Transcript Implementacja prawa europejskiego w zakresie recepcji

European Union Reception Law
Implementation
- best practices evaluation
Comparison of protection and
reception sytems within EU
Borders
Implementation and harmonisation – aims of ICF project
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Harmonization of the asylum systems shall be based on positive understanding of
individual human rights
Shall be constructed within broad discussion of many stakeholders about the
meaning of human rights, standards of protection and reception
Shall rise the public consciousness about the range of aliens rights and the polish
citizens’ attitude towards foreigners
ICF manual shall be an easy and comprehensive tool of practical implementation of
asylum law or best practices in the area of reception
The aim of the project is to promote higher standards of protection
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According to the rules of democratic standards
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According to Poland’s international obligation
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According to need of implementing best practices
The major rights regarding reception of
asylum seekers
It is in the very nature of minimum standards that Member States have
the power to introduce or maintain more favourable provisions for thirdcountry nationals and stateless persons who ask for international
protection from a Member State.
Commentary: acquiescence defines need and obligation
What is the scope of directive?
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Objects of directive: asylum seekers
(there is need to include persons with subsidiary forms of protection in the
scope of directive, as Geneva Convention definition is understood strictly and
implied cautiosly)
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Subject- implementation of directive’s aim
The general aim is to unify and introduce the common policy of
reception among EU member states
Define the minimal standards of reception conditions of asylum
seekers (legal status + social rights)
Directive’s
Catalog of Rights
Right to information about the legal status
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Directive:
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Benefits and obligations within
reception process (obligatory)
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Polish Law:
the
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Information about organizations and groups
(legal aid, social and medical help) (obligatory)
Guidelines given by authority to whom
application is submitted (a gap between theory
and practice)
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A liberty of contact is not the same as
obligatotion to inform
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Should procedure conduct in polish language?
Information
must
be
in
writing
(exceptionally in oral)
Information
provided
in
language
understandable to alien
„Administrative procedure in which alien is
present, should be conducted in language, that
foreigner is familiar with on the level enabling
him/her to present facts and circumstances,
relevant to determine his legal status” 1999.08.17, Supreme Administrative Court
verdict (V SA 89/99, LEX nr 49870)
Personal freedom of aliens
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Directive:
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The general principle of freedom of movement
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The principle
restriction
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Gradation of intervention
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of
subsidiarity
of
freedom
full liberty → order to stay in certain area →
order to stay in certain place/address →
detention
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Member states shall provide for the possibility
of granting applicants temporary permission to
leave the place of residence
Procedure, concerning freedom of movement
restriction must not be discriminatory, and have
to be fair and justifiable
Polish Law:
Art. 40. An alien applying for granting the refugee status shall not be detained unless:
1) he / she submits an application for granting the refugee status:
a) during the border control, not having the right of entry on the territory of the Republic of
Poland,
b) staying on the territory of the Republic of Poland illegally;
2) prior to submission of an application for granting the refugee status he / she:
a) crossed or attempted to cross the border contrary to the laws,
b) obtained the decision on obligation to leave the territory of the Republic of Poland or the
decision on expulsion;
3) the circumstances referred to in art. 88 sec. 1 of Act of 13 June 2003 of Aliens apply and
this fact has occurred after submission of an application for granting the refugee status.
Commentary:
• General principle consumed by exceptions
• Principle of subsidiary is based on the trust of the state to
individuals
• Trust to individuals is predominant to interest of the state,
public order or procedural promptness, unless individual forfeit
this trust
Rights of the families in reception
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Directive:
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Polish Law:
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Family: spouse (oblig.) or stable partner (fak.) and their
own or adopted unmarried minor children or the children
of the spouse
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To vestigial regulations
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Family unity applied only to marriages
recognized by polish legal system
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The principle of family unity in reception
Commentary:
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The guidelines shall be given to those who are
apart
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No detention of family
justified by state security)
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Necessity of more entire regulation
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EXTEND THE FAMILY DEFINITION (to
cover stable partners, gay couples,
ascendants, siblings)
members
(unless
Right to education
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Directive:
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Polish Law:
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Access on equal rights to citizens (obligatory)
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Access to education at least up to secondary
schools (obligatory)
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No particular regulations in polish law
Difficulties with adults language teaching
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Access to education no later than 3 months
since lodging application
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Possibility to postpone the access for a year
(time for language learning)
≠
possibility to restrict access to public schools
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Problems with access of the children to schools
(unwillingness of headmasters, tensions between
children, no willingness to accept children not speaking
polish to schools)
Commentary:
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Positive example of actions of Mazovia
Education Office
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Recommendations:
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Access to private schooling
Access to higher education
Immediate access to education
Social Benefits
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Directive obliges member states to provide
asylum seekers with sufficient social benefits
for the period of determination procedure:
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Benefits should include:
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accommodation
approvistation
Appropriate clothing
Medical care
Persons with special needs shall be granted
benefits adequate to their needs and condition
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Polish law was generally implemented
correctly.
Problems:
Broader margin of appreciation in granting and
withdrawing of the benefits
No social benefits for persons with tolerated
stay, no integration for persons with
tolerated stay
Logistic problems with reception centers
(unjustifiable savings)
Problem of medical care and epidemic threat
Problem of designation and recognition of
persons with special needs
Problems with understanding cultural
differences in providing social benefits
The condition of accommodation improved due
to flow of EU funding resources
Persons with special needs
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Directive:
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Polish Law:
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Broad catalog of persons with special needs,
including:
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Incorrect implementation of the catalog
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No recognition procedures
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No sufficient mediacal care or harm
reduction policy
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minors and unaccompanied minors
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Disabled persons
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elders
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Victims of torture,
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Victims of rape, physical, sexual or psychological
violence
Border Guards had been trained by HNLAC, with
Cooperation of UNHCR in the series of seminars.
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Reception conditions must be adequate to condition
and needs of those persons
Member States shall ensure that, if necessary,
persons who have been subjected to torture, rape or
other serious acts of violence receive the necessary
treatment of damages caused by the aforementioned
acts.
These trainings included issue of persons with
special needs.