Dublin

General

Dublin statistics: 2022

 Source: Office for Foreigners, 3 February 2023.

Source: Office for Foreigners, 3 February 2023.

Source: Office for Foreigners, 3 February 2023.

Application of the Dublin criteria

As the statistics show, Poland is mainly a country receiving Dublin requests from other countries. The most frequent case is when an applicant has his application under examination in Poland and made another application in another Member State (or stays there without a residence document).

Procedure

The Head of the Office for Foreigners is responsible for Dublin procedures and the Border Guard is responsible for transfers.^[4] All asylum seekers over the age of 14 are fingerprinted and checked in Eurodac at the time of lodging their asylum application. In all cases, the Head of the Office for Foreigners applies the Dublin procedure.^[5] The CJEU’s ruling in Mengesteab,^[6] which permits Member States to implement the Dublin procedure from the time of registration before the submission of an application, has not altered the practice of the Office for Foreigners. The Office still initiates the Dublin procedure from the time when the application is submitted.

According to the Office for Foreigners, if the authorities decide to apply the Dublin procedure, asylum seekers are informed about it. They are also informed about the following steps of the procedure e.g. decision received from another Member State, or the need to submit additional documents.

Individualised guarantees

The Office for Foreigners responded, that in 2022 and 2021 only Greece was on the list of countries to be asked for individualised guarantees. However, since Greece does not provide guarantees to hold on to reception standards, no transfers are carried out based on the decision of the European Commission from 8 December 2016.

Transfers

According to the Border Guard, the transfer is organised within days from the moment the decision on transfer becomes final, bearing in mind the time in which other states expect to be informed about the transfer in advance and depending on the availability of plane tickets, etc.^[7]

In 2022, the Covid-19 pandemic did not influence Dublin procedures, but Poland suspended “in” transfers as a result of the Russian invasion on Ukraine.^[8]

Asylum seekers are transferred under escort only when there is a risk of absconding or if they have already absconded before. According to the Office for Foreigners, it concerns applicants staying in detention, but there are also cases where applicants staying outside the detention centres were transferred under escort. The Border Guards reported that in 2022, 22 persons were transferred from Poland under escort.^[9]

There is also a legal basis for detention in Dublin outgoing procedures, based on the risk of absconding (see the section on Grounds for Detention).^[10] The Border Guard reported that in 2022, 110 persons were transferred from detention centres under the Dublin procedure.^[11] No information about the legal grounds of the detention was provided in practice.^[12]

Personal interview

There is no separate interview where an applicant’s case falls under the Dublin Regulation. Additional questions for the Dublin procedure form an integral part of the asylum application form.^[13]

Appeal

Asylum seekers can appeal against decisions taken in the Dublin procedure to the Refugee Board (and then to the Voivodeship Administrative Court in Warsaw and the Supreme Administrative Court) within 14 days following the same procedure described in the section on appeals in the Regular Procedure: Appeal.

The average time for the appeal procedure in Dublin cases in 2022 was 32 days (down from 33 days in 2021). In 2022, the Refugee Board issued 33 decisions (down from 65 in 2021) in Dublin proceedings, with only one decision overturning the decision of the first instance authority.^[14]

Legal assistance

Free legal assistance is offered as described in the section on Regular Procedure: Legal Assistance. State legal aid covers preparing an appeal and representation in the second instance.^[15]

Suspension of transfers

In 2022, requests were submitted to all countries. Only Greece was to be asked for individual guarantees but since there are no positive decisions, no transfers were carried out.^[16]

The situation of Dublin returnees

There are concerns about whether, under the provisions of the Polish law, the Dublin returnees are always entitled to re-opening their first proceedings on international protection. The time limit to reopen the procedure, set out in the Law on Protection, is 9 months. Contrary to Article 18(2) of the Dublin III Regulation, in cases where e.g. the applicant did not wait for examination of his or her asylum claim in Poland but went to another Member State and did not come back to Poland within 9 months, the case will not be evaluated under the regular “in-merit” procedure. Their application lodged after this deadline will instead be considered as a subsequent application and subject to an admissibility procedure.^[17] Moreover, if a person left Poland when their application was processed by the appeal authority and the procedure was discontinued by the Refugee Board, there is no possibility of reopening the procedure, even within the 9 months time limit.^[18] Again, in such a situation, the application of the returnee will not re-open the first proceedings and will be considered as a subsequent application.

Moreover, HFHR reports, that even in a situation when a returnee is entitled to re-open their first procedure, the Border Guards in the detention centres for foreigners make them lodge the subsequent application instead, which is then subject to the admissibility procedure.^[19] Usually, the second application, based on the same facts as the first one, would be declared inadmissible. The domestic law provides no exception in that respect to the Dublin returnees. Such a situation could therefore violate Article 18(2) of the Dublin III Regulation. The inability to continue the first asylum procedure also means that the Dublin returnees who had already spent the maximum period of 6 months in detention before having left Poland, could be again placed in detention centres after their transfer. In such cases, the summary detention period exceeds 6 months.^[20]

These findings are supported by the statistics presented by the Office for Foreigners. In 2022, the number of decisions on discontinuation of the proceedings for international protection was 4,089.^[21] The vast majority of these decisions were issued because the applicant withdrew the application, but not in an explicit way, e.g. did not reach the reception centre after applying for protection or left the reception centre and did not come back within 7 days, did not arrive to the interview, or left Poland.^[22] In 2022, the Office registered 176 requests to reopen the procedure, lodged within 9 months-time limit. There is no information on the number of requests lodged after the 9 months-time limit, but there were 1913 persons who lodged subsequent applications in 2022. In the cases of 792 persons, the Office for Foreigners considered the application inadmissible.

