General (scope, time limits)
The Head of the Office for Foreigners is a state authority which is responsible, among others, for issuing the first-instance decisions on granting and withdrawing protection status, deciding on the responsible state under the Dublin Regulation and social assistance provided in the asylum procedure. The Head of the Office for Foreigners is also a second-instance authority in residence permit procedures.
The time limit set in law for the Head of the Office for Foreigners to decide on the asylum application is 6 months.[1] This period can be prolonged to 15 months if the case is considered complicated (165 cases in 2022),[2] if many asylum seekers are applying at the same time (35 cases in 2022) or if the asylum seeker did not fulfil the obligation of presenting all the evidence and documents or attending the interview (none in 2022).[3] The number of decisions issued within 6 months-time limit was 9134 in 2022 (except for accelerated procedures). The Office stressed that there are no formal guidelines on what is considered a complicated case and the decision in this regard is taken on an individual basis.[4]
In 2022, the average processing time for a decision on the merits was 127 days (like in 2021). The longest processing time took 967 days (in comparison to 531 days in 2021) and the shortest time was 3 days.[5]
According to the law, if the decision is not issued within 6 months, the general provisions on the inaction of the administrative authority apply,[6] therefore the Head of the Office for Foreigners should inform the applicant in writing about the reasons for the delay and the applicant can submit a complaint to the second-instance authority. In 2022, there were 1,540 cases in which the Office for Foreigners prolonged the proceedings under the general administrative law provisions. In practice, information about the reasons for the delay is provided in a very general way and complaints to the second-instance authority are rare. In case a decision on asylum application was not issued within the 6 months limit, the applicant can apply for a work permit on this basis (see Access to the Labour Market).[7] The Head of the Office for Foreigners then issues a certificate, which – together with a temporary ID – gives a right to work in Poland until the end of the procedure. The certificate is also valid for appeal proceedings and onward appeal court proceedings if the suspensive effect is granted.
As of 31 December 2022, there were 2,829 persons whose cases were pending before the Office for Foreigners.[8]
Prioritised examination and fast-track processing
There is no legal basis for prioritising certain types of cases. According to the Office for Foreigners, the Office made efforts to prioritise applications of Afghan nationals as they were considered manifestly well-founded. On the contrary, the Office also tried to prioritise issuing negative decisions towards the applicants from Iraq who crossed the border irregularly.[9]
Personal interview
Personal interviews are conducted by the Office for Foreigners and are generally mandatory in a regular procedure, unless:
- A decision on granting refugee status can be issued based on evidence already gathered; or
- An applicant is not fit to be interviewed (e.g. due to health or psychological problems).[10]
The Office for Foreigners does not collect data on the number of interviews.[11]
Interpretation
Interpretation is ensured respectively by the Head of the Office for Foreigners (for the first instance proceedings) and the Refugee Board (for the appeal proceedings); i.e. they are responsible for securing interpretation and appointing interpreters. The interview should be conducted in a language understandable to the applicant. In the asylum application, the asylum seeker has to declare their mother tongue as well as any fluent knowledge of other languages. Applicants can further request the interviewer and/or interpreter to be of a specific gender.[12]
The contract established between the Office for Foreigners and interpretation services regulates the quality, liability, and specifies the field (asylum). Interpretation is available in most of the languages spoken by asylum applicants in Poland. In 2019, NGOs reported cases where applicants were held responsible for inconsistencies in testimonies which appeared because of improper interpretation.[13] In 2020, there was a temporary problem with the Tamil language and 1 person was heard in English with his consent. The Office for Foreigners also reports that in 2021 there was a problem with approaching a female interpreter for some rare languages and a male interpreter was called instead.[14] In 2022, the Office for Foreigners did not report any problems with the availability of interpreters that are provided by the interpretation agency.
Recording and report
Audio or video recording is possible under national legislation if an applicant was informed about this fact and technical means allow for it,[15] but this is not implemented in practice because there are no technical means for it (no cases in 2020, no data for 2021 and 2022).
The law provides that a copy of the report (protocol) of the interview should be handed over to the applicant after a personal interview. In some cases, the applicants do not take or keep it, but they can ask for a copy at any stage of the proceedings.
The report is written in Polish and includes all questions and answers from the interview, but it’s not an exact word-for-word transcript. After the interview, the report is read back to the interviewee in a language they understand, and they are allowed to make any necessary corrections before signing it. However, NGOs have expressed concern that there is a repeated issue with this method of recording interviews.
