Commissioner for Human Rights

The Commissioner submitted an opinion to the Ministry of the Interior and Administration on the draft law on the participation of the Republic of Poland in the European Travel Information and Authorization System (ETIAS). 

The draft provides, inter alia, for an amendment to the Act of 13 June 2003 on granting protection to foreigners within the territory of the Republic of Poland. The aim is to add new grounds enabling the authority conducting proceedings on granting international protection to issue a decision to discontinue the proceedings when this is not contrary to the public interest and the applicant has impliedly withdrawn their application for international protection.

According to the draft, an application is considered to have been impliedly withdrawn if the applicant has refused to provide the information necessary to establish the facts or to make available evidence confirming the circumstances indicated in the justification for the application.

In the opinion of the Commissioner for Human Rights, this solution raises doubts from the point of view of the standards of protection of the rights of foreigners seeking international protection in Poland. In its current wording, Article 40(2) of the Act sets out a closed list of grounds on which the authority may consider that a foreigner has implicitly withdrawn their application. These are objective circumstances that can be verified and are not based on the subjective assessment of the authority. 

These grounds include, for example, failure to appear at the reception centre within a specified period, leaving it without a valid reason, or exiting the territory of the Republic of Poland. The newly proposed grounds are evaluative and subjective in nature. They grant the authority a wide range of discretion, which may lead to arbitrary decisions without taking into account the individual situation of the applicant.

The justification indicates that, given the current geopolitical situation – bearing in mind the hostile actions of the Belarusian and Russian authorities aimed at exploiting international protection for purposes contrary to its nature — measures are necessary to ensure that such cases are dealt with swiftly when the applicant, acting mala fide, refuses to provide explanations or evidence, or provides them in a manner that misleads the authority.

The proposed provision does not refer to bad faith nor does it make its application conditional on any form of abuse by the foreigner. It does not require the authority to prove that the refusal to provide explanations or evidence was made in bad faith or was intended to mislead the authority. As a result, it may also be applied to persons who, for various reasons, were unable to provide the required information or evidence.

Furthermore, the scope of the draft is not limited to situations where there is a suspicion of instrumental use of international protection. The new grounds apply to all foreigners who submit such an application, regardless of their motivation or actual situation.

Seekers of protection are often in a difficult situation; they fear for their own safety or that of their relatives in their country of origin. In such circumstances, the reasons for refusing to provide information or evidence may be justified. They may result, among other things, from fears of reprisals against relatives in the country of origin, lack of trust in the authorities, or inability to secure or transfer from the country of origin evidence that could confirm the circumstances indicated in the application. 

Refusal to provide information or evidence should not be treated as equivalent to withdrawal of the application for international protection. However, the draft does not envisage an obligation to examine the reasons for the refusal or the possibility of providing information and evidence at a later stage of the procedure.

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection sets out the requirements for examining applications for international protection. It requires, among other things, that decisions be taken individually, objectively and impartially.

Bearing in mind that the proposed amendment may lead to excessive discretion on the part of the authority and the risk of arbitrariness, and consequently to a restriction of the foreigner's right to a fair hearing on the granting of international protection, Marcin Wiącek asks the Secretary of State at the Ministry of the Interior and Administration, Tomasz Szymański, to incorporate these comments into the legislative work.

https://bip.brpo.gov.pl/pl/content/rpo-cudzoziemcy-ochrona-projekt-opinia-mswia