According to the governmental bill, the head of the Border Guard unit supervising a guarded centre would be the only official empowered to decide whether or not to release a foreigner from the centre. A decision to this effect could be issued ex-officio, for instance in circumstances preventing further detention of a foreigner. Serious reservations have been raised by a proposed regulation which allows making that decision also upon a motion filed by a foreigner. “Accepting this measure would mean relinquishing a much more potent review mechanism operating under the law currently in force", says Ewa Ostaszewska-Żuk, HFHR lawyer.
Today, the legal power to decide whether or not a foreigner’s stay in a centre should be continued is vested in courts. Under new legislation, it is hardly conceivable that a Border Guard authority, the recipient of the foreigner’s motion for release, would ever admit such a request”, explains Adam Chmura, a lawyer with the Association for Legal Intervention.It is rather improbable that a Border Guard authority would accept a motion submitted by a foreigner in the absence of finding prerequisites for an ex-officio release.
However, a particularly disturbing legislative change is the rule governing the right to an appeal against the Border Guard’s denial of the motion. Under the draft law foreigners may lodge an appeal provided the motion for release was filed after at least three months from the date of decision to place the foreigner in a guarded centre. In practice, this would mean that no appeal would be available since, as a general rule, foreigners are placed in centres for a maximum duration of three months.
“In other words, foreigners would be actually deprived of the right to challenge the Border Guard’s decision”, says Ms Ostaszewska.
The HFHR and the Association for Legal Intervention also note that the proposed scope of the foreigner’s motion for release from a guarded centre does not comply with the European law. The relevant EU Directive provides that detention applied to a foreigner must be “reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio”. In cases of prolonged detention, the review must be made by a court.
“What is disturbing here is that far-fetched modifications have been introduced at such an advanced stage of the governmental works. They have appeared literally few days before the Council of Ministers adopted the draft of the new Foreigners Act”, notes Witold Klaus, President of the Association for Legal Intervention. Mr Klaus adds that the modifications have not been excessively consulted.
“We celebrate the Refugee Day all year long so I think that the government should be equally attentive to the problems of foreigners for 365 days a year and not just on this one day”, says Danuta Przywara, President of the Helsinki Foundation for Human Rights. “On my part, I can declare, as usual, that we will closely scrutinise both the works on the bill and the actual conditions created for foreigners in Poland”, promises Ms Przywara.
