Polish law restricting the right to asylum at borders
By Barbara Mikołajczyk, University of Silesia
Since July 2021, in response to EU sanctions imposed on Belarus following the rigged 2020 presidential election, the Belarusian authorities have launched a campaign to destabilise Poland by engaging in instrumentalisation of migrants at the border with Poland. The Polish Border Guard provides evidence that Belarusian officers are organising mass border crossings by migrants at the border, and that they are encouraging or facilitating the migrants’ use of violence against Polish officers. The Polish Border Guard staff are coming under attack from improvised weapons (sharpened sticks, broken glass, stones, slingshots and sometimes knives). The Belarusian forces have also been found to have engaged in an operation to provide migrants with equipment to destroy parts of a dam that was built in 2022. In May 2024, a soldier was stabbed in the chest and killed. Due to the growing tension at the border, in June 2024, a buffer zone was introduced on the Podlasie section of the Polish-Belarusian border to limit access to the border. Prolonged for the third time in March 2025, this zone now covers additional areas and aims to limit the presence of people in the border strip. In turn, zones up to four kilometres wide have been introduced in some sections to prevent illegal crossings.
From July 2021 to November 2024, the Polish Border Guard recorded 110.595 attempts to cross the Polish-Belarusian border illegally according to the rationale for the act introducing the possibility of suspending the right to asylum. All these events are taking place in the context of Russia’s invasion of Ukraine and constant threats from Russia towards Poland. The need to take decisive steps to protect the border is therefore indisputable, especially since a visa-free travel agreement between Russia and Belarus came into force in January 2025.
This situation is a blatant example of the instrumentalisation of migration, which is a challenge not only for Poland but also for the Baltic States, Finland, and also recently Greece. Iris Goldner Lang has discussed on this blog (see here) the changes in the EU that led to the regulation on Crisis and Force Majeure Regulation 2024/1359 which broadly defines the situation of instrumentalisation as a type of crisis situation “in which a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals to the external borders or into a Member State, with the aim of destabilising the Union or its Member States, where such activities could jeopardise the fundamental functions of a Member State, including the maintenance of law and order or the safeguarding of its national security” (Article 1(4)(b)).
It is well known that migrants arriving from Belarus have faced push-back practices by Poland that began long before the summer of 2021 as documented by the reports and views of human rights bodies (UN Human Rights Committee [2016], [2023] and the UN Committee against Torture [2019]), as well as judgments of the European Court of Human Rights, including in the cases of M.K and others v. Poland and D.A. and others v. Poland. The situation at the EU–Belorussian border should also be considered a humanitarian crisis and human drama (see here). According to the Helsinki Foundation for Human Rights analysis devoted to mapping deaths at the border, in most cases migrants are forced to return to Belarus without their identity being verified and without the legally prescribed administrative procedures being carried out by Polish border guards. They are returned through service gates in the dam as well as at swamps, and border rivers. As a result, many people require urgent medical attention from fractures and injuries, dehydration, hypothermia and exhaustion as well as the exacerbation of symptoms of existing chronic diseases. This analysis provides that, from 2021 to the end of March 2024, 116 people have been documented as dying on the European Union’s eastern border in four countries (Belarus, Latvia, Lithuania and Poland).
The most well-known situation is that of a group (initially 60 people, later around 30) of Middle Eastern migrants (Afghans and Iraqis) who were stucked on the Belarusian side of the border from August to the end of October 2021. The case R.A. and others v. Poland ended up before the ECtHR. Currently, it has come before the Great Chamber. The circumstances of this case are different from those in M.K. and D.A mentioned above concerning the refusal to accept applications at border crossings, because it concerns applications in the context of an attempt to cross the border outside border crossing points. It is problematic whether in the R.A. case the complainants had a real chance to apply at the border crossing or another “authorised” location. Still, formally, the border crossings were not closed at that time and the right to apply for international protection was not suspended. The judgment in this pending case and similar cases – H.M.M. and others v. Latvia and C.O.C.G. and others v. Lithuania – will determine the standard of protection for migrants in a situation of instrumentalisation of migration.
The situation at the Polish-Belorussian border prompted several legal changes in Poland, including a highly contentious amendment to the Act on Granting Protection to Foreigners. On 14 October 2021, despite widespread criticism from human rights institutions such as UNHCR, OHDIR and various NGOs, the act was revised. The amendment allowed the Head of the Border Guard Office to dismiss applications for international protection submitted by foreigners apprehended immediately after unlawfully crossing the EU external border. However, exceptions were made for individuals who arrived directly from territories where their life or freedom was at risk due to the threat of persecution or serious harm, provided they presented credible reasons for entering the Republic of Poland illegally and applied for international protection immediately after crossing the border. However, it should be noted that in Polish, “immediately” is a relatively vague concept and may not denote instant action. Consequently, this interpretation allows for scenarios where a foreigner might be apprehended after spending several days in the forest and covering significant distances from the border.
