Background Information on the Situation in Poland in the Context of the "Safe Third Country" Concept

1.         The Office of the United High Commissioner for Refugees (UNHCR) considers the notion of safe, or first, country of asylum as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized, either within that country or by an act of refoulement. The Office is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.

2.         The Office has identified some factors for consideration when determining whether the return of a refugee or an asylum seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are: ratification of and compliance with the international regional human rights instruments; ratification of and compliance with international refugee instruments, in particular with the principle of non-refoulement; readiness to permit asylum seekers to remain while their claims are being examined; adherence to basic recognized human rights standards for the treatment of asylum seekers and refugees; and, notably, the State' s willingness and practice to readmit returned asylum seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection.

3.         Poland acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees on 27 September 1991. It ratified the International Covenant on Civil and Political Rights on 3 March 1977, the International Covenant on Economic Social and Cultural Rights on 3 March 1977 and the European Convention for the Protection of Human Rights and Fundamental Freedoms on 19 January 1993.

4.         The Polish Government has signed re-admission agreements with the following countries: Belgium, Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Hungary, Italy, Luxembourg, Moldova, the Netherlands, Romania, Slovakia, Ukraine. It should, however, be noted that these readmission agreements generally apply to the return of nationals of the contracting state and/or third country nationals who entered a contracting state illegally. These agreements do not necessarily take into account the special situation of asylum seekers and do not ensure their access to a refugee status determination procedure.

5.         National legislation relating to refugees is primarily contained in the Aliens Act as amended on 19 September 1991, and there is concern as to the full compatibility of this with relevant provisions of international law. Article 88 of the 1952 Constitution, still in force, and Article 10 of the amended Aliens Act also relate to asylum. A new Aliens Law is currently being drafted and may be promulgated by the end of 1995. Meanwhile, the procedural aspects of refugee status determination an governed by the Administrative Procedure Code. Contrary to Article 35 of the 1951 Convention, numerous requests by UNHCR to be allowed access to and input into the draft Aliens Law currently being promulgated were not considered prior to the document entering the Parliamentary review. Several of the proposed provisions give rise to serious concerns, as they do not meet international standards established by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. In 1995 a new employment law providing for access of recognized refugees to legal employment, has been promulgated.

6.         The ability of asylum seekers to exercise rights accorded by the Administrative Procedure Code appears limited. Under these regulations persons may apply for refugee status at the border or with the Ministry of Interior, Office for Migration and Refugee Affairs. The admission of refugees at land borders remains problematic. UNHCR has no guarantees that persons requesting refugee status at the border are admitted to the procedure in Poland. This applies particularly to persons who are not in possession of valid travel documents or visas. Polish law does not contain provisions safeguarding the access of insufficiently documented asylum seekers at the border as would be required by Article 33 of the 1951 Convention. There have been allegations by asylum seekers who have managed to contact UNHCR from Warsaw Okecie airport that their asylum requests have been ignored by the authorities. Given the unavailability of interpretation services in certain languages, persons seeking to lodge an asylum claim may be unable to articulate their fears. In cases where UNHCR is notified about an asylum claim, intervention generally results in admission to the procedure. Of concern in this connection, are cases returned from other countries, whose asylum claims have not been assessed on their merits due to legislation relating to safety elsewhere, yet whose access to the asylum procedure in Poland cannot always be guaranteed.

7.         According to government statistics less than a thousand applications were lodged in 1994 and the first eight months of 1995. During the same period less than 400 persons have been recognized as refugees, mostly persons from Bosnia and Herzegovina. Despite the relatively low number of persons seeking protection in Poland, UNHCR is aware of claims in which decisions remain outstanding for well over one year. Lack of an expeditious process and limited prospects for recognition and subsequently for integration lead many asylum seekers to abandon spontaneously their claims and depart from Poland. Use of fraudulent documents to gain entry to Poland appears to be accorded an unreasonable amount of weight in substantive determinations made by the authorities, as is the possession of a passport or visa to Poland obtained in the country of origin. UNHCR is aware of instances where asylum seekers were not properly interviewed and consideration of the well foundedness of claims was inadequate. UNHCR is generally denied meaningful access to monitor procedures. Review procedures are heard by the Office for Migration and Refugee Affairs, the same authority who makes initial determinations.

8.         A limited number of asylum seekers are accommodated in centers maintained by the Polish Government. For those provided with this assistance all support ends upon receipt of a first instance negative decision, which often makes the right to appeal merely theoretical. Since 1992 UNHCR has funded integration programmes, which are planned, coordinated and supervised by the Office for Migration and Refugee Affairs. in accordance with a resolution of the Ministry of Interior. However, due to delays in the implementation of these programmes and the absence of effective measures aimed at overcoming the main obstacles to integration, the number of recognized refugees remaining in Poland is very limited. Authorities have hitherto not supported NGOs attempting to provide alternative assistance to refugees, and at times have been opposed to their initiatives.

9.         UNHCR recognizes the many other pressing priorities of the Polish Government. In the face of enormous social and economic difficulties inherent in a restructuring process, effective management of refugee issues is not an easy task. This situation is further complicated by the reality that Poland like many other states in Central and Eastern Europe, is seen by many asylum seekers as a transit country rather than as a place to seek protection.

10.        UNHCR has urged the Polish Government to establish and implement appropriate reception, status determination and integration structures. Denial or delay of access to procedures, as well as serious shortcomings in the procedure itself may expose persons in need of protection to a risk of refoulement.

11.        As a result of the above mentioned considerations, the Office recommends that the return of asylum seekers and refugees to Poland, on the basis of their stay or transit there, be carried out on the basis of bilateral negotiations aimed at obtaining from the Polish authorities assurances that they agree to readmit the person(s) in question, accept them into a fair and effective procedure and provide them with adequate protection. In the absence of such assurances from the competent Polish authorities, the Office at present advises against the return to Poland, on the basis of their stay or transit there, of asylum seekers and refugees who have arrived in third countries.

UNHCR Geneva, November 1995.