The WSA’s judgement more broadly recognizes the practice of refugee ‘pushbacks’ as contradicting the obligations of the Border Guard under statutory and international standards, which contradict the practice of 'pushbacks'.
The capture and return of foreigners took place on 27 September 2021, by officers of the Border Guard Post in the town of Michałowo. The Ministry of the Interior and Administration ordered these pushbacks on 13 March 2020, temporarily suspending and restricting border traffic at certain border crossings.According to this ruling any foreigner crossing the border of the Republic of Poland illegally and staying in Poland without a residence permit, could be taken back to the state border by the Border Guard and forced to leave the country without any administrative procedure.
The ombudsman in Poland has opposed this practice from the beginning, pointing out that it is incompatible with national and international law, presenting similar arguments in a complaint to the WSA in Białystok. The Court in Białystok shared the RPO's concerns, ruling that the Border Guard had no authority to establish any procedure for ‘pushing back’ or expelling foreigners from Polish territory.
Furthermore, the WSA emphasised that the Border Guard procedure with regard to foreigners crossing the border illegally and staying in the Republic of Poland without a residence permit was - and still is - regulated in detail in provisions of statutory rank, i.e. the Act on foreigners and the Act on granting protection to foreigners within the territory of the Republic of Poland.
The Provincial Administrative Court in Białystok also shared the Ombudsman's view that the application of the procedure for returning foreigners to the border regulated by the Border Guard Ordinance infringes upon the rights of foreigners to apply for international protection (refugee status) in Poland, and thus violates Article 56(2) of the Constitution of the Republic of Poland and Article 18 of the Charter of Fundamental Rights of the European Union.
It follows from the court's ruling that even the crisis on the Polish-Belarusian border, caused by Belarus, does not relieve the Polish authorities from their obligation to uphold their duty to protect the border and state security, whilst simultaneously respecting human rights and freedoms.
It is worth recalling, that Poland lost a case, brought to the Court of Human Rights in Strasbourg by a group of refugees who were brought back to the Polish-Belarusian border in the summer of 2021 to the Polish-Belarusian border line. The Ombudsman joined the proceedings, stressing that the ‘pushbacks’ harmed the right of foreigners to apply for international protection in Poland.
The Ombudsman told the court that the articles of the European Convention on Human Rights, prohibiting torture and degrading treatment or punishment and collective expulsion of foreigners, had been violated. On 25 August 2021, the Strasbourg Court issued an interim order in the case of Amiri and Others v. Poland (Application no. 42120/21). It concerned 32 foreigners staying at the time by the Polish-Belarusian border near the village of Usnarz Górny. It obliged the Polish government to provide these persons - on whose behalf the attorneys brought the complaint to the ECtHR - with access to food, water, clothing, adequate medical care and, if possible, temporary shelter.
Based on materials from the Office of the Ombudsman.