It was expected that, after the change of power following the Polish parliamentary elections of October 2023, these regulations would be repealed by the new governement as they were assessed as incompatible with the principle of non-refoulement, other international human rights obligations and Article 56 of the Constitution of the Republic of Poland which proclaims that “foreigners who, in the Republic of Poland, seek protection from persecution, may be granted the status of a refugee in accordance with international agreements to which the Republic of Poland is a party.” This happened, though not necessarily in the way that the human rights institutions and NGOs might have expected. The new law of 21 February 2025 (discussed below), introducing, among other things, the legal basis for temporarily restricting the right to apply for international protection, admittedly repeals Article 33.a [1]. Additionally, in the context of the instrumentalisation of migration, the adopted reforms seem to legalise pushbacks, which have already been or are still considered by the ECtHR.
The new Polish law
The new law of 21 February 2025 amending the Act on Granting Protection to Foreigners establishes a legal framework for temporarily restricting the right to apply for international protection. New provisions were adopted despite protests from the UNHCR, the Polish Bar Council, the Helsinki Foundation for Human Rights, the Ombudsman and the Center for Research, Studies and Legislation of the National Council of Legal Advisers. As a result of the consultation, only the provision preventing the submission of asylum applications on behalf of spouses and children were removed from the final version of the act. Even after the bill was passed in Parliament, a consortium of NGOs appealed to the Polish President to veto the new law, but he signed the amendment on 26 March 2025, and it came into force on 27 March 2025.
In this context of tense situation at the border with Belarus, introducing a legal basis for temporarily restricting the right to apply for international protection is the focus. The Council of Ministers can impose such restrictions for a period not exceeding 60 days. If the reasons for the restrictions have not ceased, they may be extended for another fixed period of up to 60 days if the Sejm (lower chamber of Parliament) consents to the extension. It is possible to lift the temporary suspension of the right to asylum earlier, either on the entire border or part of it if the situation improves.
First of all, the amendment introduces the notion of “instrumentalisation”, which includes actions by a country bordering Poland, or another entity, enabling foreigners to cross the external border in violation of the law. This applies in particular to the use of violence against service officers and soldiers of the Polish Armed Forces protecting the border, as well as the destruction of border infrastructure which may result in the destabilisation of the internal situation in Poland.
Crucial is a new Article 33a.[1] stipulating that “The right to apply for international protection may be temporarily restricted where:
1) instrumentalisation takes place, and
2) instrumentality activities pose a serious and real threat to the security of the state or society and
3) the introduction of this restriction is necessary to eliminate the threat referred to in point 2, and other measures are not sufficient to eliminate it”.
Exceptions to the temporary restriction on the right to apply for international protection are stipulated in Article 33b, providing that “an application for international protection is accepted by the Border Guard authority from a foreigner who is:
1) an unaccompanied minor;
2) a pregnant woman;
3) a person who may require special treatment, in particular due to their age or state of health;
4) a person who, in the opinion of the Border Guard authority, is clearly at risk of serious harm in the country from which they have directly arrived in Poland”;
5) a citizen of the instrumentalising state from whose territory foreigners enter Poland.
However, the application will not be accepted if foreigners belonging to the above categories have used direct coercive measures and weapons or other armaments immediately after they crossed or attempted to cross the border by force and in cooperation with others.
More questions than answers
The day after the president signed the new law, the Council of Ministers, in its regulation of 27 March 2025, implemented restrictions for 60 days along the whole border with Belarus, justifying the immediate implementation by the sharp increase in the number of attempts of illegal crossings. The Ministry of Interior and Administration reported that from 1 January 2025 to 20 March 2025, 2.227 such attempts had been recorded with 1.383 cases in March alone. This corresponds to the upward trends in spring 2023-2024, so a further significant increase is likely in the coming months.
Border control and non-refoulement: are they contradictory?
Given the dangers emanating from Belarus and Russia, there is no doubt that the state has the right to strengthen border controls, especially in a situation of instrumentalisation of migration, aggressive behaviour on the part of migrants and influxes in large groups and attempts to cross the border outside of border crossings.
In a communication dated 11 December 2024, the European Commission confirmed that Member States with external borders with Russia and Belarus should be able to act in a firm and decisive manner to control their borders effectively. They are responsible for maintaining law and order, safeguarding internal security in their national territories, and effectively controlling and managing the external borders as required by EU law.
