An asylum application may be lodged either on the territory (also or from a detention centre) or at the border. In all cases, a Border Guard (SG) officer is responsible for accepting and transferring the request to the Head of the Office for Foreigners.
First instance: The main asylum authority is the Head of the Office for Foreigners, which falls under the Ministry of Interior and Administration. It is an administrative authority specialised in asylum and is responsible for examining, granting, refusing and withdrawing protection, in Poland, as well as for Dublin procedures (see Number of staff and nature of the determining authority). A Dublin procedure is applied whenever there is evidence or any sign that another State may be responsible for examining the claim.[1] However, Poland is principally a “receiving” country, rather than a country which requests and carries out transfers to other countries.
In Poland a single procedure applies and includes the examination of conditions to grant refugee status and subsidiary protection. A regular asylum procedure, therefore, has four possible outcomes:
- The applicant is granted refugee status;
- The applicant is granted subsidiary protection;
- The application is rejected;
- The proceedings are discontinued e.g. when the applicant is no longer on the territory of Poland.
The negative decision is not automatically accompanied by a return decision. In the two last cases, the determining authority informs the Border Guard about either one of these circumstances, subsequently allowing for return proceedings to be initiated.
Admissibility procedures are most often applied in case of a subsequent application, considered to be based on the same circumstances. There is no border procedure.
Appeal: The Refugee Board is a second-instance administrative body competent to handle appeals against first-instance negative decisions in all types of procedures, including Dublin. Appeals before the Refugee Board have an automatic suspensive effect and must be lodged within 14 calendar days after the decision has been notified to the applicant; the only exemption to this is the appeal in the accelerated procedure which must be submitted in 7 days. The procedure is not adversarial and there is no hearing.
The Refugee Board may then:
- Annul the first instance decision, in case it considers that essential information is lacking to decide on the appeal and further investigation by the Office for Foreigners is needed;
- Overturn the Office for Foreigners’ negative decision i.e. grant refugee status or subsidiary protection; or
- Confirm the decision of the Office for Foreigners, which is most often the case.
After the administrative appeal procedure before the Refugee Board, there is a possibility of an onward appeal before the Voivodeship Administrative Court in Warsaw. Only points of law can be litigated at this stage. This onward appeal does not have a suspensive effect on the Refugee Board’s decision. Upon request of the applicant, the court may suspend a decision for the time of the court proceedings, if its enforcement would cause irreversible harm. The court procedure is adversarial.
The ruling of the Voivodeship Administrative Court in Warsaw can be appealed to the Supreme Administrative Court by lodging a cassation complaint, based exclusively on the legal conditions foreseen in the law. The Court may suspend execution of the decision for the time of the court proceedings upon request.
There is also a different national protection status called ‘asylum’.[2] A foreigner can be granted ‘asylum’ in a separate procedure if it is necessary to provide them with protection, but only if it is in the interest of the state. Political aspects are, therefore, taken into account in this procedure. Throughout the years, the procedure has been very rarely applied (8 positive cases in 2022, 3 positive cases in 2021, and 4 positive cases in 2020).
[1] The Dublin procedure should be applied in every case: Article 36(1) Law on Protection.
[2] Article 90 and next of the Law on Protection.