Frequently, it is only after the interview that the applicant reviews the interview report with someone fluent in both Polish and their native language, and inconsistencies in their testimony are discovered. However, any comments and clarifications made in the appeal or subsequent proceedings are generally not taken into account. Some NGOs suggest that the recording of the interview would allow to establish what was said during its course and whether it was translated properly.[16]
In 2019, videoconferencing was used for interviews in detention centres. NGOs found this practice problematic in terms of interpretation and concerning vulnerable applicants when a presence of a psychologist is required. In 2021, all the interviews in detention centres were conducted remotely, with the use of Polycom and Jabber applications. The Office for Foreigners declared that in 2022 there was a possibility to conduct interviews in person in detention centres, but there are no statistics available on the number of interviews conducted remotely and in person.
In 2020 and 2021 videoconferencing was applied on a larger scale and beyond the detention context
due to the pandemic. However, the applicants still had to come to the Office for Foreigners. The interviewee and interviewer were sitting in separate rooms and upon the termination of the interview, the interviewee still had to sign the report (protocol) of the interview. This practice was continued in 2021 and allowed for fewer delays in the duration of proceedings. According to the Office for Foreigners, protocols are mainly prepared on the computer, not handwritten.[17] In 2022 the Office for Foreigners declared that “not all” interviews were conducted remotely.
Appeal
Appeal before the Refugee Board
Decisions of the Head of the Office for Foreigners in the regular procedure can be appealed to the Refugee Board within 14 calendar days. The decision (without a justification) as well as guidance on how to appeal is translated into the language that the applicant for asylum had previously declared as understandable; the substantiation of the decision is not translated. The applicant can submit the appeal in their language.
The Refugee Board is an administrative body, consisting of twelve members, supported in their work by six employees, not involved in the decision-making process.[18] In the regular procedure, decisions are taken by three members. The procedure includes an assessment of the facts and there is a possibility of hearing applicants. The Head of the Office for Foreigners is not a party to these proceedings. The time limit set in law for the appeal procedure is 1 month.[19] The appeal has a suspensive effect.[20] Neither hearings nor decisions of the Refugee Board are made public.
In 2022, the average processing time for the Refugee Board to issue a decision in appeal proceedings was 127 days for the cases which finished in 2022. The longest processing time in 2022 was 1,445 days (in 2021 it was 1697 days) and the shortest – was 1 day. There were 2 cases (in 2021 – none) where the Refugee Board decided to hear the applicant and there were no cases of hearing a witness in 2022 (just like in 2021).[21] NGOs point out that proceedings in the second instance conducted by this authority are often merely symbolic, and tend to unquestioningly uphold the conclusions made by the Head of the Office for Foreigners.[22]
In 2022, the Covid-19 pandemic no longer affected the appeal proceedings – there were no limitations on hearings or visits of applicants.
The Refugee Board may annul the first instance decision, overturn it, or confirm it. In 2022, appeals to the Refugee Board were submitted in the case of 1,531 applicants. In the case of 1,449 applicants the negative decision was upheld, meaning that the chances of success of appeals are very low in practice. In 2022, refugee status was granted by the appeal body to 6 persons and subsidiary protection was not granted at all.[23] As of 31 December 2022, there were 277 ongoing appeal cases before the Refugee Board.
When the negative decision or a decision on discontinuing the procedure for international protection is served (delivered), the person concerned has 30 days to leave Poland (unless they are in detention).[24] During these 30 days, their stay in Poland is considered legal.[25] Nevertheless, the Refugee Board also informs the Border Guard that the final negative decision on international protection has been served and the Border Guard are obliged to establish if there are legal grounds to initiate the return proceedings.[26]
Onward appeal
After the administrative appeal procedure before the Refugee Board, the decision of the latter can be further appealed to the Voivodeship Administrative Court in Warsaw within 30 days, but only points of law can be litigated at this stage.[27] The case is revised ex tunc. There is no fee for the procedure. This onward appeal does not have a suspensive effect on a final administrative decision. However, asylum seekers can ask the court to suspend a decision for the time of the court proceedings, if the decision can cause irreversible harm. Therefore, a motion to grant suspensive effect has to be submitted together with the complaint.[28] The authority issuing the decision (in this case the Refugee Board) can also grant suspensive effect on their own decision ex officio or upon request.[29]
The court procedure is adversarial; both the Refugee Board and the asylum seeker are parties before the court. However, the court cannot decide on the merits (i.e. grant protection), but only annul the administrative decision or uphold it. The ruling of the Voivodeship Administrative Court in Warsaw can itself be appealed to the Supreme Administrative Court by lodging a cassation complaint, based exclusively on the legal conditions foreseen in the law, also accompanied by a request for suspension of the administrative decision.
