1. Preliminary remarks; (Read full CPT report)
25. The border crisis between the European Union and Belarus, which had begun in the summer of 2021, saw thousands of people, mostly from the Middle East, trying to enter the European Union through Latvia, Lithuania, and Poland from neighbouring Belarus. In response to an unprecedented increase in attempts to cross the Polish border from Belarus, a localised state of emergency was introduced in 183 Polish municipalities on 2 September 2021. Around the same time, the Polish authorities also began the construction of a fence between the two countries aimed at stopping the irregular border crossings.21
26. In October 2021, the Polish Parliament passed amendments to the Aliens Act and the Act on Granting Protection to Aliens on the Territory of the Republic of Poland. According to these amendments, a foreigner stopped after crossing the Polish border illegally is obliged to leave the Polish territory and will be temporarily banned from entering the country for a period ranging from six months to three years. Polish border officials were also granted the right to leave unexamined an asylum application filed by a foreigner who was stopped immediately after illegally entering unless they had arrived from a country where their life and freedom were threatened.
The CPT recalls that based on the principle of non–refoulement and the established case law of the European Court of Human Rights, States are under an absolute obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to torture or other forms of ill–treatment. This obligation is applicable to any form of forcible removal, including deportation, expulsion, informal transfer, and non–admission at the border, and in respect of return to any other country to which the person may subsequently be removed (so–called chain refoulement). It follows that Article 3, in conjunction with Article 13, of the European Convention on Human Rights requires States to enable persons to lodge an asylum claim and thereafter to provide for an independent rigorous scrutiny of the claim.
The Committee considers that irregular migrants should have ready access to an asylum procedure (or other residence procedure) which guarantees both confidentiality and an objective and independent analysis of the human rights situation in other countries. That procedure should involve an individual assessment of the risk of ill–treatment in case of expulsion of the person concerned to the country of origin or a third country.
In the Committee’s view, immediately and forcibly returning irregular migrants without any prior identification or screening of their needs, would be clearly contrary to the principles and standards mentioned above. To effectively prevent persons from being exposed to the risk of ill–treatment, the CPT recommends that the Polish authorities align the legal framework and practice with procedural requirements of Article 3 and ensure that irregular migrants who have entered the Polish territory are not forcibly returned prior to an individualised screening with a view to identifying persons in need of protection, assessing those needs, and taking appropriate action.
27. Foreigners deprived of their liberty (pending asylum or return proceedings) are, according to
the Act on Granting Protection to Aliens on the Territory of the Republic of Poland and the Aliens
Act, accommodated in guarded centres for foreigners. 16
According to the Act on Granting Protection to Aliens on the Territory of the Republic of Poland, a
decision to detain an asylum seeker is issued for a period of up to 60 days by a court, upon request
by the Border Guard. If a foreigner claims asylum during their stay in a guarded centre, the period of
detention can be prolonged for up to 90 days from the day of filing the application. The period of a
stay in a guarded centre can also be prolonged if the final decision concerning international
protection has not been issued before the end of the previous period of detention and the original
reasons for detention still exist. In this case, detention can be prolonged by a court for a specified
period.23 The detention of an asylum seeker in a guarded centre cannot exceed six months. Pursuant to the Aliens Act, the court indicates the period of stay in its decision on placing a foreigner
in a guarded centre, but this cannot initially be for longer than three months. That period may then
be prolonged for a specified period which cannot exceed six months in total. After the expiry of that
six-month period, the stay may be further prolonged for a specified period, but not longer than 12
months in total.24 If a foreigner has filed a complaint with an administrative court against the decision
obliging the foreigner to return, together with a request to suspend its enforcement, the period of
stay in a guarded centre may be extended to 18 months in total.
28. According to the statistics provided by the Polish Border Guard, at the end of 2021, 1 737
migrants were detained in the guarded centres for foreigners, of whom 1 299 were asylum seekers. As a result of the extraordinary situation at the Polish-Belarusian border, by the end of 2021, the
number of guarded centres for foreigners had increased from the previous six to nine,25 and the
number of places from 628 to 2 038. As of February 2022, men were placed in Wędrzyn, Lesznowola and Krosno Odrzańskie guarded centres, with Biała Podlaska, Czerwony Bór, Białystok, Kętrzyn, and Przemyśl27 guarded centres accommodating families and single women.
29. The CPT delegation carried out a follow-up visit to the Guarded Centre for Foreigners in Biała
Podlaska, last visited by the CPT in 2009, a follow-up visit to the Guarded Centre for Foreigners in
Białystok, last visited in 2017, and a first-time visit to the temporary Guarded Centre for Foreigners
in Wędrzyn.
30. At the time of the visit, the Guarded Centre for Foreigners in Biała Podlaska, with a capacity
of 361 places, was accommodating 135 detained foreign nationals – families and single women with
children – 69 adults (25 male and 44 female) and 66 children (there were no unaccompanied minors).
The vast majority were Iraqis, 117 were asylum seekers. The foreigners were accommodated in two buildings – the original guarded centre and a repurposed open reception centre for asylum seekers which, until August 2021, had belonged to the Office for Foreigners.
31. The Guarded Centre for Foreigners in Białystok, with a capacity of 159 places, was, at the
time of the visit, accommodating 99 detained foreign nationals – families, single women with children,
and single men – 59 adults (33 male29 and 26 female) and 40 children (there were no unaccompanied
minors). The large majority were Iraqis; 84 were asylum seekers. When opened in 2008, the centre had originally accommodated families but in 2012 it was converted into an establishment for adult men. However, in response to the increased numbers being detained,
in August 2021 it was again repurposed to accommodate families (with an 18-bed ward for single
men).
32. With the capacity of 450 places at the time of the visit, the temporary Guarded Centre for
Foreigners in Wędrzyn, was accommodating 320 detained foreign nationals, all adult single men.
The majority of the men were Iraqis; 226 of them had requested asylum in Poland.
The centre, which is a branch of the guarded centre in Krosno Odrzańskie,31 had been opened in
September 2021, in response to the unprecedented influx of migrants, and is located within an active
military training ground. The temporary character of the establishment clearly had a negative impact
on a number of issues, including the material conditions, regime, numbers of properly trained staff,
etc. (see paragraphs 36, 37 and 49 below). The Committee would like to receive information on
the Polish authorities’ plans regarding further functioning of this guarded centre.
