Centrum Pomocy Prawnej im. Haliny Nieć » HNLAC's Position regarding the announcement to suspend the right to asylum in Poland

Position of the Halina Nieć Legal Aid Center regarding the Announcement to Suspend the Right to Asylum in Poland

The Halina Nieć Legal Aid Center expresses deep concern over Prime Minister Tusk's announcement on October 12, 2024, regarding the "temporary territorial suspension of the right to asylum."

Poland has the right to protect its borders, but these actions must comply with international and EU law and must not violate human rights.

The right to asylum is a fundamental human right, protected by international, EU, and domestic law. Suspending this right violates the principle of non-refoulement and a number of binding legal provisions in Poland.

As a public benefit organization providing free legal assistance to refugees arriving in Poland for 22 years, we are greatly troubled by Prime Minister Tusk’s announcement on October 12, 2024, signaling the “temporary, territorial suspension of the right to asylum” as part of the new Polish migration strategy.

The document containing this strategy, the full details of which are still unknown, is titled “Regain Control, Ensure Security” and will not only set the direction of Poland’s future migration policy but also shape national law. Therefore, its provisions have fundamental significance – both for state security and the protection of human rights – and should result from thorough legal analysis and expert and social consultations. For these reasons, we would like to respond to the direction of the future migration policy outlined by the Prime Minister.

There is no doubt that Poland has the sovereign right to protect its borders and to control the entry and residence of foreigners on its territory. However, the exercise of this control and the protection of security cannot be conducted in a manner that is inconsistent with Poland's binding international and EU legal obligations, particularly in undermining fundamental human rights guarantees, which are the foundation of a democratic state governed by the rule of law.

As an organization committed to assisting individuals seeking international protection in Poland and upholding the humanitarian ideal, we emphasize that the right to asylum is one of the basic human rights. It is protected under international, EU, and national law. The fundamental guarantee underpinning the individual’s right to seek asylum is the principle of non-refoulement, also known as the principle of non-return, enshrined in Article 33 of the 1951 Geneva Convention relating to the Status of Refugees and reiterated by numerous other conventions, and which currently enjoys the status of customary international law.

In the context of this discussion, it is crucial to note that the principle of non-refoulement obliges states not only to refrain from returning, expelling, or extraditing a foreigner where doing so would expose them to the risk of loss of life, torture, inhuman or degrading treatment, but also to ensure access to the territory and the asylum procedure conducted in accordance with fair procedures. It must be emphasized that the protection afforded by the principle of non-refoulement extends to foreigners seeking asylum, regardless of how they entered the country and irrespective of the political context of the state from which they came.

In this dimension, the concept of a “temporary and territorial suspension of the right to asylum,” regardless of the specific regulations in this regard, strikes at the very core of the non-refoulement guarantee and undermines the legal essence of this protective norm in a manner incompatible with its legal significance. Under current law, there is no possibility of implementing the Prime Minister's statement without simultaneously violating national law, including the Constitution, EU law, binding treaties, and customary international law.

At this point, we would like to cite a selection of fundamental legal norms binding on Poland that would be violated if the suspension of the right to asylum were implemented:

Article 33 of the Convention Relating to the Status of Refugees (Geneva Convention), which prohibits any contracting state from expelling or returning a refugee to a territory where their life or freedom would be threatened due to the reasons for which they were granted refugee status.
Article 14 of the Universal Declaration of Human Rights, which states that everyone has the right to seek asylum and enjoy asylum in another country in case of persecution.
Articles 6 and 7 of the International Covenant on Civil and Political Rights, which reaffirm fundamental refugee protection principles, particularly regarding the prohibition of return, inhuman treatment, and the right to life.
Article 3 of the Convention Against Torture, which prohibits the expulsion of a person to another country where there are reasonable grounds to believe they would be subjected to torture.
Article 3 of the European Convention on Human Rights (ECHR), which prohibits deporting a person to a country where there is a real risk of them being subjected to such practices.
Article 2 of the European Convention on Human Rights (ECHR), which prohibits deporting a person to a country where there is a real threat to their life (e.g., due to armed conflict, persecution, or other severe human rights violations).
Article 4 of Protocol No. 4 to the European Convention on Human Rights, which prohibits the collective expulsion of foreigners, highly relevant in the context of mass deportations of refugees and migrants.
Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life.
Article 18 of the Charter of Fundamental Rights of the European Union, which guarantees the right to asylum in accordance with the Geneva Convention and the New York Protocol.
Article 19 of the Charter of Fundamental Rights of the European Union, which reaffirms the prohibition of refoulement and protection from deportation to a country where a person may be at serious risk.
Articles 56 and 32 of the Constitution of the Republic of Poland, which state that restrictions on the enjoyment of constitutional freedoms and rights cannot violate their essence, which would be the case with the "suspension of the right to asylum."
Article 9 of the Constitution of the Republic of Poland, which states that Poland is obliged to respect binding international law.

As is unequivocally evident from the above-mentioned provisions of Polish and international law, we have functioned for decades within a legal order based on fundamental values such as human dignity, the right to life, and protection from torture, inhuman, and degrading treatment or punishment. It is essential to stress that these are universal, inalienable rights, independent of place of birth, citizenship or lack thereof, or possession of identity or residency documents.

If, as a result of war or another serious crisis, these rights are severely violated, the law provides the possibility of obtaining protection in another country, including Poland, which has a long and exemplary history of accepting refugees.

From an asylum law perspective, one cannot speak of respecting the human rights of those seeking international protection without individually examining each person’s situation and maintaining the prohibition against returning them to a place where they face danger. The cornerstone of effective protection, the principle of non-refoulement, also guarantees the right to submit an application for international protection and have it considered through an individual, fair procedure, regardless of how the foreigner entered the country.

The concept presented by the Prime Minister would constitute a derogation from the right to asylum, which is irreconcilable with existing legal provisions. Both Polish and European law provide numerous procedural guarantees to deny protection to individuals or groups of individuals abusing this right, which results in the foreigner being obliged to return and deported. However, it is never permissible to “exclude” – temporarily, geographically, or for specific groups – the right to submit and have an asylum application fairly assessed.

Fundamental rights, the rights and freedoms to which every person is entitled, are non-negotiable and not subject to political compromise. They are inviolable and must be respected because they form the foundation of modern European democratic principles. This is particularly crucial in today's uncertain times, when wars and conflicts are erupting around the world. Nothing absolves us from the duty to preserve our humanity and respect the law. We are convinced that it is possible to reconcile a wise security policy with respect for human rights guarantees, which is why we hope the government will revise its migration strategy and begin broad expert and social consultations to develop the most effective solutions in this regard.