The Ministry shared the HFHR’s point of view and issued a recommendation for the Chief Commissioner of the Border Guard, requesting that the Border Guard refrain from deporting foreigners whose expulsion decisions are being reviewed by the Court, even before new regulations come into force.
This time, the case involved a single woman with two minor children. She was expelled from Poland even though her appeal against the refusal to grant her the refugee status had been filed with the PAC and the motion for suspending the enforcement of her expulsion had not been heard at the time. Having learned about the deportation date, a HFHR lawyer drafted a submission to the Court, applying for a decision immediately suspending the execution of the expulsion decision. Given the absence of any response, the foreigner was deported several days later.
The HFHR has repeatedly reported similar cases before. The relevant practices of Polish authorities have already become the reason for suspending the handing over of an asylum seeker from the Netherlands to Poland under the EU Dublin II Regulation. A court in Hague held that Poland violated the right to an effective judicial remedy (Article 47 of the EU Charter of Fundamental Rights), risking a failure to perform obligations resulting from the principle of non-refoulement, or the prohibition of sending a foreigner back to a country in which they face the risk of persecution.
Finally, as part of the legislative works on the new Foreigners Act, the HFHR has successfully secured a change in law in this respect – according to the new law, if a foreigner submits a complaint to the PAC accompanied with the motion to suspend the enforcement of the expulsion decision, he or she will not be deported until the Court hears the motion to suspend. However, although the Foreigner Act of 12 December 2013 will become law as of 1 May 2014, the past practice has not been changed. This is why the HFHR, describing the case of expulsion of a citizen of the Russian Federation, indicated the need to change it even before the new law becomes effective.
“We are satisfied with the response from the Ministry of Interior and the recommendations for the Border Guard because if these recommendations are followed, foreigner’s fundamental rights will be protected. We have been arguing this for a long time, regardless of the date when the new law enters into force”, says Karolina Rusiłowicz, HFHR’s lawyer. “Unfortunately, this change will not help our client whom we are unable to contact after she was deported from Poland”, she adds.
