M.K. and Others v Poland: Repeated refusal to accept asylum applications amounted to collective expulsion

Thursday, July 23, 2020

On 23 July 2020, the European Court of Human Rights published its judgment in M.K. and Others v Poland (Application Nos. 40503/17, 42902/17, 43643/17) concerning the repeated refusal of Polish border authorities to examine applications for international protection.
The case concerns various applications submitted by Russian nationals, including children, who attempted to cross the Terespol border between Poland and Belarus on multiple occasions. The applicants, who were attempting to flee from Chechnya, stated that they feared for their safety and that they wished to apply for international protection. They were turned away by Polish border authorities on the basis that they had not stated that they would face persecution in Chechnya. The Polish authorities refused to implement interim measures granted by the Court, which required the authorities to refrain from returning the applicants to Belarus. They complained, inter alia, that they had been denied access to asylum procedures at the Polish border and exposed to a real risk of treatment contrary to Article 3 ECHR; that the refusal to examine their applications amounted to a collective expulsion in violation of Article 4 Protocol No. 4; and no effective remedies against these violations were provided, in violation of Article 13 ECHR.

The Court observed that if a State removes an asylum applicant to a third country without examining the merits of the application itself, it must review whether the applicants would have access to adequate asylum procedures in said third country. It noted, inter alia, that the State’s claim that the applicants did not present documents requesting international protection was not credible, and that there was evidence to support the claim that their asylum applications would not be treated seriously by Belarusian authorities in the event of their return. The Court concluded that the Polish authorities had failed to review the applicants’ requests for international protection, in compliance with their procedural obligations, contrary to Article 3 ECHR. Moreover, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, the Polish authorities knowingly exposed the applicants to a serious risk of chain-refoulement and treatment prohibited by Article 3 ECHR in Belarus.

Having determined that the applicants’ removals amounted to expulsion, the Court had to assess whether it was collective in nature. It noted, inter alia, that while the applicants had been interviewed by border authorities and individual decisions had been issued for the applicants, these decisions did not adequately reflect the applicants’ fear of persecution and had, instead, emphasised arguments supporting the identification of the applicants as economic migrants. Moreover, the Court identified that this was a common practice of misrepresenting statements of individuals attempting to cross the border. It therefore concluded that the decisions to turn away the applicants were taken without proper regard to individual situations amounted to a collective expulsion contrary to Article 4 Protocol No. 4. The Court added that the applicants did not have access to effective remedies to challenge the refusal of entry amounted to a violation of Article 13 ECHR in conjunction with Article 3 and Article 4 Protocol No. 4.

Furthermore, the Court found that by failing to implement the interim measures granted by the Court and refrain from returning the applicants to Belarus, the applicants had been put at risk of treatment that the measures aimed to prevent, contrary to Article 34 ECHR.

Photo: Outlandos [ym], February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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