prior to submission of an application for granting the refugee status he / she: a) crossed or attempted to cross the border contrary to the laws, b) obtained the decision on obligation to leave the territory of the Republic ofPoland or the decision on expulsion; 3) the circumstances referred to in art. 88 sec. 1 of Act of 13 June 2003 of Aliens applyand this fact has occurred after submission of an application for granting the refugeestatus. Commentary: • General principle consumed by exceptions • Principle of subsidiary intervention is based on the trust of the state to individuals • Trust to individuals is predominant to interest of the state, public order or procedural promptness, unless individual forfeit this trust • In Poland deprivation of freedom is totally arbitrary • Projected amendments

10. What was implemented? • The access to RSD procedures – recognition of the application as refugee status motion • Provision of giving instructions on rights and obligations in the procedure • Right to stay on the territory of Poland till the procedure is concluded (excluding judicial review – no suppressive effect on deportation order) • Right to free of charge legal aid and counseling (only covering the costs of judicial review) • Higher standards of protection of unaccompanied minors • All obligations vested on aliens was fully implemented • All circumstances for manifestly unfounded applications had been introduced • No priority for persons with special needs was givenin the course of RSapplication consideration

11. Which standards are higher? • Access to the files and access to asylum seekers placed in detention areas • Detailed interview in all kinds of procedures – no cursory interviews • The high standard of unaccompanied minors treatment and custody • No arbitrary national list of safe third countries and safe countries of origin • No border or transit zones procedures • Two instances of administrative procedures (high legal standards – low administration practice) • Two instances of cost free judicial review

12. What has not been implemented? • Right to make own statements by all applicants in joint applications (covered by amendments project) • Art. 8.1: application presented late without just reasons is transferred to fast procedure (manifestly unfounded application) • Art. 8.2: no sufficient trainings causing lack of proper knowledge, no miscellaneous COI database was introduced • Justification of decisions are given in Polish language • Art. 12 was not introduced (resignation from full evidence process) – positive effect • Lack of competences of the interviewing authorities – no regulations concerning competence assessment process • No state financed legal aid at administrative level • No confidentiality of asylum seekers identity granted – obligation to inform Embassies about all aliens illegally present on the territory of Poland • No suspension effect in judicial review = no effective remedy

13. For more information on Polish asylum system:http://pomocprawna.home.pl/dosciagniecia/ICF/Raport.docFor HNLAC statement to EU Commission Green Paper on Future Common Asylum System:http://pomocprawna.org/HNLAGreenPaperReply2.doc