Polish court rules asylum ban at Belarus border justified and lawful

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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.

A Polish court has rejected a legal complaint by a Sudanese man who was denied the right to claim international protection after Poland recently suspended certain asylum rights. In the first reported ruling on the asylum ban, the court deemed the government’s actions to be justified and lawful.

The ruling was welcomed by the deputy interior minister responsible for migration policy, Maciej Duszczyk, who says it shows that “the suspension of the right to asylum is fully consistent with the constitution” and confirms that “it is us, and not the smugglers and hostile regimes, who decide who can enter our country”

In March, the Polish government introduced a ban on almost all asylum claims by people who irregularly enter the country over the border with Belarus, where the Belarusian authorities have engineered a migration crisis by encouraging and assisting tens of thousands of migrants to try to enter Poland.

In May, a Sudanese man entered Poland by that route and sought to claim international protection. However, the Polish border guard refused to accept his application under the new rules. He filed a complaint against that decision with the support of the Helsinki Foundation for Human Rights (HFHR).

This week, the provincial administrative court in Białystok rejected his claim and upheld the border guard’s decision. The court stressed that, while foreigners retain the right to seek protection, Poland has a constitutional duty to safeguard its borders, reports the Polish Press Agency (PAP).

Judge Barbara Romanczuk cited the “instrumentalisation of migration”, a legal concept introduced as part of the asylum ban and which refers to the use of migration by hostile countries to destabilise Poland.

Romanczuk found that the temporary asylum restrictions – which have been renewed three times by the government since March – are justified when such crossings pose “a serious and real threat” to national security.

The court also noted that the Sudanese man did not fall under the categories exempted from the asylum suspension, such as minors, pregnant women, or people needing special care.

The judge added that migrants can seek to lawfully enter Poland through other routes, but often choose those involving Belarus or Russia, thereby deciding to “cooperate with countries that use instrumentalisation, and often also with international criminal groups involved in migrant smuggling”.

“The behaviour of a foreigner who uses refugee law in a manner inconsistent with its purpose does not deserve protection,” said the judge, whose ruling can still be appealed. “Such behaviour should be considered a gross abuse of the law, unacceptable in a democratic state governed by the rule of law and in European legal culture.”

When the asylum suspension was first approved by parliament in February, the government argued that the measures are necessary because existing asylum rules were not designed to accommodate the deliberate instrumentalisation of migration by hostile states.

Since 2021, Belarus has been encouraging and helping migrants to cross the border in what Polish and EU authorities call a “hybrid attack”. In response, Poland has built physical and electronic barriers along the border and, last year, introduced a tougher migration strategy, including temporarily limiting the right to claim asylum.

However, human rights groups – including the HFHR – have declared the measures to violate not only international law but Poland’s own constitution. The foundation argues that the measures are unconstitutional because they allow the government to limit the right to asylum with a regulation, rather than through parliament.

The court, however, argued that the restrictions are limited in time and place, apply only to specific groups, and do not abolish the right to seek protection entirely and that Poland has a constitutional duty to protect its borders and citizens.

“The dynamic nature of this extraordinary situation, involving the creation of artificial migration pressure, implies an obligation on the part of state authorities to respond continuously and appropriately to this external security threat, including by equipping border services with the appropriate legal instruments,” said Romanczuk.

“This statement in no way questions the right of a foreigner to apply for international protection,” she added.

The Sudanese man’s case is one of three so far brought before the court in Białystok. The other concern citizens of Eritrea and Afghanist, reported Tok FM in August.

The broadcaster reported at the time that one of the men was in very poor health and had even been taken to a hospital in Poland. He had repeatedly attempted to apply for asylum, but he too had been prevented from doing so.

After exhausting all legal remedies in Poland, the foreigners and their lawyers will be able to appeal to the European Court of Human Rights in Strasbourg if they wish, reports Tok FM.

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)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.