Comments of the CHR on the Act on assistance to citizens of Ukraine. Marcin Wiącek writes to Tomasz Grodzki

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The Commissioner for Human Rights has forwarded to the Marshal of the Senate his opinion on the draft Act on assistance to citizens of Ukraine in connection with the armed conflict on its territory, adopted by the Sejm on 9 March 2022.

At the beginning of his opinion Marcin Wiącek emphasized that the invasion of Ukraine by the Russian Federation’s military forces, unprecedented in recent history, has led to the greatest humanitarian crisis in the history of modern Europe. As its result, almost 1.5 million people have already crossed the Polish-Ukrainian border. The solidarity and assistance provided by the Polish public authorities and their services and, in particular, by the society, to Ukraine and people forced to leave its territory deserve the highest respect and appreciation.

For the same reason, the Commissioner emphasized that the draft act under review was an initiative that was much needed and justified.

Nevertheless, the rapid pace at which the act was drawn up has inevitably led to the inclusion therein of provisions and solutions that may raise doubts and discussions. Therefore, the CHR has forwarded his comments on the draft act to the Marshal of the Senate of the Republic of Poland.

Regulations of the Act vs EU regulations on granting temporary protection

On 4 March 2022, the Council of the European Union issued implementing decision (EU) 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection. As a result of the decision, a large group of people fleeing Ukraine has been granted temporary protection without the need for additional procedures. The protection gives them, inter alia, the right to move across the EU and to residence therein, as well as access to the labour market and healthcare.

The Commissioner has appreciated the fact that the scope of assistance offered by the Act on assistance to citizens of Ukraine is much broader than the assistance guaranteed by the Act on Granting Protection to Foreigners in the Territory of the Republic of Poland, which sets out, e.g., procedures for implementing the EU temporary protection mechanism.

In the CHR’s opinion, the Act should apply to a broader group of beneficiaries

The Commissioner pointed out that the limitation of the Act’s applicability only to Ukrainian citizens and their spouses who legally entered Poland after 24 February 2022, directly from the territory of Ukraine, leaves a significant number of people, who are in a similar situation, outside the aid system. The protection and rights provided for by the Act will not apply, consequently, to Ukrainian citizens who, for example, reached Poland via another country, or to family members who are not spouses and have no Ukrainian citizenship. Therefore, the Commissioner proposes to broaden the group of persons covered by the assistance under the Act in question by stateless persons and foreigners of non-Ukrainian citizenship, who are Ukrainian citizens’ family members other than spouses.

The Commissioner also calls for introducing solutions to protect non-Ukrainian citizens fleeing Ukraine, in particular those whose private and professional lives were centred in the territory of Ukraine. In the opinion of the Commissioner, such persons should have access to the state aid to an extent similar to that offered by the Act to Ukrainian citizens.

The CHR pointed out that the act limits the provision of assistance at reception points only to Ukrainian citizens and their spouses who entered Poland directly from the territory of Ukraine after 24 February 2022. The Commissioner requests that the provision be extended to cover all foreigners who cross the Polish-Ukrainian border. 
The Commissioner also proposes not to make the statutory protection dependent on the legality of entry into the territory of Poland. While currently the border traffic is uninterrupted, the developments in Ukraine may lead to a situation where people fleeing the war may start crossing the border at various points and in any possible way. It is therefore worth drafting the regulations in a manner giving such people the possibility to legalize their stay under the procedure provided for in the act.

Access to education in Poland: too general powers assigned to the Minister of Education and Science

The Commissioner’s significant objections have been raised by the provisions on access to education in the territory of Poland for persons fleeing Ukraine. The Act grants the Minister of Education and Science the general powers to determine, by way of regulation, the organization of education and care for children and young people who are citizens of Ukraine. The Commissioner points out that the solution may give the minister new broad powers, and that it may be inconsistent with Article 92 para. 1 of the Polish Constitution, according to which statutory powers to issue regulations should be specific.

The Commissioner also pointed to:

- Conditions of access to Polish universities: in the opinion of the CHR, the Act should take into account the fact that a significant number of people fleeing Ukraine will not have documents confirming their status as a student.

- Meeting housing needs, and the rights of tenants: in the opinion of the CHR, the solution provided for in the Act may pose a risk of homelessness to people from particularly vulnerable groups (mothers with children, pregnant women, persons with disabilities, bedridden persons, etc.), as the Act does not specify what accommodation assistance, if any, will be provided to this group of people after the expiry of living space lending for use.

- Acceptability of allocating juvenile detention centres and youth shelters as temporary accommodation for people leaving Ukraine: The Commissioner warns against the solution due to prison-like features of such facilities, which may highly negatively impact the psychological condition of the accommodated persons who may have often suffered traumatic experiences.