Transcript Implementacja prawa europejskiego w zakresie recepcji

European Union Asylum
Procedure Law Implementation
- evaluation of Polish experience
The major problems of the
migration law implementation
process in Polish legal system
Harmonisation through implementation – aims of EU asylum
policy
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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 and standards of protection
Directives are binding according to their principles, not just particular regulations and
for that reason their implementation doesn’t need to be straightforward
European directive is more of a notion of common ideas than just a legal act, so
implementation shall serve to all principles that gave impulse to issue such regulation.
The common asylum policy shall serve the idea of establishment and systematical
expansion of the area of freedom, safety and justice
Unfortunately these principles and rules are not widely shared by the government
of Poland
The only principle followed by Polish authorities is legal obligation (not need) of
implementation
Major regulations regarding the principles of
the procedure of determination of the asylum
seekers status
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
Problems with minimum standards:
•Introduction of the minimum standards, contrary to its initial aim, caused a decrease of standards in all
dimensions of asylum system: procedural, in qualification, and in reception.
•higher than minimum standards in one of the Member States cause the feeling of automatic discrimination in
those who are bellow. Though, each time the higher standard is introduced somewhere it shall become
minimum for the others
•The standards of the procedure are really minimal: causing the double standards problem (one for EU citizens,
one for the other aliens)
The progress of implementation
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There is no asylum nor migration policy in Poland
There is no large and strong migration population nor organised
community in Poland
There is no public discussion about migration issues in Poland
(the problem of migration, asylum, protection is not a headline
problem)
The migration law institutions and regulations are inconsistent,
incoherent and do not create a firm, flexible system (all
regulations are introduced ad hoc)
For that reason qualification and procedure directive are not yet
implemented.
Major problems with implementation
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Lack of asylum policy, unimportance of the migration issues,
imperceptibility of the migrants and their problems
The hostile statements of politicians slow down the harmonization
progress
Problems with translations of directives and definitions of the asylum
institutions
Lack of competences and knowledge of the governmental authorities
dealing with asylum cases (no common trainings on legal issues,
international standards and obligations, cultural differences, etc.)
No adequate financial resources cause delays in procedure, lack of
interpreters, as well as other facilitations for asylum seekers in
procedure
Polish asylum and migration regulations
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Act on aliens of 13 June 2003 (Journal of Laws of
2003, No 128, it. 1175)
Act on granting protection to aliens within the
territory of the Republic of Poland (Journal of Laws
of 2003, No 128, item 1176)
Act of 14 July 2006 on the terms and conditions of
the entry into and the stay in the territory of the
Republic of Poland of the citizens of the EU Member
States and the members of their families (Journal of
Laws No. 144, item 1043)
Basic principles of the
fair procedure
In the scope of the implementation
process in Poland
Right to information about the legal status
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Directive:
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Polish Law:
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Benefits and obligations within the
refugee status determination process
(obligatory)
The nature and results of decision,
guidelines for effective remedy in
understandable language (obligatory)
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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
obligation to inform
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Should procedure be conducted in Polish
language?
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Information about organizations and groups
(legal aid, social and medical help, UNHCR)
(obligatory)
Information
must
be
in
writing
(exceptionally provided orally)
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
Polish Law:
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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.
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Directive:
Commentary:
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The general principle of freedom of movement for
the asylum seekers (art. 17)
• General principle consumed by exceptions
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The principle of subsidiarity of freedom restriction
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Gradation of intervention
• Principle of subsidiary intervention is based on the trust of the
state to individuals
full liberty → order to stay in certain area → order to
stay in certain place/address → detention
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Procedure, concerning freedom of movement
restriction must not be discriminatory, and have to
be fair and justifiable (referring to reception
directive) + immediate judicial review
• Trust to individuals is predominant to interest of the state,
public order or procedural promptness, unless individual forfeit
this trust
•In Poland deprivation of freedom is totally arbitrary
•Projected amendments
What was implemented?
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The access to RSD procedures – recognition of the application as refugee status
motion
Provision of giving instructions on rights and obligations in the procedure
Right to stay on the territory of Poland till the procedure is concluded (excluding
judicial review – no suppressive effect on deportation order)
Right to free of charge legal aid and counseling (only covering the costs of judicial
review)
Higher standards of protection of unaccompanied minors
All obligations vested on aliens was fully implemented
All circumstances for manifestly unfounded applications had been introduced
No priority for persons with special needs was given in the course of RS application
consideration
Which standards are higher?
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Access to the files and access to asylum seekers placed
in detention areas
Detailed interview in all kinds of procedures – no cursory
interviews
The high standard of unaccompanied minors treatment
and custody
No arbitrary national list of safe third countries and safe
countries of origin
No border or transit zones procedures
Two instances of administrative procedures (high legal
standards – low administration practice)
Two instances of cost free judicial review
What has not been implemented?
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Right to make own statements by all applicants in joint applications (covered by
amendments project)
Art. 8.1: application presented late without just reasons is transferred to fast procedure
(manifestly unfounded application)
Art. 8.2: no sufficient trainings causing lack of proper knowledge, no miscellaneous COI
database was introduced
Justification of decisions are given in Polish language
Art. 12 was not introduced (resignation from full evidence process) – positive effect
Lack of competences of the interviewing authorities – no regulations concerning
competence assessment process
No state financed legal aid at administrative level
No confidentiality of asylum seekers identity granted – obligation to inform Embassies
about all aliens illegally present on the territory of Poland
No suspension effect in judicial review = no effective remedy
For more information on Polish asylum system:
http://pomocprawna.home.pl/dosciagniecia/ICF/Raport.doc
For HNLAC statement to EU Commission Green Paper on
Future Common Asylum System:
http://pomocprawna.org/HNLAGreenPaperReply2.doc