Hanna Jarzabek

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Magdalena Fuchs is a lawyer at the Association for Legal Intervention (SIP in polish) in Warsaw. SIP is one of the non-governmental organizations focused on migration in Poland. Since March 2022, Magdalena has been working on the Polish-Belarusian border crisis and intervening in cases of migrants who have been detained in one of the Guarded Centers for Foreigners (SOC in polish).

“We intervene after migrants are already placed in guarded centers. There are more of these centers in Poland, but we go to two once a month: to Kętrzyn and Wola. In order for such a meeting to take place at all, the foreigner must first express his willingness to meet us, we cannot do it on our own initiative. In general, people working in the centers should provide our e-mail address as part of access to legal assistance that the Polish state should guarantee. Our help is free of charge and it is usually indicated on the documents that should be given to foreigners. Theoretically, these documents should also be in English and Arabic, or an interpreter should be provided so that the foreigner can understand it, but whether this is always respected is difficult to say. Information about our help can also be delivered through some other channels, but since we don't have access to the inhabited part of the Centre, I don't know what it looks like.

If a foreigner expresses a desire to meet us, we usually have no problem with entering the Centers and already at the meeting we determine his story, we ask how he got to Poland, whether he underwent a pushback or not, what was his history in the country of origin, etc. We are trying to do as much as we have legal instruments for to get them out of detention and explain to them what their legal situation is. Because there are situations when this detention is not justified. Generally, as an association, we hold the position that detention is not an adequate solution, but we always first verify whether detention in a given case is legally justified at all; that is, whether it does not exceed the period for which the Polish law allows, whether it complies with EU directives and whether the person is not in a sensitive situation because, for example, he is a victim of violence or has any chronic diseases. In those kinds of situations such a person should not have been sent to such a facility.

When someone reports to us that they have already been pushed back, theoretically you can complain about it to the Strasbourg Court, but in reality it is very complicated. We speak about the Convention on Human Rights (International Covenant on Civil and Political Rights) where the second article talks about the right to life and the third article prohibits torture and you can sue Poland for breaking this Convention when pushbacks happen. But in reality it looks different. Firstly, the Tribunal can reject this complaint for lack of evidence, and pushbacks are hard to prove because there are generally no photos, no statements, and no evidence other than the person's words that it happened. Secondly, such cases last 3 or 4 years and in the meantime the fact that the case was submitted does not have any positive impact on the foreigner's situation; sometimes quite the opposite. Therefore many people prefer not to file such complaints. Well, unless someone feels the need for dignity, but it is a complicated and very long process and most simply prefer not to risk it. If the Tribunal issued a positive judgment in such a case at least once, it would set a precedent and it would be a tool for the future for us, but thinking on an individual level, sometimes we think that we can best help a person in his procedure in Poland than by filing a complaint.

I'm trying to find out if a given foreigner received any decision at all before he was pushdback. Well, theoretically, they should get on paper a decision to leave the country. This is an administrative procedure that should be registered, some protocol should be drawn up and the foreigner should get a copy of this decision. But in reality this is not the case and when I write to the guards asking for access to these types of documents, they usually tell me that they do not have such documents. Whether this is true or not, it is difficult to say. We could press and demand access to the files, but for practical reasons it is difficult because we do not have a facility on site and it is difficult to travel from Warsaw all the time. So we do not know whether these decisions are issued or not, and if so, whether and for how long they are kept on file. But from my experience of these few months of work, I have yet to meet a foreigner after a pushback who would tell me that he had received such a document. Once it happened to me that someone told me that they gave him a piece of paper to sign and then pushed him back to the Belarusian side. Of course, this person didn't get any copy, and the document wasn't translated, so he doesn't even know what he signed. The Polish government introduced a directive in polish law to make issuing of those orders somehow legal, but even these legal pretenses are often not observed by Border Guards.

 
In general, Polish migration law is in line with EU law both with regard to persons who apply or want to apply for international protection and with regard to deportation to their countries of origin. On the other hand, what the Polish government changed when the crisis on the border with Belarus began refers to the decision to oblige people to return and leave Poland. There is no such thing in EU law. So theoretically, the European Commission could file a complaint against Poland to the Court of Justice of the European Union, but there are various issues, including political ones. Therefore nobody really follows what is happening here. Unfortunately, Europe's migration policy also leaves much to be desired, because the emphasis is on the externalization of border protection, and in this respect the situation in Poland is no exception.

Another instrument that is sometimes used here on the border is the so-called Interim. It is a preventive measure, which results from the Rules of Procedure of the Strasbourg Court. This can be used if there is a risk of violating the human rights of people who are in the territory of a state that is a party to the Convention. So here only what is happening on the Polish side is taken into account, because in Belarus the Convention does not apply. Interim obliges the state party to the convention, i.e. Poland, to do everything to ensure that the human rights of a given person are not violated, including accepting an application for international protection from that person. However, such an Interim request must be faxed, it cannot be sent by email and is usually answered within 24 hours. So in a situation where we meet a refugee in the forest and there is a real danger that they will push him back, applying for an Interim does not really solve anything, because first of all, how to send it by fax in the forest and secondly, sending it alone does not give it legal force and the border guard might just say he doesn't care. So in fact, at the time of detention, the only thing a foreigner can do to try to avoid pushback is to ask for asylum.

According to Polish and European regulations, the Geneva Convention and so on, if a foreigner crosses the border, even illegally, and declares his will to apply for asylum, then all services, whether it is the guard, the army or anyone else, are obliged to enable him to submit this application. But we saw that in reality, even when people expressed such a will, it did not help and they were pushed back. By doing so, the Border Guards act against all applicable laws.

Guards often argue that the person did not want to apply for asylum in Poland, so they notified such a person an obligation to leave Poland and "escorted" him to the border. From a legal point of view, if someone illegally crossed the border, he may receive a decision obliging him to leave Poland. So "escorting to the border", it's a way of implementing this decision to oblige this person to return where he came from. But, in accordance with the regulations in force in Poland, such a decision cannot be made if there is a risk of life or danger for people after returning to a given country, and it is well known what the situation in Belarus is not safe. No Polish office or Polish court can say that he doesn't know it, or that it's safe there and that nothing will happen to that person. And even more if this "escorting to the border" consists of forcibly packing people into a car and throwing them somewhere in the forest, then it is a violation of all constitutional laws and international regulations.

Another fact is that these pushbacks are often collective. I mean if the Border Guards catch a bunch of people in the woods, instead of looking at each case individually, they pushed them back all together. And this is against both Polish and international law and the Geneva Convention. The guards are obliged to interrogate each person separately, to obtain such basic information as: where did they leave from, why and what was the situation in their country, plus what was the situation in Belarus. But no one does that in the forest.