HFHR also reported cases in which the courts of other Member States decided not to transfer a person seeking protection to Poland under Dublin.^[23] In a judgment from 5 September 2022, the Administrative Court of Minden found that due to existing deficiencies in the refugee reception system, returnees to Poland could be subject to inhuman or degrading treatment, contrary to Article 4 of the EU Charter of Fundamental Rights.^[24] A similar justification was given by the Administrative Court in Hanover (Germany) in a judgment of 7 October 2022, which considered the poor conditions in guarded centres for foreigners and the risk of nearly automatic detention.^[25] Also, the Court in the Hague in the judgement from 31 May 2022, prevented a Dublin transfer to Poland based on the assumption that the independence of the judiciary in Poland is under serious pressure and that there are serious concerns about whether the universal human rights of the LGBTQ+ persons are respected in Poland.^[26]

Last but not least, on 15 June 2022, the Court in the Hague, examining the case of a person seeking international protection who was to be returned to Poland, asked the CJEU a preliminary question regarding the Dublin transfers to countries that, despite being members of the European Union, ’seriously and systematically infringe the EU law’.^[27]

In March 2021, the Commissioner for Human Rights (Ombudsman) released a report in the framework of the National Preventive Mechanism, which detailed incidents of inappropriate detention of vulnerable Dublin returnees in the preceding years.^[28] According to the report, the problems occurred due to numerous procedural shortcomings during the transfer of a family to Poland by the German police, as well as the lack of appropriate operational algorithms that should have been implemented to promptly identify victims of torture and violence as well as persons whose mental and physical condition rule out their placement in detention. These cases were reported in 2016, but after visits to detention centres in 2018 and 2019, the Commissioner for Human Rights confirmed that the problem persisted.^[29]

These findings were also present in the report published in 2022.^[30] The Commissioner for Human Rights, by conducting interviews with detainees and analysing the documentation confirmed, that generally foreigners’ statements about experienced violence had no influence on the Border Guards’ actions in terms of applying to the court to place a person concerned in detention. Although the Border Guard implemented the Algorithm on how to deal with persons requiring special treatment, the Commissioner broadly criticized it, stating that these guidelines are contrary to the law and make it impossible to properly identify victims of torture. The algorithm is focused on the possibility of treatment in detention for victims of violence rather than on what is explicitly stated in the law, i.e. that if the detention is a threat to the life or health of the person, the person should not be placed in detention (or if already placed, should be released).^[31] The Border Guard confirmed that the Algorithm has not been amended since 2019, despite repeated criticism from the Ombudsman.

The problem of identification of vulnerable persons does not concern solely the Dublin returnees, as described in detail below (see Guarantees for vulnerable groups and Detention of vulnerable applicants).

[1] According to the Border Guard statistics, numbers concerning transfers are different. In 2022 in total, there were 116 “out” transfers, 37 to Germany, 20 to Romania, 14 to Lithuania.

[2] According to the Border Guard statistics, there were 501 “in” transfers, 309 from Germany, 43 from Norway and 40 from Sweden.

[3] Information provided by the Border Guard, 13 January 2023.

[4] Article 36(2) Law on Protection.

[5] The Dublin procedure should be applied in every case: Article 36(1) Law on Protection.

[6] CJEU, Case C-670/16, Tsegezab Mengesteab v. Bundesrepublik Deutschland (GC), Judgment of 26 July 2017.

[7] Information provided by the Border Guard, 13 January 2023.

[8] Information provided by the Office for Foreigners, 3 February 2023.

[9] Information provided by the Border Guard, 4 March 2022.

[10] Article 398(1)(3a) Law on Foreigners.

[11] No information provided for 2021.

[12] Information provided by the Border Guard, 5 February 2021.

[13] Regulation on the application form (see table on legislation).

[14] Information provided by the Refugee Board, 12 January 2023.

[15] Article 69e Law on Protection.

[16] Information provided by the Office for Foreigners, 26 January 2022.

[17] Article 40(6) Law on Protection.

[18] Information provided by the Refugee Board on 12 January 2023, DOB.WR.1510.1.2023.

[19] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at:  https://bit.ly/3oaqWBQ, page 6.

[20] Ibidem, page 7.

[21] Information provided by the Office for Foreigners, 3 February 2023.

[22] Article 40 Law on Protection.

[23] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at:  https://bit.ly/3oaqWBQ, page 6.

[24] DE: Regional Administrative Court [Verwaltungsgerichte], VG Minden, 12 L 599/22.A, available (in German) at: https://bit.ly/3Nd8ovs.

[25] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, 6.

[26] Ibid.

[27] CJEU, C-392/22, reference for preliminary ruling lodged in 15 June 2022 by Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch, see: https://bit.ly/41dgloh.

[28] The Commissioner for Human Rights, Obcokrajowcy w detencji administracyjnej Wyniki monitoringu Krajowego Mechanizmu Prewencji Tortur, Nieludzkiego, Poniżającego Traktowania lub Karania BRPO w strzeżonych ośrodkach dla cudzoziemców w Polsce [Foreigners in administrative detention. Summary of monitoring within the National Preventive Mechanism in the detention centres in Poland, available (in Polish) at: https://bit.ly/3LnF3ef.

[29] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Lesznowoli (wyciąg), 18 December 2018, availble (in Polish) at: http://bit.ly/2SO3DgP.

[30] The Commissioner for Human Rights, Report on the situation of foreigners in detention centres during the crisis on Polish-Belarussian border, [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi. Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur], June 2022, available (PL) at: https://bit.ly/40cpYCt.

[31] The Commissioner for Human Rights, Report on the situation of foreigners in detention centres during the crisis on Polish-Belarussian border, [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi. Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur], June 2022, available (PL) at: https://bit.ly/40cpYCt, 40-43.