The Law on Foreigners separates asylum proceedings and return proceedings, which means that a return decision is not issued within the asylum procedure. Return proceedings are started after the final administrative decision refusing international protection is served (delivered) to the person concerned (in the case of detainees – while in the case of applicants who are not detained, they have 30 days to leave the territory). However, under the current legal framework, the return proceedings may lead to a return decision being issued before the Voivodeship Administrative Court in Warsaw examines the appeal against the final administrative decision refusing protection to the applicant.
Since 2019, as a result of the judgement in the case C-181/16 Sadikou Gnandi v. Belgium, the Voivodeship Administrative generally suspends the enforcement of the negative decision on international protection based on Article 46(5) of the Procedure Directive. This measure is taken to ensure that the return decision is not enforced until the end of the Court proceedings on international protection.[30] This trend is applicable only with regard to the first application for international protection. In case of subsequent applications, if the application is deemed inadmissible, the Court refuses to grant suspensive effect to such a decision.[31] However, according to the statistics provided by the Voivodeship Administrative Court in Warsaw for 2022 concerning decisions refusing to grant international protection, the Court decided to grant suspensive effect in 28 cases (50 cases in 2021) and in 22 cases refused to grant suspensive effect to such decisions (37 in 2021).[32]
In general, the administrative court proceedings in Poland are being questioned for their compliance with EU law, especially in light of the CJEU’s Alekszij Torubarov v. Bevándorlási és Menekültügyi Hivatal (C-556/17) ruling of 29 July 2019. The judgment states that the administrative court must have the authority to enforce final court judgments. These powers must include the possibility of issuing a judgment on the merits if a final judgment is not complied with in subsequent administrative proceedings. Yet, in Poland the law does not provide such a possibility – i.e. the administrative courts do not decide on the merits, do not take into account facts established during the administrative proceedings and cannot grant international protection.[33]
The administrative courts not only refrain from making decisions based on the substance of the case, but they also do not independently establish facts. Instead, they rely on the facts established during administrative proceedings. In 2022, the Supreme Administrative Court made an interesting ruling stating that since national law does not grant sufficient authority to administrative courts to consider circumstances that have emerged after the administrative decision was made, the Procedures Directive has not been fully transposed. As a result, Article 46(3) of the Procedures Directive must be applied directly.[34] According to the statistics of the Refugee Board, in 2022 there were 307 (compared to 285 in 2021) complaints submitted to the Voivodeship Administrative Court in Warsaw against all the decisions of the Refugee Board (i.e. decisions not only refusing protection). The Voivodship Administrative Court in Warsaw annulled the decision of the administrative authorities (either of the Refugee Board or both decisions of the first and second instance) in 44 cases in 2022, and in 176 cases it dismissed the complaint. In 76 cases cassation complaints to the Supreme Administrative Court were lodged by the applicants in 2022. The Supreme Administrative Court annulled the judgment of the Voivodship Administrative Court as well as the decision of the Refugee Board in 2 cases. In 72 cases in 2022, the cassation complaint was dismissed.[35]
Legal assistance
A State legal aid system was introduced in 2015 and it covers:
- Legal information, provided by the employees of the Office for Foreigners in cases concerning revocation of protection in the first instance; and
- Legal aid in the second instance is provided by advocates, legal counsellors and NGOs. It involves preparing an appeal and providing legal representation in the second instance in cases concerning:
1) refusal of refugee status or subsidiary protection
2) discontinuance of the procedure
3) refusal of reopening the procedure,
4) Dublin procedure,
5) inadmissibility of the application
6) revocation of protection status.[36]
In any type of decision mentioned above, issued by the first instance authority, the instruction on the right to free legal aid is included and is translated into the language understood by the applicant.[37]
The system is managed by the Head of the Office for Foreigners who contracts lawyers, legal counsellors and NGO lawyers. Legal aid is provided by legal counsellors, advocates and 3 NGOs: the Association for Legal Intervention (SIP), The Rule of Law Institute and the Halina Niec Legal Aid Centre.[38] The list of legal counsellors and advocates who are available for 2021 is publicly available together with their contact details and is divided by the cities where they provide services.[39]
In 2022, 169 applicants appealing the decision of the Head of the Office for Foreigners benefited from the free legal aid system, 21 persons were assisted by counsellors or advocates and 126 by NGO lawyers. Considering the low number of individuals benefiting from the legal aid system out of the total of 1,531 appeals in 2022,[40] it appears that the system has little impact on the effective provision of free legal aid to applicants.
