A court has ruled that Poland’s border guard acted illegally when sending a group of Yemenis and Iraqis back over the border into Belarus, from where they had previously made an irregular crossing into Poland.
The ruling is the second to have found the use of so-called “pushbacks” by the Polish authorities to have been in violation of the law. Since last year, Poland has sent large numbers of people – mostly from the Middle East, Asia and Africa – back over the border into Belarus.
The government argues that such practices conform with national and international law, but this has been disputed by others, including Poland’s human rights commissioner, the UN, and Human Rights Watch, a US-based NGO. A number of other legal proceedings against pushbacks are currently pending.
The case in question was brought by the Association for Legal Intervention (SIP) – a Polish NGO that seeks to defend the human rights of refugees and migrants – on behalf of the group, which had crossed into Poland from Belarus in November last year, reports Gazeta Wyborcza.
Aleksandra Chrzanowska of SIP was among a group of volunteers who found the Iraqis and Yemenis wandering near the border. After providing them with humanitarian aid, she then discussed their situation with them.
It transpired that the group had been repeatedly sent back at the border by the Polish authorities for crossing in prohibited places. The most recent such decision had been made less than seven days earlier, meaning the deadline for appealing against it had not yet passed. SIP therefore issued that appeal.
Kolejny sąd uznał push-backi na Białoruś za nielegalne. Bo życie i wolność są tam zagrożone https://t.co/goUaJgMTWb
— Bartosz T. Wieliński 🇵🇱🇪🇺🇺🇦 (@Bart_Wielinski) May 30, 2022
In a ruling made on 27 April – but only now delivered to the group’s legal team – the provincial administrative court in Warsaw overturned the border guard’s decision to send them back to Belarus, pointing to a number of procedural shortcomings.
A key issue was the border guard failing to show that it had checked whether the group wanted to apply for international protection in Poland. There was no record at all of the group being interviewed or any notes from conversations with them.
The court also noted that foreigners in Belarus are often denied their rights and can even face actions from the authorities there that threaten their health and life.
Decisions to send border crossers back to Belarus should therefore take into account whether they would face persecution there, a principle in international law known as non-refoulement.
“The principle of non-refoulement takes precedence over other norms of international, EU and national law,” notes SIP, speaking to Gazeta Wyborcza. The court also pointed out that international and EU law requires that the lodging of an appeal should temporarily stop the expulsion of foreigners.
The ruling follows a similar one made in March – the first of its kind – that found the border guard had acted in violation of the law by sending three Afghans back to Belarus in August last year. Both that and the recent ruling are not yet legally binding and can be appealed.
"Sąd w Hajnówce przyznał rację prawnikom reprezentującym trzech Afgańczyków wywiezionych nocą przez straż graniczną do rezerwatu Puszczy Białowieskiej i uznał takie działanie funkcjonariuszy za nieprawidłowe, niezasadne, niezgodne z prawem."https://t.co/7yGKf1aNFU
— Piotr Czaban (@CzabanPiotr) March 29, 2022
Last year saw a surge in the number of crossings from Belarus into Poland, Lithuania and Latvia. At the peak of the crisis, Poland’s border guard recorded 17,500 attempted illegal crossings in October alone. Many more crossings went undetected, with the migrants usually then moving on to western Europe.
The Polish government pursued a tough response to the crisis. It introduced an exclusion zone at the border – still in place today – that bans non-residents, including the media and NGOs, from entering the area. It also stationed soldiers at the border and began building a wall there.
Meanwhile, the interior ministry issued a decree permitting the border guard to return people who have made illegal crossings into Poland. In a report this month, the human rights commissioner’s office noted that such pushbacks continue, despite being “incompatible with Polish law and international standards”.
The government, however, argues that its policies conform to the law and are necessary to protect national security. Polling has shown that the majority of the public support the government’s approach, which has also received backing from the EU and Germany.
Main image credit: Irek Dorozanski / DWOT (under CC-NC-ND 2.0)
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