At the same time, the Commission continues to recognise that the right to asylum, respect for human dignity and the principle of non-refoulment are important foundations. However, it is also assumed that international law and EU law allow Member States to resolutely resolve situations where it is necessary to maintain security and public order while respecting the rights of all persons affected by these measures. The Commission points to the significance of the Court of Justice in assessing the legitimacy and proportionality of the measures taken. Future case law in this area will reveal how flexible EU law is. As Daniel Thym notes on this blog, EU law, including Article 72 TFEU and Article 18 of the Charter of Fundamental Rights, may leave a certain margin for interpretation.
The European Court of Human Rights also provides some guidance on the measures that can be taken at borders in crises, especially in the cases of N.D. and N.T. v. Spain (see here a comment on this blog) and A.A. and others v. North Macedonia. In the latter judgment of 5 April 2022, the Court ruled that the European Convention on Human Rights does not prevent states from requiring that requests for such protection be submitted at existing border crossings in fulfilling their obligation to control borders. Consequently, they may refuse entry to foreign nationals, including potential applicants for protection who without justified reasons have not complied with these provisions by attempting to cross the border at another location, in particular by taking advantage of their large number (paragraph 115 of the judgment). Thus, the ECtHR confirms the state’s right to shape the way the border is protected, but on the assumption that there are real chances to submit an application for protection at a designated place, in particular when it comes to respecting Article 3 of the Convention. The exercise of necessary and effective border control cannot therefore be equated with a derogation from the prohibition of refoulement.
Which discretion for border guards?
The introduced restrictions mean that border guards on the Polish-Belarusian border will not accept applications for international protection unless they come from someone who belongs to one of the groups mentioned above. It doesn’t matter if the foreigner tries to apply at the border crossing or outside it. Thus, the solutions adopted not only suspend the right to seek asylum, the inherent principle of non-refoulement and the prohibition of collective expulsion of foreigners, but may also undermine non-derogable rights like freedom from torture, the right to life, the prohibition of slavery and of inhumane and degrading treatment. Any limitations on other rights (e.g. freedom of movement) should be proportional and necessary to achieve the goal (here preventing destabilisation). They therefore require strict precision. However, the adopted regulations here are vague and laconic and leave border guards with a great deal of discretion.
Even the term used in the Council of Ministers regulation “on the border with Belarus” is unclear. Does it refer to the borderline or the buffer zone, which was introduced in 2024 and extends up to four kilometres, or perhaps it is another undefined area where a foreigner was apprehended but had previously managed to cross the border illegally? The latter approach would correspond to the solution adopted in the repealed provision introduced in 2021.
The introduced provisions do not indicate what “restriction to apply for international protection” means formally. Does it mean that applications are not accepted as if migrants were invisible? Do they receive a decision of refusal to accept the application? Can they appeal, and to whom? The new regulations exclude the activity of the Head of the Office for Foreigners in this regard, which would normally consider applications for international protection and issue decisions granting or denying it.
The scope of individuals listed in Article 33 b from whom border guards are required to accept applications for protection, raises also many questions. After all, the explicitly mentioned “unaccompanied minor” and “pregnant woman” fall under the premise of “a person who may require special treatment, in particular, due to their age or state of health,” so why are these individuals explicitly highlighted and not others? Why, for example, are parents with young children not designated either? What about other vulnerable migrants? How will early pregnancy be verified? Do border services have the ability to verify a woman’s declaration of pregnancy under dignified conditions? In practice, will a certificate, whether genuine or falsified, of pregnancy be worth more at the border than a passport or evidence of persecution in the country of origin? Another question can be posed in the context of a minor who, due to travel disruptions, has arrived unaccompanied while their parents/caregivers or other guardians show up at the border a bit later. Will the current regulations lead to the separation of the family? Such a situation would violate Article 3 (the principle of the best interests of the child), Article 9 (a child and parents cannot be separated against their will), and Article 10 (the right to family reunification) of the Convention on the Rights of the Child.
Reading into Article 33b 3) and 4) of the law of 21 February 2025, it may be assumed that they do not prevent border guards from accepting applications from many categories of persons with special needs, including victims of torture or those at risk of torture from the Belarusian state and non-state actors involved in instrumentalisation. Thus, foreigners arriving from Belarus are “at risk of serious harm in the country from which they have directly arrived in Poland.” Here, it is worth adding that Polish courts in their judgments on the situation on the border with Belarus have recognised that this state does not guarantee respect for fundamental human rights, both for foreigners and its citizens, and there is evidence of brutality by Belarusian services and treatment of migrants in an inhumane or degrading manner, which may in some cases be considered torture (e.g. Supreme Court [2023] and Voivodship Administrative Court in Warsaw [2022a] and [2022b]). Thus, it seems that nothing stands in the way of an interpretation obliging the acceptance of an application not only from a Belarus citizen fleeing persecution by the authorities of their “instrumentalising state”, but also from citizens of other countries.
