The UN Refugee Agency (UNHCR) has published its Observations on the legislative changes in Poland introduced following irregular arrivals from Belarus, in which it regrets restrictions on the right to seek asylum.

According to UNHCR, among other concerns, the amendments restricting the possibility to seek asylum in the border area creates two classes of asylum seekers violating provisions of Article 31 of Refugee Convention which underlines the prohibition of penalisation based on mode of arrival. The agency notes that: “the right to seek and enjoy asylum does not depend on the regularity of arrival of an asylum seeker to a country, as asylum-seekers are often forced to arrive at or enter a territory without prior authorization” and  “The Draft Law relies on a misapplication of article 31 of the Geneva Convention”.

UNHCR expresses deep concern about the provision that applications can be arbitrarily rejected without examining the individual circumstances,  the consequences of removal or the availability of protection elsewhere, which “undermines the right to seek asylum as foreseen in the 1951 Convention and the EU asylum acquis”. UNHCR notes “States are required to grant asylum seekers access to their territory and procedures” and thus recommends that Poland admits to its territory and to asylum procedures people seeking asylum at the borders, with extensive references to EU and international law.

UNHCR’s Observations are in line with the more detailed assessment of the national legislation published this week by ECRE member, Polish Helsinki Foundation (HFHR). Marta Górczyńska, a lawyer cooperating with the HFHR and the author of the legal analysis states: “According to the law, persons seeking protection may make such a request to any state officials and anywhere, including outside official border crossing points, and such a request does not have to take any specific form. Refusal to accept such a request may lead to a violation of the principle of non-refoulement, i.e. the principle of not returning refugees to countries where they are in danger”.

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Photo: (cc) Piotr Drabik, March 2011

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.