Poland has undergone transition from emigration to immigration country in the recent years. It was followed by developments in the country's return system and Poland has very effective enforcement of return decisions (90%). The collected data show that despite extensive legal framework guaranteeing rights of foreigners regarding their returns, there were several attempts in 2015-2023 to limit these provisions. In particular, the rights of foreigners were drastically limited since 2021, which began with the humanitarian crisis on the Polish-Belarusian border.
Analysis of the legal framework of the return proceedings shows incorrect implementation of the EU return directive. The directive was implemented incompletely in 2013. Most mandatory changes to the law have been taken into account. Optional solutions improving the foreigner's situation were omitted. For example, the possibility of waiving the entry ban in the return decision. Due to changes in the Act on Foreigners, since 2023 the Border Guard is the only body that deals comprehensively with return proceedings, which raises doubts as to the correctness of decision control in appeal proceedings and independence between first- and second-instance bodies. Foreigners do not have access to free public legal aid except for regular legal help provided by organizations supporting migrants. There is a lack of effective monitoring of the return operations, with monitoring of the independent body.
Other gaps in the Poland's return system concern inter alia establishing the Border Guard as the only body conducting return obligation proceedings, both in the first and second instances, shortening the period for filing an appeal, and abolishing the suspensive effect of filing a complaint to court. There is also a lack of qualified guardians in return proceedings concerning unaccompanied minors, automated use of detention, including the detention of children and the possibility of long-term detention, as well as the failure to ensure sufficient transparency in monitoring the implementation of return decisions, in particular by preventing the Ombudsman from monitoring. Last but not least, carrying out pushbacks, which have intensified since 2021 in connection with the humanitarian crisis on the olish-Belarusian border despite numerous ECtHR judgments, considerably threatens the human rights guarantees in the country's return system.
Author: Mateusz Krępa