Finally, also designated in Article 33 b, vulnerable individuals may not be allowed to apply if it is necessary to use force against them when they cross or attempt to cross the border. However, there are no provisions to verify the expediency and proportionality of the measures used by officers. Such provisionssubject to interpretation and the lack of procedures enshrined in the law may also appear challenging for services operating at the border.
In such a situation, however, procedures and minimum guarantees are needed, at least those very modest ones provided for in the Crisis and Force Majeure Regulation 2024/1359 (Article 11 §§6 to 10). Incidentally, it is worth noting that “instrumentalisation”, as defined in Polish law, differs from the quoted above definition in Regulation 2024/1359. The Polish definition also includes the aggressive behaviour of migrants which is a response to the current situation at the border. Still, it may cause interpretation difficulties when the EU regulation takes effect on 1 July 2026.
The new Polish law have been compared with the Finnish Act on Temporary Measures to Combat Instrumentalised Migration of 17 July 2024. This law stipulates in §5 that an application for international protection shall be accepted if, in the opinion of a border guard trained and instructed for the task, it is necessary to protect the rights of a child, a disabled person or another particularly vulnerable person. Moreover, an application for international protection will also be accepted if the person has presented or there are circumstances which, according to a case-by-case assessment by a border guard who has been trained and instructed for the task, make it obvious that the person is in real danger of being subjected to death penalty, torture or other that violates human dignity, primarily in the country from which they have arrived in Finland. The case-by-case assessment can be waived only in exceptional situations where there is an entry using force or a large numbers of people.
Compared to the Finnish model, the Polish solution is much stricter as, even when there is no use of force or a large group of migrants, it does not guarantee a case-by-case assessment by specially trained officers. The Polish model could be deemed the opposite of the Finnish as it only involves case-by-case examinations in exceptional cases. The Polish solution loses track of people who have probably been deceived by Belarusian authorities, are not aggressive and do not arrive at the border crossing point in large groups.
How temporary is the temporary restriction?
Without procedures and at least minimal guarantees, a “restriction” or “suspension” may, in fact, become an “exclusion” of the possibility of applying for asylum for an indefinite period. After all, even the duration of the restriction although clearly set at 60 days, is not certain, since there is always the possibility of it being extended with the approval of the Parliament, and it is not specified how many times an extension can be requested.
On 21 May 2025, the Sejm, by a majority vote of the ruling party and the opposition, agreed with the Council of Ministers that the reasons for introducing restrictions on the right to apply for international protection had not ceased to exist as there was still instrumentalisation posing a serious and real threat to the security of the state or society. Thus, maintaining restrictions for the next 60 days is necessary to prevent this threat, as the measures taken so far have proven insufficient to eliminate it.
In a letter to the Speaker of the Sejm, the Helsinki Foundation for Human Rights points to the groundlessness of extending the restrictions, stating that migration trends on the Polish-Belarusian border are constantly changing and that monthly statistics on attempts to cross the border vary, regardless of the practices of the Border Guard or the laws in force in Poland.
Conclusion
The situation at the border is becoming increasingly tense. Belarusian officers have even engaged in direct provocations and aggressive actions close to the border (see here). Poland, like other countries, has the right to strengthen border protection. However, the nature of the measures introduced, particularly preventing the vast majority of foreigners from applying for asylum at the border crossing, means that the measures must be considered excessive and disproportionate to the objective pursued. They therefore violate human rights.
The adopted solution contradicts a wide array of international and EU laws, including Article 3 ECHR, Article 4 of Protocol No.4 ECHR, Article 18 and 19 of the EU Charter of Fundamental Rights, secondary EU law including the Crisis and Force Majeure Regulation 2024/1359 (Article 11 §10), Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33 of the Geneva Convention Relating to Refugee Status. The new legislation also contradicts Article 56 [2] of the Constitution of the Republic of Poland, which is provides a guarantee of the right to apply for international protection as well as Article 31 [3] which states that limitations upon the exercise of constitutional freedoms and rights cannot violate the essence of freedoms and rights.
Poland’s response to the instrumentalisation of migration seems to be an example of an extreme solution illustrating the conflict between national security and the right to asylum. Even after the restrictions will be withdrawn one day, the right to asylum will emerge more damaged from this conflict. As Daniel Thym pointed out in this blog and in his article, “the time of dynamic interpretation in favour of migrants may have come to an end.”