Draft Amendments to the Aliens Act. Opinion of OSCE/ODIHR

Date:

OSCE/ODIHR is seriously concerned about the Draft Amendments to the Aliens Act, and the Act on Granting Protection to Aliens on the Territory of the Republic of Poland and the Regulation of the Ministry of Interior and Administration of 13March 2020 on temporary suspension or restriction of border traffic at certain border crossing points, as amended on 20 August 2021. According to the OSCE/ODIR opinion the legislation would violate the international legal obligations and OSCE commitments of Poland. It is recommended to substantially revise or drop the Draft Amendments, as well as revise certain provisions of the Regulation in force.

More specifically, and in addition to what is stated above, OSCE/ODIHR makes the following recommendations:

A. The administrative procedure proposed under Articles 1 and 2 of the Draft Amendments fails to provide the requisite safeguards and guarantees, including due to limiting grounds for requesting international protection, the lack of individual risk assessment of the cases that persons present to border guards and thus can lead to violation of the obligation of indirect non-refoulement, as established by Article 33 of the UN Refugee Convention and pursuant to positive obligations under Article 2 and 3 of the ECHR;

B. Provisions 2a and 2b of the Ministerial Regulation are recommended to be repealed or substantially revised as they allow forced expulsion by executive order that may also lead to collective expulsion based on a written protocol which merely documents the illegal crossing of the person onto the territory of Poland and thus result in a violation of the prohibition on expulsion and/or collective expulsion;

C. The proposed provisions will unjustifiably restrict the right to an effective remedy for persons seeking international protection and asylum in Poland en route or on the territory of Poland by limiting the possibility of claims for international protection to be made and not providing effective right of redress and appeal.

Full opinion enclosed