The Association for Legal Intervention (SIP) as one of the few NGOs providing legal aid within the system is also of the opinion that assisting only in the second instance is not sufficient. The main evidence is gathered in the first instance proceedings – that is when the applicants are interviewed, country of origin information is collected and witnesses can be heard, but in this phase of the proceedings free legal assistance is not provided (i.e. private lawyer can be arranged, but it means the applicant bears the costs). SIP provided examples of cases in which some evidence from the country of origin was presented in the appeal but was not taken into account by the second instance authorities, who argued the applicants should have presented them at the first instance. The argument, that the applicant had not been advised by the lawyer on what evidence can be relevant to the procedure was not considered.[41]
There is also a separate free legal aid system for administrative court proceedings (onward appeal). Representation before administrative courts can be provided only by professional legal representatives (lawyers, legal counsellors). There is a general possibility to apply for a cost-free professional legal representation before these courts on the same rules that apply to Polish citizens (i.e. insufficient financial resources). There is a form, in Polish, available in the court or on the court’s website (not in the offices of administrative authorities examining the claim). In 2022, the Voivodship Administrative Court in Warsaw (examining all the complaints against decisions regarding international protection) granted free legal assistance in 30 cases and refused to grant it in 33 cases.[42]
For the legal assistance provided in detention see the Judicial review of the detention order.
Before the system of legal aid was created, legal assistance had been provided by NGOs under the European Refugee Fund (ERF)-funded projects. This funding, now provided under AMIF, has been suspended in practice since mid-2015. Many NGOs, with qualified lawyers, continued to provide free legal assistance in the proceedings (including the first instance), but this assistance is not provided on a large scale nor is it stable, since it often depends on short-term funding within projects. Due to the lack of funding, NGOs generally lack resources and cannot assist applicants on a wider scale covering e.g. the presence of a lawyer during any interview.
In August 2021, many NGOs moved to the border zone to provide legal and humanitarian assistance there (see Access to the territory and pushbacks). The introduction of a state of emergency on 2 September 2021 limited this assistance. It is also worth noting that when the ECtHR extended interim measure in the case of R.A. and others v. Poland (application no. 42120/2), it requested that the Polish authorities allow the applicants’ lawyers to establish the necessary contact with their clients. The ECtHR also indicated that, if the applicants are on Polish territory, they should not be sent to Belarus. Poland did not comply with the measure and provided the ECtHR with its position maintaining that, although it understands the humanitarian aspect of the Court’s position, it cannot violate the integrity of the neighbouring country where the migrants are situated. Moreover, Poland suggested that the applicants’ legal representatives go to the nearest border-crossing point in order ‘to cross the Polish–Belarusian border in accordance with the law and, when on the territory of Belarus, go to the camp where the complainants are staying’.[43]
Reduction of the no-entry zone near the Polish-Belarussian border from around 3 km from the border to 200 m from the border, which took place on 1 July 2022, made it easier for the lawyers to provide legal assistance. However, as noted by NGOs, this does not mean that there is full access to legal assistance. Pushbacks occur so rapidly that legal representatives often do not have the chance to respond, such as presenting their power of attorney, and only find out about the pushback afterwards. HFHR reports, that the Border Guard sometimes questions the authenticity of the powers of attorney – especially if they concern legal representatives who are not professional attorneys (which is possible in administrative proceedings). There have been instances where migrants have terminated their powers of attorney due to influence from Border Guards, who allegedly provided them with misleading information such as promising better legal assistance.[44]
[1] Article 34(1) Law on Protection.
[2] Information provided by the Office for Foreigners, BSZ.WKSI.0656.3.2022/RW 26 January 2022.
[3] Article 34 Law on Protection.
[4] Letter from the Office for Foreigners to HFHR no BSZ.WKSI.0656.3.2022/RW, 26 January 2022.
[5] Letter from the Office for Foreigners to HFHR no BSZ.WKSI.0656.3.2022/RW, 26 January 2022.
