Follow-up works on draft Foreigners Act
Poland’s legislators continue to work on the draft new Foreigners Act. In November last year the HFHR presented its remarks to the bill. In late January 2013 the Ministry of Interior hosted a consensus conference to discuss the remarks made by NGOs.
A large proportion of the HFHR recommendations were given attention in the course of legislative works. “As we recommended, the new law will explicitly say that a foreigner must not be denied access to Poland, if on crossing the Polish border he or she expresses an intention to apply for the refugee status in Poland, even if he or she holds no documents entitling him or her to cross the border”, says Maja Tobiasz, HFHR lawyer. Thereby Poland will ensure the exercise of the right to asylum and access to a refugee procedure and thus meet the country’s international obligations.
A key suggestion of the HFHR was to make a foreigner’s detention in a guarded centre a measure of last resort to be imposed only after all other alternative and legally available options have been explored. This proposal has been partially recognised by awarding courts powers to order measures alternative to detention. “This is an important step on the way to implementing the principle of Community law according to which a detention is a last resort measure”, says Karolina Rusiłowicz, HFHR lawyer.
The draft act also provides an absolute, six-month upper limit of detention for foreigners applying for the refugee status. However, the bill contains no direct mention of the obligation to treat detention as a last resort measure and hence fails to establish a duty to consider alternative measures prior to ordering detention. Consequently, the Border Guards service has no legal right to apply measures alternative to detention before a decision requiring a foreigner to return to his or her country of origin is issued and before a motion to place a foreigner in a guarded centre is submitted with a court.
“The EU laws restrict the use of detention to instances where no other, less restrictive and sufficient measures are available”, says Ms Rusiłowicz.
The bill also abolishes an additional income criterion according to which a foreigner has to show a monthly income equal to the minimum wages. The income test was used, for instance, when a foreigner applied for a uniform temporary residence permit and work permit.
According to the EU Return Directive “Member States shall provide for an effective forced-return monitoring system”. The draft law is silent on the source of funding of the monitoring of returns (except for travel costs), which in practice would prevent the involvement of NGOs with no funds allocated for the purpose. In the HFHR’s opinion, to ensure effective monitoring the monitoring body should be provided with decisions ordering forced returns of foreigners.