Poland introduces law allowing suspension of asylum rights

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

President Andrzej Duda has signed into law a bill that will allow Poland’s government to suspend the right to claim asylum for people who enter the country as part of the “instrumentalisation of migration”, as has been happening on the border with Belarus.

The measure has been criticised as a violation of European and international law by the United Nations High Commissioner for Refugees (UNHCR) and Poland’s own human rights commissioner. But the bill was passed by parliament last month with overwhelming support from Polish MPs in both the ruling coalition and the opposition.

Now it has passed its final hurdle, with Duda today approving the measures. However, the president, who is aligned with the opposition, also took the opportunity to express doubts about whether Prime Minister Donald Tusk’s government genuinely wants to clamp down on illegal immigration.

Poland received a record number of asylum claims last year amid a renewed crisis at the Belarus border, where since 2021 tens of thousands of migrants and asylum seekers – mainly from the Middle East, Asia and Africa – have been trying to cross with the help and encouragement of the Belarusian authorities.

In response, Tusk proposed in September a tough new migration strategy, including allowing the temporary and partial suspension of the right to claim asylum. Those measures were subsequently approved by his government in December and passed by parliamentary in February.

The bill now signed by Duda enacts parts of Tusk’s strategy by amending the asylum law to introduce a new term into Poland’s legal lexicon: “instrumentalisation of migration.”

That is a phrase regularly used by Polish and other European authorities to describe the deliberate manner in which Belarus and Russia have used migrants and asylum seekers in an attempt to destabilise EU countries.

Under the new legislation, Poland’s interior ministry will be empowered to temporarily restrict the right to claim international protection if instrumentalisation of migration is taking place, if it “constitutes a serious and real threat to security”, and if the restriction of asylum rights is necessary to counter the threat.

The legislation also specifies that the government’s actions must “aim to limit the rights of foreigners intending to apply for international protection to the least possible extent”, notes news and analysis website OKO.press.

Moreover, certain categories of people must be allowed to claim asylum even if the measures are in place, including minors, pregnant women, people who require special healthcare, people deemed at “real risk of harm” if returned over the border, and citizens of the country that is carrying out the instrumentalisation.

A last-minute amendment added to the bill by parliament also allows an entire group that includes minors – such as a family – to submit an asylum claim. In the original draft, only the minors would have been allowed to do so.

The interior ministry’s regulation implementing the suspension of asylum rights must define the area in which it will apply and how long it will apply for (up to 60 days, after which it can only be renewed with the approval of parliament).

Tusk has argued that the measures are necessary because existing asylum rules were not designed to accommodate the deliberate instrumentalisation of migration by hostile states.

However, human rights groups have declared that the measures would violate not only international law but Poland’s own constitution. They also say they will cause real harm to vulnerable asylum seekers, who will face being pushed back over the border into Belarus.

Well over 100 people are believed to have died around the borders between Belarus and EU member states since the beginning of the crisis in 2021.

In an opinion submitted to Duda while he was deciding whether to sign the bill, Poland’s commissioner for human rights, Marcin Wiącek, wrote that the “legislation raises fundamental concerns regarding its compliance with the Constitution of the Republic of Poland, as well as international law”.

Last month, the UNHCR likewise warned that the government’s plans “would unfortunately result in legislation that is not in compliance with international law and European law”.

Duda – who, along with the conservative opposition Law and Justice (PiS) party with which he is aligned, has used tough rhetoric on preventing illegal immigration – has now dismissed such concerns and approved the bill.

However, at the same time, he addressed a letter to the prime minister in which he noted that, at the start of the migration crisis in 2021, when Tusk was in opposition, he and his allies were often critical of the tough measures that the then-PiS government took in response to the crisis.

“It is good that [you] have changed your position,” wrote Duda, but he added that it was vital that the government ensures “political declarations are followed by real and consistent actions”.

As such, he called on Tusk to clarify what actions his government was taking to oppose returns of asylum seekers and other migrants to Poland from Germany, to prevent negative effects from the EU’s Asylum and Migration Pact, and to obtain EU funds for securing the eastern border.

Tusk last week announced that Poland would stop complying with EU rules requiring it to take back asylum seekers from Germany. He has also declared that Poland will not comply with elements of the migration pact that require the relocation of asylum seekers.

However, PiS argues that Tusk – a former president of the European Council – is making such declarations for political reasons ahead of May’s presidential election to choose a successor to Duda, and that in practice he will not follow through.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: BBN (under CC BY-NC-ND 3.0 PL)

Daniel Tilles

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.