Expulsion of foreigner may violate their right to court

The organisations observed that the Border Guards has been expelling foreigners named in final administrative decisions issued by the Council for Foreigners before they can file a judicial review complaint before the Provincial Administrative Court in Warsaw or even before the Court enters an injunction suspending the enforcement of a decision subject to review. Actions of the Border Guards deprive foreigners of an ability to ask for the judicial review of the decisions or make their case before court.

A foreigner applying for the refugee status is required to show that their fear of return to their country of origin results from the actual risk of persecution or some other threat. An administrative body’s refusal to grant the refugee status to a foreigner is based on the conclusion that the applicant is not at such risk. The Border Guards expels a foreigner from Poland to their country of origin before the court can decide whether or not the risk actually exists. In consequence, if an administrative body makes an error, later remedied by the Provincial Administrative Court in Warsaw or the Supreme Administrative Court, it may be the case that protection granted to a foreigner by virtue of the judicial revocation of the reviewed decision is of no practical significance for the person already returned to the country they feared to go to in the first place.

The discussed practice of the Border Guards violates not only the constitutional right to court exercisable by all persons, but also the EU law. Furthermore, such actions prevent administrative courts from exercising the effective judicial review of administrative decisions issued in refugee proceedings thereby infringing the Polish constitutional principle of checks and balances between the powers and undermining the status of judicial power.

Already at the beginning of 2012, the Helsinki Foundation for Human Rights wrote to the National Border Guards Headquarters referring to individual cases of foreigners being deprived of their right to court by reason of expulsion.