European Union Asylum Procedure Law Implementation

- evaluation of Polish experience

The major problems of the migration law implementation

process in Polish legal system

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

Major regulations regarding the principles of the procedure of determination of the asylum seekers status

It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for third-country nationals and stateless persons who ask for international protection from a 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)

The progress of implementation

There is no asylum nor migration policy in Poland There is no large 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.

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

Polish asylum and migration regulations

Act on aliens of 13 June 2003 (Journal of Laws of 2003, No 128, it. 1175)

Act on granting 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)

Basic principles of the fair procedure

In the scope of the implementation process in Poland

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

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)

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

Polish Law:

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 the Republic 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 of Poland or the decision on expulsion;3) the circumstances referred to in art. 88 sec. 1 of Act of 13 June 2003 of Aliens apply and this fact has occurred after submission of an application for granting the refugee status.

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

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 given in the course of RS application

consideration

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

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

For more information on Polish asylum system:

http://pomocprawna.home.pl/dosciagniecia/ICF/Raport.doc

For HNLAC statement to EU Commission Green Paper on Future Common Asylum System:

http://pomocprawna.org/HNLAGreenPaperReply2.doc