Poland – Supreme Administrative Court rules in cases of refusal of entry at the border

Thursday, September 20, 2018

On 20 September, the Supreme Administrative Court of Poland ruled in two cases (II OSK 890/18 and II OSK 345/18) concerning the refusal of entry to Poland by decisions of Border Guard officials.

The refusal of entry was based solely on official notes drafted by officers of the border police forces, stating that the purpose of entry was of an economic nature. The applicants, who had been refused entry, challenged this decision but their action was dismissed. They then appealed before the Voivodship Administrative Court of Warsaw, claiming that they had verbally expressed their will to submit an application for international protection. The Warsaw Court agreed with the applicants, finding that the procedure was unlawful, as there was no administrative protocol in place to ensure the course of the proceedings.

On appeal, the Supreme Court upheld the lower court’s decision and clarified that the content and form of the notes could not be treated as a primary piece of evidence. It went on to state that in situations such as the one at issue, namely the need for international protection, proper and formal evidence should be relied upon, instead of unofficial notes. Moreover, it noted that the authorities failed to base their decision to refrain from collecting more evidence on a strong reasoning. In addition to this, the Court observed that an additional limitation of the investigation procedure only to the control of documents held by a foreign national may be applied only in exceptional situations.

Regarding the evidence obtained, the Court concurred with the reasoning of the contested decision, restating that only because the evidence is lawful does not mean that it has primary probative value. It confirmed the lower court’s assertion that such important issues cannot be determined solely on the basis of a brief service note. Therefore, a sufficiently detailed documentation of the interview, allowing for at least an approximate recreation of the interview (i.e. questions and answers appearing in the interview) is of key importance for a possible recognition of the foreigner as a person seeking protection against persecution in the country of origin, enabling thus a judicial and institutional review of a possible decision on refusal of entry at the border.

Lastly, the Supreme Court also dismissed the Border Police’s arguments that they are facing organisational difficulties and that a number of people at the border mistakenly use the term “refugee”. According to the Court, such difficult circumstances cannot justify such a laconic documentation of the course of an interview with a foreigner on the so-called "second line", such as the one contested by the applicants. The Court dismissed the application to annul and ordered the administrative authorities to reassess the case, taking into account the above legal considerations.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Jacek Białas, ELENA Coordinator for Poland, for bringing these cases to our attention.

This item was reproduced with the permission of ECRE from the weekly ELENA 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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