[6] Articles 36-38 Code of Administrative Proceedings.
[7] Article 35 Law on Protection.
[8] Letter from the Office for Foreigners to HFHR no BSZ.074.3.2021/RW received on 26 January 2021.
[9] Letter from the Office for Foreigners to HFHR no BSZ.WKSI.0656.3.2022/RW, 26 January 2022.
[10] Article 44(1) and (2) Law on Protection.
[11] Information provided by the Office for Foreigners, 15 January 2019.
[12] Article 44(4)2 of the Law on Protection.
[13] M. Sadowska, K. Słubik Osoby LGBT [in] Stowarzyszenie Interwencji Prawnej (SIP), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r. (2019), p. 14, available (in Polish) at: http://bit.ly/2S507LV.
[14] Information provided by the Office for Foreigners, 26 January 2022.
[15] Article 44(5) of the Law on Protection.
[16] M.Jaźwińska, Postepowanie w przedmiocie udzielenia ochrony międzynarodowej, [in] Stowarzyszenie Interwencji Prawnej (SIP), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r. (2019), available (in Polish) at: http://bit.ly/2S507LV, 19.
[17] Letter from the Office for Foreigners to HFHR no BSZ.WKSI.0656.3.2022/RW, 26 January 2022.
[18] Information provided by the Refugee Board, 27 August 2015.
[19] Article 35(3) Code of Administrative Proceedings.
[20] Article 130(1) and (2) Code of Administrative Proceedings.
[21] Information provided by the Refugee Board, 12 January 2023.
[22] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at: https://bit.ly/3oaqWBQ, page 13.
[23] Information provided by the Office for Foreigners, 3 February 2023 and the Refugee Board, 12 January 2022.
[24] Article 299(6)1b Law on Foreigners.
[25] Article 299(7) Law on Foreigners.
[26] Article 299(10) and (11) Law on Foreigners
[27] Regulated in the Law of 30 August 2002 on the proceedings before administrative courts, Journal of Laws 2012 pos. 270 (ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami administracyjnymi, Dz.U. 2012, poz. 270).
[28] Article 61(3) of the Law on proceedings before administrative courts.
[29] Article 61(2)1 of the Law on the proceedings before administrative courts.
[30] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at: https://bit.ly/3LnxrIB, 28.
[31] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at: https://bit.ly/3LnxrIB, 28.
[32] Information provided by the Voivodship Administrative Court on 24 January 2022 and 17 January 2022. However, with regard to some application for granting suspending effect the outcome was not given.
[33] P. Iżycki, O merytorycznym orzekaniu sądów administracyjnych w świetle standardu europejskiego – refleksje na gruncie wyroku Trybunału Sprawiedliwości z 29.07.2019 r., C-556/17, Alekszij Torubarov przeciwko Bevándorlási és Menekültügyi Hivatal [On Administrative Courts’ Adjudication on the Merits of Cases in the Light of the European Standard: Reflections Concerning the Judgment of the Court of Justice of 29 July 2019, C-556/17, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal], Europejski Przegląd Sądowy 4/2020, abstract available at: http://bit.ly/2ZmUqwQ.
[34] Supreme Administrative Court, II OSK 1753/21, judgement of 5 July 2022, summary by SIP available at: https://bit.ly/41BzEI0.
[35] Information provided by the Refugee Board, 12 January 2022. This data may be not fully coherent because of delays in transferring information on judgements.
[36] Article 69c-69m Law on Protection.
[37] Article 53(1) and 54e(1) Law on Protection.
[38] The list of legal counsellors, advocates and NGOs is available on the OFF website at: https://bit.ly/2TYEAUW.
[39] The Office for Foreigners, cost free legal aid, list of service providers, https://bit.ly/3olJiQl .
[40] Information provided by the Office for Foreigners, 3 February 2022.
[41] SIP, Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2019 r., [Report SIP in action. The Rights of the foreigners in 2019.], available (in Polish) at: https://bit.ly/2NhMJ8K.
[42] Information provided by the Voivodship Administrative Court on 24 January 2022.
[43] Fundamental Rights Agency, Migration: Key fundamental rights concern, Quarterly Bulletin 3, available (EN) at: https://bit.ly/3uEvu4G.
[44] HFHR, Input by civil society organisations to the EU Agency for Asylum Report 2023, available (EN) at: https://bit.ly/3oaqWBQ, page 3.